HomeMy WebLinkAbout2009/04/21 Item 5
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
CITY COUNCIL
AGENDA STATEMENT
~!'f:.. CITY OF
,~- (HULA VISTA
April 21, 2009. Item No.: S
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING THE FORi\1AL CONSULTA1'IT
SELECTION PROCESS, APPROVING THE SECOND
AMENDMENT TO A1"l" AGREEMENT BETWEEN THE CITY OF
CHULA VISTA, MARION B. BORG ENVIRONMENTAL
CONSULTING AND MCMILLIN OTAY RANCH, LLC, FOR
MANAGING M,ID PROCESSING OF THE ENVIRONMENTAL
IMP ACT REPORT (EIR) FOR THE EASTERN URBAN CENTER
(EUC) SECTIONAL PLANNING AREA (SPA) PLAN
DEPUTY CITY MAt"l"AGER / DEVELOPMENT SERVICES
DIRECTOR ~
CITY MANAGER
4/5THS VOTE: YES D NO 0
BACKGROUND
The Eastern Urban Center (EDC) is a large and complex project in the Otay Ranch requiring the
attention of senior-level staff and uniquely qualified consultants. Marion B. Borg Environmental
Consulting has been working on the EUC since 2007, and the project is nearing completion. The
proposed contract amendment will extend the contract period and add sufficient funds to take the
project through completion of the Environmental Impact Report (EIR), Sectional Planning Area
(SP A) Plan, and related public hearings. Although staff anticipates completion of the proj ect in
Fall 2009, the Amendment extends the contract for a 12-month period through July 2010. The
Second Amendment is for an additional amount not to exceed $78,000, bringing the total
contract amount to $232,000.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that the activity is not a
"Project" as defined under Section 15378 of the State CEQA Guidelines because it involves only
approval of a contract amendment for professional services; therefore, pursuant to Section
15060( c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no
environmental review is necessary.
RECOMMENDATION
That City Council approve the resolution.
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APRIL 21, 2009, Item~
Page 2 of3
BOARDS/COMlVlISSION RECOMMENDATION: None.
DISCUSSION
Background
The EVC project is intended to provide a unique functional and symbolic center for Otay Ranch.
The complexity of this important urban project necessitates assigning the EVC EIR project to a
uniquely qualified, very experienced, project manager. McMillin Otay Ranch, LLC, (Applicant)
and primary developer of the EVC, agreed to fund a dedicated position to process the EIR for
this proj ect.
Marion B. Borg has served as the Environmental Project Manager for the Eastern Vrban Center
(EVC) project under an existing 3-party agreement since March 2007. The First Amendment and
Original Contract Agreement were for $ 78,000 and $ 76,000 respectively. The total contract
amount will be for $ 232,000. The duration of that 3-party agreement was expected to be an
adequate timeframe to track along with the processing of the development application for the
EVC. The complex nature of the EVC project has necessitated an extension to the project's
overall processing schedule. In order to provide continuing environmental project management
for the EVC, it has become necessary to amend the duration of that contract. The amendment
represents an additional $78,000 of services to accommodate approximately 450 hours of work
effort, and an additional 15 months (April 1, 2009 through June 30, 2010).
Waiver of the Formal Consultant Selection Process
Staff recommends Council waive the formal bid process and amend the existing contract for the
services of Marion B. Borg. The complex nature of this signature project in Chula Vista requires
a senior-level environmental planner with applicable experience. For the past nine years,
Marion B. Borg has provided professional services to the Planning and Building Department as
an Environmental Project Manager through both two-party and three-party contracts as an
extension of staff. She also has the proven skills for managing the preparation of complex multi-
discipline environmental reports. In the recent past, she has managed the preparation ofEIRs for
both the Village Two and Village Seven SPA Plans in Otay Ranch. Ms. Borg has managed this
project for the past three years and is best suited to continue in that capacity without delay due to
an understanding 0 f the project and the process. Consequently, the competitive bidding process
requirements would be impractical in this case and waiving these requirements and amending
Marion B. Borg's contract would best serve the City's interests.
DECISION-MAKER CONFLICTS:
A map has been prepared verifying the property holdings of the City Council in relation to the
property boundaries of this project. Staff has reviewed the property holdings of the City Council
and has found no property holdings within 5(10 feet of the boundaries of the property that is
subj ect to this actio 11.
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APRIL 21, 2009, Item~
Page3of3
FISCAL IMPACT
"
There is no impact to the General Fund. The original contract was for up to $76,000, the fIrst
amendment was for up to $78,000, and the second amendment is for up to $78,000. All funding
comes from developer deposits.
A TT ACHlVIENTS
1)
2)
3)
4)
Property Holdings Map
Second Amendment
First Amendment
Original Agreement
Prepared by: Harold Phelps, Alep Associate Planner, Planning & Building Department
J-IPlanninglOtayranchlEastem Urban Center SPA 13 Party AgreementslCOUNCIL AGENDA STATEMENT Borg. doc
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Staff has reviewed the property holdings of the City Council
and has found no property holdings within 500 feet of the
boundaries of the property that is subject to this action.
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CtIUlA VlsrA
2ND Anlendment to EVC EIR Contract (3 Party Agreement)
A
NORTH
RESOLUTION NO.. 2009-
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CHULA VIST A WAIVING THE FOR1Y1AL
CONSULT Ai"fT SELECTION PROCESS, APPROVING
THE SECOND AMENDMENT TO AN AGREEMENT
BETWEEN THE CITY OF CHULA VISTA, MARION B.
BORG ENVIRONMENTAL CONSUL TING AND
MCMILLIN OTA Y RAi"fCH, LLC, FOR MAi"fAGING
AND PROCESSING OF THE ENVIRONMENTAL
IMPACT REPORT (EIR) FOR THE EASTERN URBAN
CENTER (EUC) SECTIONAL PLAi~""NING AREA (SPA)
PLAN
WHEREAS, in March 2001, the City entered into a two-party agreement with
Marion B. Borg Environmental Consulting to work as an extension of staff; and
WHEREAS, on March 13, 2007 the City Council approved a 3-party agreement
between the City of Chula Vista, Marion B. Borg Environmental Consulting, and
McMillin Otay Ranch LLC, for managing and processing of the Environmental Impact
Report for the Eastern Urban Center Sectional Planning Area (SPA) Plan; and
WHEREAS, on August 5, 2008 the City Council approved a fIrst amendment to
this agreement; and
WHEREAS, unforeseen issues and a redesign of the project have delayed the
completion of entitlements; and
WHEREAS, the three-party agreement, as amended, does not have suffIcient
remaining funding or timeframe to complete said tasks; and
WHEREAS, the Consultant's services are still required for continued processing
of entitlement agreements for the McMillin Otay Ranch, LLC's EUC SPA Plan project;
and
WHEREAS, the Consultant's prior work experience with the City, intimate
knowledge of the EUC SPA Plan, and extensive work performed on the project make her
uniquely qualifIed to continue as the Environmental Project Manager for the EUC EIR;
and
WHEREAS, staff recommends waiving the formal bid process as impractical due
to the complex nature of the project, and the Consultant's familiarity with the entitlement
process as it applies to this proj ect.
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NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby waive the formal consultant process.
BE IT FURTHER RESOLVED that the City Council does hereby approve the
second amendment to the three-party agreement with Marion B. Borg and McMillin Otay
Ranch, LLC for consulting services on the Eastern Urban Center Project.
Presented by
Approved as to form by
()(:
/.-..\ r Ck' / i 17J? )
. ){~V
i (' _Bart/t: Mil ld ~
1Jf\ City Attorney
Gary Halbert, P.E., AICP
Deputy City Manager IDevelopment
Services Director
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
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"-----~~ C: ~sfcld
{0 rtity Attorney
Dated: Y \ i ~! rl1
SECOND AMENDNfENT TO THE THREE PARTY'
AGREENfENT BETWEEN THE CITY OF CHULA VISTA,
MARION B. BORG, ENVIRONNfENTAL CONSULTING, AND
MCMILLIN OTA Y RANCH, LLC, APPLICANT
FOR CONSULTING WORK TO BE RENDERED
vVITH REGARD TO THE APPLICANT'S
EASTERN URBAN CENTER PROJECT
5-7
SECOND Al\l.ENDMENT
To the Three Party Agreement
Between the City of Chula Vista,
Marion B. Borg, Environmental Consulting, and
McMillin Otay Ranch, LLC, Applicant
For Consulting Work to be Rendered
With Regard to the Applicant's Eastern Urban Center Project
Recitals
This Second Amendment is effective as of April 1, 2009 by and between the City of
Chula Vista ("City"), Marion B. Borg Environmental Consulting ("Consultant") and .
McMillin Otay Ranch, LLC ("Applicant"), with reference to the following facts:
WHEREAS, City, Consultant and Applicant previously entered into an agreement
effective January 1, 2007 whereby Consultant was to manage the preparation and
processing of the Environmental Impact Report (EIR.) for the Eastern Urban Center
("Original Agreement"); and
WHEREAS, City, Consultant and Applicant subsequently entered into a First
Amendment on June 30, 2008, whereby Consultant was to continue to manage the
preparation and processing of the Environmental Impact Report (EIR.) for the Eastern
Urban Center ("First Amendment"); and
WHEREAS, Consultant estimates an effort of approximately 20 hours a week dedicated
on this flroject for the next twelve months to complete the entitlement process; and
WHEREAS, Consultant is uniquely qualified due to work experience in the City of Chula
Vista and experience acting as an extension of the Community Planning Section staff on
this project over the last three years and working on this project while in the employ of
the City; and
WnEREAS, all work performed by the consultant has been performed to the satisfaction
of the City's Development Services Director.
NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the
parties set forth herein, City and Consultant agree to amend the Original Agreement as
follows:
1. Exhibit A, Section 6, entitled Schedule, Milestone, Time-Limitations within which to
Perform Services ("Schedule"), is hereby amended to read as follows:
Dates or Time Limits for Delivery of Deliverables:
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Under direction of the Principal Planner, and will function as an extension
of City Staff.
Dates for completion of all Consultant services:
June 30, 2010, or adoption of the EUC SPA Plan by City Council,
whichever is earlier.
2. Exhibit A, Section 8, entitled Contract Administrators, is hereby amended to read as
follows:
City: Scott Donaghe, Princi1;Jal Planner, City of. Chula Vista, Planning and
Building Department, 276 Fourth Avenue, Chula Vista, CA 91910, ph: (619) 409-
5806, F},X: (619) 409-5859, emai1: sdonaghe@ci.chula-vista.ca.us.
3. Exhibit C, entitled Compensation Schedule and Deposit, Not-to-Exceed Limitation on
Time and Materials Arrangement, is hereby amended to add the following paragraph:
Notwithstanding the expenditure by Consultant of time and materials in excess of
said Maximum Compensation amount, Consultant agrees that Consultant will
perform the entire General and Detailed Services herein required of Consultant
for $78,000 including all Materials, and other "reimburseables" ("Maximum
Compensation").
4. All other terms and conditions of the Original Agreement, as amended by the First
Amendment, not specifically modified by this Second Amendment shall remain in
full force and effect.
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Signature Page
To the Second Amendment to the Three Party Agreement
Between the City of Chula Vista,
Marion B. Borg, Environmental Consulting, and
McMillin Otay Ranch, LLC, Applicant
For <=;onsulting Work to be Rendered
With Regard to Applicant's Eastern Urban Center
IN WITNESS THERE8F, City and Consultant have executed this Third
Amendment to the Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
City of Chula Vista
Consultant: Marion B. Borg
By:
By:
l .
/Ilb~m I!J~
Cheryl Cox, Mayor
Dated:
Dated:
.If /151 ()-j
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Attest:
Approval as to Form:
By:
Donna Norris, City Clerk
Bart C. Miesfield, City Attorney
Applicant:
McMillin Gtay Ranch, LLC a Delaware
limited liability company By: McMillin
Companies, LLC a Delaware limited
liability company Itrirger
By: ~
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Printed Name: I//IW (Ti&7j//t"'/Zi!
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Printed Name:A/'C40LA':, ;; [tt
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FIRST AMENDMEr-.'T
To the Three Party Agreement
Between City of Chula Vista,
Marion B. Borg Environmental Consulting, Consultant, and
MclVlillin Otay Ranch, LLC, Applicant
For Consulting Work to be Rendered
with regard to Applicant's Eastern Urban Center Project
Recitals
WHEREAS, all work performed by Consultant has been performed co the satisfaction
ar.d Under the direction ofthe City's Acting Director ofPlal1.l1.i:ng.
This First Amendment is effective as of July I, 2008 by and between the City of Chula Vista
("City"), Marion B. Borg Environmental ConsultLllg ("Conmltant") and McIv1illin Otay Ranch,
LLC ("Applicant"), with reference to the following. facts:
WHEREAS, City, Consultant and Applicant previously entered into an agreement
effective January 1, 2007 whereby Consultant was to manage the preparation and processing of
the Environmental Impact Report (EIR) for the Eastern Urban' Center ("Original Agreement");
and
\VHEREAS, City, Consultant and Applicant agree that the schedule for certification of
the EIR has exceeded the time frame of the original agreement; and
WHEREAS, Consultant estimates an effort of 20 hours per week dedicated on tb.is
project for the next twelve months to complete the entitlement process; and
WHEREAS, Consultant is uniquely qualiiied due to work experience in the City of Chula
Vista and experience acting as an extension of the Community Planning Section staff on this
project over the last year and working on this project while in the employ of the City; and
NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the
parties set forth herein, City, Aflplicaot and Consultant agree to amend the Original AgreemerJ
as follows:
l. Exhibit A, Section 6 entitled Schedule, Milestone, Time-Limitations within which to Perform
Services ("Schedule"), is hereby amended (0 read as follows:
Dates or Ti:rr.e Limits for Delivery of Deliverables:
Under direction ofw.l.e Senior Planner, and will fullction as an extension of City
staff.
Dates for completion of all Consultant services:
June 30, 2009, or adoption orthe EUC SPA Plan by City Council.
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2. Exhibit A, Section 8, entitled Contract Administrators, is hereby amended to read as follows:
City: Scott Donaghe, Senior Planner, City of Chula Vista Planning and Building
Department, 276 Fourth Av, Chula Vlsta, CA 91910, ph: (619) 409-5806, F A..X: (619) 409-5859,
email: sdoname(@.ci.chula-vista.ca.us.
3. Exhibit A, Section 9, entitled Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code, is hereby amended to read as follows:
( ) Not Applicable.
Not an FPPC Filer.
( X ) Category No. I.
Investments and sources of income.
(X) Category No. 2.
Interests in real property.
(X) Category No.3.
Investments, interest in real property and sources of
income subject to the regulatory, permit or licensing
authority of the department.
(X) Category No.4.
Investments in business entities and sources of
income which engage in land development,
construction or the acquisition or sale of real
property.
(X) Category No.5.
Investments in business entities and sources of
income of the type which, within the past two years,
have contracted with the City ofChula Vista
(Redevelopment Agency) to provide services,
supplies, materials, machinery or equipment.
( X ) Category No.6.
Investments in business entities and sources of
income oft."!e type which, within the past two years,
have contracted with the designated ernplo yee's
department to provide services, supplies, materials,
machinery or equipment.
(X) Category No.7.
Business positions.
4. Exhibit C, entitled Compensation Schedule and Deposit, Not-ta-Exceed Limitation on Time
and Materials Arrangement, is hereby amended to read lIS follows:
Notwithstanding the expenditure by Consultant of time and materials in excess of said
Maximum Compensation &:nount, Consultant agrees that COGSultaJlt will perform ali of
the General and Detaiied Services herein required of Consultant for $ 78.000
including all Materials, and other "reimburseables" ("Maximum Compensation").
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5. Exhibit C, entitled COl!)pensation Schedule and Deposit, Rate Schedule, is hereby amended to
read as follows:
Rate Schedule
Category of Employee
of Consultant
Consultant
Name
Marion B. Borg
Hourly
Rate
S100.00
Materials Separately Paid For by Applicant
Cost or Rate
ex ) Materials
Reports
Copies
Actual P Jus 10%
( X ) Travel
( X ) Printing
( X ) Postage
(X) Deliver;
( X) Long Distance Telephone Charges
( X) Other Actual Identifiable Direct Costs
Mileage charged at $ 0.49.
Actual
Actual plus 10%
Actual
Actual
Actual
Actual
6. All other terms and conditions of the Original Agreement not specifically modified by this
First Amendment shall remain in full force and effect.
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Signature Page
To the First Amendment to the Three Party Agreement
Between City of Chula Vista,
Marion B. Borg Environmenta! Consulting, Consultant, and
McMilliD Otay Rancb, LLC, Applicant
For Consulting Work to be Rendered
with regard to Applkant's Eastern Urban Center Project
IN WITNESS THEREOF, City, Applicant and Consultant have ex;ecuted this Second .
Amendment to the Agreement thereby indicating that they have read and understood same, and
indicate their full and complete consent to its t~n'.S:
CityofChula Vista
Consultant: Marion B. Borg
Enviromnental C011Sulting
Cheryl Cox;, Mayor
By. ~~
Marion B. Borg, Consulta
By:
Dated:
Dated:
~~1/t;y
Attest:
Donna Norris, Interim City Clerk
Approved as to form:
Applicant:
McMillin Otay Ranch., LLC
a Delaware limited liability company
By: McMillin Companies, LLC,
a Delaware limited liability p y
Its: Manager
D1P
Interim City Attorney
By:
Its:
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),...TTt><C l-tME::NT 1
THE A TT ACHED AGREEMENT RA..S BEEN REVIEVfED
AL'ID APPROVED AS TO FORJ.\1 BY THE CITY
A TTORt'ffiY' S OFFICE At'ill WllL BE
FORJ.vi.ALL Y SIGNED UPON APPROV A..L BY
THE CITY COUNCIL
',~L~~ O~
Ann Moore
City Attorney
Dated: ~ / ~! /') 7
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Three Party Agreement
Between
City ofChula Vista,
Marion B. Borg Environmental Consulting, Consultant, and
I
McMillin Otay Ranch, LLC, Applicant
For Consulting Work to be Rendered
With regard to Applicant's Eastern Urban Center Project
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'Three Party .r;.greement
Between
City of Chula Vista,
Marion B. Borg Environmental Consulting, Consultant, and
McMillin Otay Ranch, LLC, Applicant
For Consulting Work to be Rendered
with regard to Applicant's Eastern Urban Center Project
1. Parties
This Agreement is made as of che reference date set forth in
~xhibit A, for the purposes of reference only, and effective as
of the date last executed by the ~arties hereto, between the City
of Chula Vista ("City") herein, a municipal corporation of the
State of California, the person designated on th~ attached
Ex.'1ibit A as "Consultant" Marion B. Borg Environmental Consulting
whose business form and address is indicated on the attached
Exhibit A, and the person designated on the attached' Exhibit A as
"Applicant" McMillin Otay Rar_ch, LLC whose business fOJ:1!\ and
address is indicated on the attached Exhibit A, and is made with
reference to the following facts:
2. Recitals, Warranties and Representations.
2.1. Warranty of Ownership.
Applicant warrants that Applicant is the owner of land
( "Property") cormnonly known as, or generally located as,
described on Exhibit A, Paragraph 1, or has an option or other
entitlement to develop said Property_
2.2. Ap~licant desi~es co develop the Property with the
Project described on Exhibit A, Paragraph 2, and in that regard,
h=.s made application ("Applicacion") with the City for approval'
of the plan, map, zone, or other permits ("Entitle:nents")
described on E~~ibit A, Paragraph 3. It is also anticipated
Applicant will make application with the City for approval of the
plan, ",ap, zone, or other permits ("~TJ.titlements") described on
E-u~ibit At Paragraph 4.
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2.3.
Applicant,
Exhibit A,
In order for the City to process the Application of
Work of ~he general nature and type desc~ibed in
Paragraph '5, ("Work") '....ill need-to be completed.
2.4.
City does not presently have che
to process the application within
for review by the Applicant.
" in-house II staff
the time frame
or
resources
requested
2.5. This agreement prcposes an arrangement by which
Applicant shall retain, and be liable for the costs of retaining,
Consultant, who shall perform the services required of Consultant
by this Agreement solely to, and under the direction of, the
City.
2.0. Additional facts ~"d circumstances regarding the
background for this agreement are set forth on E~~ibit 3;
3. Agreement.
NOW, TE3REFORS, IT IS MUTUALLY AGP3ED TO ;'-,'ill BET'.fEEN THE
CITY, CONSULTAl~T, AND APPLI~~ AS FOLLOWS,
I
3.1. Employment or Consultant by Applicant.
Consultant is hereby engaged by the Applicant, not the City,
and at Applicant's sole cost and expense, to perform to, and for
the prima~/ benefit of, City, and solely at City's direction, all
of the services described on the attached E~,ibit A, Paragraph 4,
entitled "General Nature of Consulting Se.. 'rices", (" General
Services"), and in the process of performing and delivering said
General Services, Consultant shall also perform to and Ear the
benefic of City all of the services described in Exr4ibit A,
Paragraph 5, entitled "Detailed Scope of Work", ("Detailed
Services"), and all services reasonable necessary to accomplish
said General Services and Detailed Scope or Work, and shall
deliver suc~ documents required ("Deliverablesl'l) herein! all
within the time f=arnes herein set forth! and i~ particular as set
forth in Exh~bit A, Paragra~h 6, and if none a~e set forth,
within a reasonable period of time fo~ the diligenc execution of
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Consultant's duties hereunder. Time is of the essence of this
covenan t .
The Consultant does hereby agree to perform said General and
Detailed Services to and for the primary benefit of the City for
the compensation herein fi.xed to be paid by Applicant. '
In'delivering the General and Detailed Services hereunder,
the Consultant shall do so in a good, professional manner
consistent with that level of care and skill ordinarily exercised
by members of the profession currently practicing under similar
conditions and in similar locations, at its own cost and expense
except for the compensation and/or reimbursement, if any, herein
promised, and shall furnish all of the labor, technical,
administrative, professional and other personnel, all supplies
and materials, machinery, equipment, ,printing, vehicles,
transportation, office space and facilities, calculations, and
all other means whatsoever; except as herein otherwise expressly
specified to be furnished by the City or Applicant, necessary or
proper to perform and complete the work and provide the Services
required of the Consultant.
3.2. Compensation of Consultant.
Applicant shall compensate Consultant for all services
rendered by Consultan~ without regard to the conclusions reached
by the Consultant, and according to the terms and conditions set
forth in R~,ibit C adjacent to the governing compensation
relationship indicated by a "checkmark" next to the appropriate
arrangement, by paying said amount to the City, within 15 days of
Consultant's billing, or in accordance with the security deposit
provisions of paragraph 3.3 and Exhibit C, if checked, and upon
receipt of such payment by the City, City shall promptly, not
later than 15 days, or in accordance with the Bill Processing
procedure in ~~ibit C, if checked, pay said amount to the
Consultant. City is merely acting in the capacity as a conduit
for payment, ~~d shall not be liable for the cOffigensation lli~less
it receives same frem Applicant. Applicant shall not make any
payrrLents ot compensacion 0= otherwise directly co the Consultant.
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3.2.1. Additional Work. If the Applicant, with the
concurrence of C{ty, determines that additional services
("Additional Services") are needed from Consultant of the type
Consultant is qualified to render or reasonably relaced to the
Ser/ices Consultant is otherwise required to provide by this
Agreement, the Consultant agrees to provide such additional
services on a cime and materials basis 9aid for by Ap91icant at
the races set forth in Exhibit C, unless a separate fixed fee is
otherwise agreed u90n in writing for said Additional Work between
the parties.
3.2.1.1. In the event that the City shall
determine that additional work is required to be performed
above and beyond the scope of work herein 9rovided, City
will consult with Applicant regarding the additional work,
and if thereupon the Applicant fails or refuses to arrange
and pay for said Addicional Services, the City may, at its
option, suspend any further processing of Applicant'S
Application until the Applicant shall deposit the City's
estimate of the casts of the additional work which the City
determines is or may be required. Applicant shall pay any
and all additional costs for the additional work.
3.2.2. Reductions in Scope of Work.
City may independently. or upon.request from
Consultant, from time to time reduce the Services to be performed
by the Consuleant lli,der this Agreement. Upon doing so, City and
consultant agree to meet in good faieh and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction. Upon failure to agree, the Fixed
Fee may be unilaterally reduced by the City by the amo~,t or time
and materials budgeted by Consultant for the Ser/ices deleted.
3.3.
Security for PaYment of ComDensation by Aoolic~~t.
3.3.1. Deposit. As security for the paymenc of
Consultant by Applicant, Applicant shall, upon execution or cn~s
Agreement I d~9osit the amount indicaced on EXi~ibit C ~s nDeposit
Amou~t" with the City, as trustee for Consultanc, the conditions
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or such t~ust being as indicated on &xhibit C and as hereinbelow
set forth:
3.3.1.1 Other Terms of Deposit Trust.
3.3.1.1.1. City shall also be entitled to
retain from said Deposit all costs incurred by City for which it
is entitled to compensation by law or under the terms of this
agreement:.
J .3.1.1.2. All interes t earned on the.
Deposit Amount, if any, shall accrue to the benefit of, and be
used for, Trust purposes. City may, in lieu of deposit into a
separate bank account, separately account for said deposit in one
or more of its various bank accounts, and upon doing so, shall
proportionately distribute to the Deposit Trust, the average
interest earned during the period on its general fund.
3.3.1.1.3. Any w,used balance of Deposit
Amount, including any w,used interest earned, shall be returned
to Applicant not later than 30 days after the terroination of this
Agreement and any clai~~ resulting ther~from.
3.3.1.1.4.
within 30 days after of the use
Ncthing herein shall invalidate
herein authorized.
Applicant shall be notified
of the Deposit in any manner.
use of the Deposit in the mariller
3.3.1.1.5. At such time as City shall
reasonably determine that inadeT~ate funds remain on Deposit to
secure 'future compensation likely due CO:;J.sultant or City, City
may make de~,d of Applicant to supplement said Deposit Amo~~t i~
such amo~~t as City shall reasonably specify, and upon doing so,
Applicant sr.all, within 30 days pays said amount (I1Supplemer'.tal
Deposit ll.mount") to City. Said Supplement De;:>osit Amount or
.~,ounts shall be governed by the same terms of truse governing
the original Deposit.
3.3.2. Witr~~olding of Processing.
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In addi~ion to use of the Deposit as security, in order
to secure the duty of A~plicant to pay Consultant for Services
rendered under this agreement, City shall be entitled to witlli~old
processing of Applicant's ~pplication ~pon a breach of
Applicant'S duty to compensate Consultant.
4. Non-Service Related Duties of Consultant~
4.1.
Insurance.
Consultant represents that it and its agents, sta~~ and
subcousultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following
categories, and to the limits specified, policies of which are
issued by Insurance Companies that have a Best's Rating of "A,
Class V" or better, or shall meet with the approval of the City:
4.1.1. Statutorj Worker's Compensation Insurance and
Employer'S Liability Insurance coverage in the amo~,t sat forth
in the attached 8u~ibit A, Paragraph 10.
4.1.2. Commercial General Liability Insurance
including Susiness ~ucornQbile Insurance coverage in the amount
set forth in Exhibit A, Paragra?h 10, combined single limit
a?9lied separately to each project away from premises owned or
rented by Consultant, which names City and Applicant as an
Additional Insured, and which is primarf to any policy which the
City may ocher,.;ise carry (nprimary Cove.rage") ~ and which treats
the employees of the City and Applican~ in the same ma~~er as
me,,".bers of the general public ("Cross-liability Coverage") .
4.1.3. Errors and Omissions insur~~cef in the amo~!t
set forth in Exhibit A, Paragraph 10, unless Errors and Omissions
coverage is included in the General Liability policy.
4: .2.
Proof of Insur~nce Cov~rage.
4.2.1. Certificates of Insurance. Consultazl.t shall
demonstrate proof of coverage herein re~~ired, prior ~o the
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commencement of services required under this Agreement, by
delivery of Certificates of Insurance demonstrating same, and
further indicating that the pclicies may not .be canceled without
at least thirty (30) days written notice to the Additional
Insured.
4.2.2. Policy Endorsements Required. In order to
demonstrate the Additional Insured Coverage, Primary Coverage and
Cross-liability Coverage required under Consultant's Commercial
General Liability Insurance Policy, Consultant shall deliver a
policy endorsement to the City and Applicant demonstrating. same.
4.2.3 Security for Performance - Performance Bond. In
the event that the need for a Consultant to provide a Performance
Bond arises, then Consultant shall provide to the City a
performance bond in the fo~ prescribed by the City and by such
sureties which are authorized to transact such business in the
State of California, listed as approved by the United States
Department of Treasllrf Circular 570,
http://www.fms.ereas.qov/cS70, and whose underwriting limitation
is sufficient to issue bonds in the amount required by the
agreement, and which also satisfy the requirements seated in
Section 995.660 of the Code of Civil Procedure, except as
provided otherdise by laws or regulations. All bonds signed by
an agent must be accompanied by a certified copy of such agent's
.authority to act. Su:::ety companies must_be duly licensed or
authorized in the jurisdiction in which ehe-project is located to
issue bonds for the limits so required. Form must be satisfacto~f
to the Risk Manager or City Attorney which amount shall be
indicated in an attachment as "?erformance Sand" EXhibit.
4 . 3 .
Public Statements.
All public statements and releases to the news media shall
be the responsibility of the City and the Applicant. The
consultant shall no~ publish or release news itemsl articles or
present lectures O~ the project, either during the course of the
study or after its completionr except on w=itten concur=ence of
the City and Applicant.
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4.4. Cammur.ication to Apolicant.
Consultant shall not comm~,icate directly to the Applicant
except in the presence of the City, or by writing cu. exact co~y
of which is simultaneously provided to City, except with the
express consent of City. The Consultant may req~est such
meetings with the Applicanc to ensure the ade~~acy of services
performed by Consult~,t.
5. Non-Comoensation Duties of the Applicant.
5.1. Documents Access.
The Applicant shall provide to the Consultant, through the
City, for the use by the CO~$ultant and City, such documents, or
copies of such documents requested by Consultant, within the
possession of Applicant reasonably useful to the Consultant in
performing the services herein required of Ccnsultanc, including
but not limited to those described in E~~ibit A, ?aragraph 7.
5.2. Prooerty Access.
The Applicant hereby grants permission to the City and
Consultant to eneer and access the Property, to take any borings,
make any tests, conduct any surveys or reconnaissance necessary
to deliver the Ser,ices oE Consultant, subject to the approval of
the Applicant. Consultant shall promptly repair any darrage to
~he subjecc property occasioned by such entry and shall
indemnify) defend, and hold Applic~~t harmless from all loss,
COS~I damage, expenses, claims, and liabilities i~ connection
with or arising from any such entrf and access.
O. Adminiscrative Re~resentatives.
Each party desisnates the individuals (IlAd~inistrators~)
indicated in Ex-hibic AI ?aragraph Sf as said party's concracc
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administrator who is authorized by said party to represent tnem
in the routine administration of this agreement.
7. Conflicts of Interest
7.1.
Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, paragraph 9, as an
"FPPC filer", Consul::ant is deemed to be a "Consultant" fer the
purposes of the Political Rerorm Act conflict of interest and
disclosure provisions, and shall report his economic interests to
the City Clerk on the required Statement or Economic' Interests in
such reporting categories as are specified in Paragraph 9 of
Exhibit A, or if none are specified, then as determined by the
City Attorney.
7.2.
Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
~lOW Consultant has a financial interest other than the
compensation promised by this Agreement.
7.3.
Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an F?PC
Filer, Consultfu"1.t '<'iarrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the r.erm is used in the reg'.llations
promulgated by the Fair Political Practices Co~mission, and has
determined that Consultant does not, to the best of Consultant'S
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
7.4.
?romise Not to Acquire Confliccinq InteresCS.
Regardless of whether Consultant is designated as an F??C
File~r Consultant further warrants and represents that Consulcarrt
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will not acquire, obtain, or assume an economic interest during
the tern of this Agreement which would consticute a conflict of
interest as prohibited by the Fair Political Practices Act.
7.5.
Dutv to Advise of Conflictinq Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the' City Attorney of City if Consultan.t
learns of an economic interest of Consultant's which may result
in a conflict of interest for the pu=pose of the Fair political
Practices Act, and regulations promulgated thereunder.
7.5.
Specific Warranties Against 2conomic Interests.
Consultant warrants and represents that neither Consultant,
nor Consul~ant's immediate family merrbers, nor Consultant's
employee.s or agents ("Consultant 1'-.ssociates ") presently have any
intere.st, directly or indirectly, whatsoever in the property
which is the subject matter of the Project, or in any propercy
within 10 radial miles from the exterior bou.,daries of the
property which is the subject matter of the Project, or
("Prohibited Incerest").
Consul~ant further warrants and r~9resents thac no promise
of future ~mployment, remuneration, consid;ratiouJ gratuity or
other reward or gain has been made to Consultant or Consultant
Associates by Ap~licant or by any other party as a result of
Consultant's performance af this Agreement. Consultant promises
to advise City of any such promise that may be made during the
Term of this Agreement, or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not
aCq".lire any such Prohibited Interes.t 1,.yithin the Term or this
Agreement, or for 12 months after the expiration of this
Agreement.
Consul cant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
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conflict with Consultant's ~esponsibilities under this Agreement.
8. Default of the Consult~nt for Breach.
This agreement may be terminated by the err{ for default if
the Consultant breaches this agreement or if the Consultant
refuses or fails to pursue the work under this agreement or any
phase of the work with such diligence which would assure its
completion within a reasonable period of time. . Termination of
this agreement because of a default of the Consultant shall not
relieve the Consultant from liability of such default.
9. City's RiGht to Terminate Aqreement for Convenience,
Documents.
9.1. Notwithstanding any other section or provision of this
agreement, the CITY shall have the absolute right at any time to
terminate this agreement or any work to be performed pursuant to
this agreement.
9.2. In the event of termination of this agreement by the
CIrf in the absence of default of the Consultant, the City shall
pay the Consultant.for the reasonable value of the services
actually performed by the Consultanc up to the date of such
termina~ion, less the aggregate of all sums previously paid to
the Consultant for services performed after execution of this
agreement and prior to its termination.
9.3. The Consultant hereby expressly waives any and all
claims for damage or compensation arising under this agreement,
except as set forth herein, in the event of such termination.
9.4. In the event of termination of this agreement, and upon
demand of the City, the Consultant shall deliver to the City, all
field notes, surveys, studies, reports, plans, drawings ~~d all
other materials and documents prepared by the Consultant in
performance of this agreement, and all such documents and
materials shall be the proper::.y of the City; provided however,
that the Consultant may retain copies for their own use and the
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CiCy shall provide a copy, at Applicant's cost, of all such
documents to the Applicant.
9.5.
and shall
work.
Applicant shall have no right to terminate Consultant,
not exercise any control or direction over Consultant's
lO. Administrative Claims Requirement and Procedures
No suit shall be brought arising out of this agreement,
against the City, ~~less a claim has first been presented iri
writing and filed with the City of Chula Vista and acted upon by
the City of Chula Vista in accordance with the procedures set
forth in Chapter 1.34 of the Chula Vista Municipal Code, the
provisions of wr~ch are inco~orated by this reference as if set
fully set forth herein.
ll. Hold Harmless and Indemnification
11.1.
I.nju=ies~
consultant to Indemnify City and Aoolicant re
consultant shall defend, inde~"ify, protect and hold
harmless the City, its elected and appointed officers and
employees and Applicant from and against all claims for damages,
liability, cost and expense (including without limitation
attorneys' fees) arising out of the conduct of the Consultant, or
any agent or employees, subcontractors, or others of City or
Applicant in cor~~ection with the execution of the work covered by
this Agreement, except only for those claims arising from the
sole negligence or sole willful misconduct of the City, its
officers, or employees, or Applicant, Consulcant1s
inde~~ification shall include ~,y and all costs, expenses,
aetorneys! fees and liability incurred by ~he City, i~s officers,
agents, or employees or Applican~ in defending against such
claims, wnecher the same pr~ceed to judgment .or not. Further,
Consultant at its own expense shall, upon written re~~esc by the
City O~ Applicanc, cieEend any such suit or action brought agains~
the City, ics officers, agenc8, or employees or Appli=ant.
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Consultants' indemnification of City and Applicant shall not be
li,,~ted by ~~y prior or subse~~ent declaration by the Consultant.
11.2. AoolicfulC to Inde~,ify City re Comoensation of
Consultant.
Applicant agrees to defend, indemnify and hold the City
harmless against and from any and all claims, losses, damages,
expenses or expenditures of City, including its elected
officials, officers, employees, agents, or representatives of the
City ("City Indemnitees"), in any way resulting from or arising
out of the refusal to pay compensation as demanded by Consultant
for the performance of services required by th~s Agreement.
12. Business Licenses
Applicant agrees to obtain a business license from the Ci~y
and to otherwise comply with Chula Vista Municipal Code, Title S.
Applicant further agrees to re~~ire Consultant to obtain such
business license and to comply wich Chula Vista Municipal Code,
Title S.
13. Miscellaneous.
13.1.
Consultant net ~uthorized to ~eo~esent City.
Unless specifically authorized in writing..by City, neither
Consultant nor Applicant shall have authority to ac~ as City's
agent to bind City to any contractual agreements whatsoever.
13.2. Notices.
All notices, demands or requests pro'Tided fer or permitted
to be given pursuar~t to chis Agr~ement must be in writing. All
notices, de~~nds and re~~ests to be sent to any pa=cy shall be
deemed to have been properly given or served if personally served
or deposited i~ the United States mail, addressed to such 9arty,
postage prepaid, registered or certifiedl wich return receipt
requested, at the addresses identified for the parties in 3~~ibit
A.
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13 .3.
Entitlement to Subsequent Notices.
No notice to or demand on the parties for notice of an event
net herein legally required co be given shall in i~self crea~e
the righc in the parties to any other or further notice or demand
in the same, similar or other circumstances.
13.4. Entire Aqreement.
This Agreernent:.} together with any othe::- ~...rritten documen.t..
referred to or contemplated herein, embody the entire Agree~ent
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the 9arty against which
enforcement of such amendment, waiver 0= discharge is sought.
13.5.
Caoacity of Parties.
Each signatory and party hereto hereby warrants and
represents to the ocher party that it has legal authority and
capacity and direction from its principal 'to enter into this.
Agreement; that all resolutions or other actions have been taken
so as to enable it to encer into ~his Agreement.
13 .6.
Governing LaN/Venue.
This Agreement shall be goverr~ed by and construed i~
accordance wi~h the laws or the State of California. ~~,y action
arising under or relacing to this Agreement shall be brought only
in the federal or state courts located in s~~ Diego Councy, State
of California, and if ap91~cable, che City of Chula Visca, or as
close thereto as possible. Venue for this Agreement, ~,d
performance ~sreurLder, shall be cfie City of Chula Vista.
13./.
Modification.
No modification or waiver of any prov~sion of this Agreemenc
shall b~ eff2ctive Q~less the same shall be in writing ~~d signed
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by the parcies hereto, and then shall be valid only in the
specific instance ar.d for the purpose for which given.
13.8. Counterparts.
This Agreement may be executed in more than one counterpart,
each of which shall be deemed to be an original but all of which,
when taken together shall constitute but one instrument.
13.9. Severability.
In the event that any provision of this Agreement shall for
any reason, be determined to be invalid, illegal, or
unenforceable in any respect, the parties hereto shall negotiate
in good Eaith and agree to such amendments, modifications, or
supplements to this Agreement or such other appropriate action as
shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the
parties as reflected herein.
13.10. Readinqs.
The cape ions and headings in this Agreement are for
convenience only and shall not define or limit the provisions
hereof.
13.11. Waiver.
No course of dealing or failure or delay, nor the single
failure or delay, or the partial exercise of any right, power or
privilege, on the part of the parties shall ogerate as a waiver
of any rights he=ein contained. The making or the acceptance of
a payment by either parcy with ~,owledge of the existence of a
breach shall not operace or be construed co operate as a waiver
of any such breach.
13.12. Remedies.
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The rights of the parties w"der this Agreement are
cumulacive and not exclusive of ~"Y rights or remedies which the
parties might otherwise have unl~ss this Agreement provides to
the contrary.
13.13. No Additional Beneficiaries.
Despite the fact that the re~~ired performance under this
agreement may have an affect upon persons not parties hereto, the
parties s~ecifically intend no benefit therefrom, and agree that
no performance hereunder may be enforced by any person noe a
party to this agree.ment. Notwi t.hstanding the foregoing, this is
a three parcy agreement and the City is an express t~ird party
beneficiary of t.he promises of Consult~"t to provide se~fices
paid for by Applicant.
14. Ownership, publication, Reproduction and Use of Material
A~l reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
subject. t.o private use, copyrights or patent rights by Consultant
in the United States or in any other country without the ~ress
wri~ten cons~nt of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act) t distribu~et and otherwise usej
copyright or patent, in w~ole or in par~, any such reports,
studies, data, statistics, forms or other materials or properties
produced l~~der this Ag=eemenC.
(Snd of Page.
Next Page is Signature Page.)
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Signature Page
Now therefore, the parties hereto, having read and
understood the terms and conditions of this agreement, do hereby
express their consent to the terms hereof by setting their h~,d
hereto on the date set forth adjacent thereto.
Dated":
City of Chula Vista
by:
Cheryl Cox, Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to Porm:
.l\n..'1 Hoare
City Attorney
Dated:
Consultant:
Marion B. Borg Environmental
Consulting
by:
Dated;
Applicant:
McMillin Otay Ranch, LLC
A Delaware limited liability comp~,y
By: McMillin Companies, LLC,
A Delaware li~ited liability company
Its: Manager
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Its:
8y:
Its:
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Exhibit A
Reference Date of Agreement: March 13, 2007
Effective Date of Agreement: January 1, 2007
City of Chula Vista, 276 Fourth Avenue, Chula Vista, ~~ 91910
Consultant: Marion 3. BorG Environmental Consultino,
8usiness Form of Cort.sul ta:1.t:
X) Sole Proprietorship
) partnership
) Corporation
Address: 13904 San Sebastian Way, powav ~~ 92064
Applicant: McMillin Otay Ranch, LLC,
Business Form of Applicant:
( ) Sole Proprietorship
( ) Partnership
( X) Corporation
Address:
2750 Womble Road
San Diego, C~ 92106
I Property (Comwo~ly k~Cwn acaress or General Description)
The application covers that prcperty generally known as
Eastern Urban Cen~er( which is locatec in the cencral
portion of che Otay Valley ?arcel of the Otay R~~ch General
Developmen~ pl~~ area. The proposed Eastern Urban Center ~s
approximately 230 acres and is bOl~~ded by the pro9osed
alignmen~s of Birch Road on ~he north, Hunte Pa=kway on the
south,. Eastlake Parkway on the east, and SR-125 on the west.
Applica~t is only a9plying fc~ entitle~encs of their portion
of the ownership of subject property.
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2. Project Description ("Project"):
The project consists of a Second Tier Environme~tal Impact
Repor~ (EIR) for the sue SPA Pl~~. The EVe SPA Plan would
refine the plans, goals, objectives, and policies of the
Otay Ranch GDP ~~d the City of Chula Vista General Plan.
The SPA Plan would be consistent with the GOP a~d General
plan with a maximum development potential of 2,983
residential units and 3,497,000 s~~are feet of non-
residential development, including office, commercial and
civic uses.
3. Entitlements applied for:
General plan k~endrnentr General Dev~lopment Plant Sectional
i?la..m"1ing ."'.rea (Si?A) Plan, and i?la..n.ned Comrnunity District
Zoning Regulations), Preliminary Grading Plan, Tentative
Subdivision Map, and Design Review.
4. General Nature of Consulting Services (11 Services - -General") :
Consultant shall manage the preparation and processing of the
Environmental Impact Report (EIR) for the EUC project being
prepared by others in accordance wit~ the City of Chula Vista
Enviro~uental Review Procedures; with the criteriar standards
and. procedures of the California Environmental Quality Act
(CEQA) of 1970, as amended, (Public Resources Code Sections
21000 et seq.) and the CEQA Guidelines (Public Resources Cod.e
Section 15000 et seq.); and with other applicable regulations,
requira~ents and procedures of any other responsible public
agency or any agency ',oil th jurisdiction by law. All '..rork
performed by Consultant shall be to the satisfaction of City's
i?lanning & Building Director.
5. Decailed scope of Work ("Decailed Services"):
Consultant shall manage all phases of preparation and processing of
the EIR for the SOC project through the City. The primary
responsibility of Consultant is to manage the EIR consultant that
will prepare the EIR. The detailed services to be provided are
described below:
A~ EIR Consultant Management
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1.
Coordinate with SIR consul~ant regularly regarding
EIR scope, preparation and progress;
Mor.if.or SIR consulcant contracc performance,
including deliverables, costs and schedule;
Review and edit all notices;
Review and edit all technical studies prepared by
SIR consultant;
Attend site visits. '..,ith ::I:::\ consultant as
necessary; and
Review and edit all screencheck draft EIRs, draft
res90nses to comments, draft :indings and Stat~~ent
of Overriding Considerations (if required), and
draft ?inal ErR~
2.
3.
A
~.
~
o.
B. Other Project Processing Services
6. Schec.ul::,
Services.
1.
2.
Coordinate with City staff assigned to the project;
Review and comment on the SUC S?A as i~ relates to
the EIR;
Distribute all public notices;
Review all technical studies prepared by applicant;
Compile staff comments on screencheck Draft EIRs
and technical studies;
Distribute Draft EIR for public revi.ew, including
public distribution, RCC and, Planning Commission;
Distribute 2inal EIR, ir~cluding public agencies
that commented cn the EIR, Planning Commission and
City Council;
Schedule staff meetings to discuss EIR issues;
~.ttend and pre9are for ~eam mee t.ing sand foc'..ls
group meetings:
Attend and prepare for the RCC meeting;
.n..ttend and prepare for public hearings
. Planning Com..'llission to close public
Planning Commission on the draft EIR
Council on the Final ~IR; and.
!-!aintain peoject file for the duration of the
proj~ctJ' and close 9roject file after 'the 30-day
Notice of Oeterminacion sta~ute of limitations
peeiod has ended.
3.
4.
5.
6.
7.
8.
9.
10.
11.
including
reviewr
and City
12.
Hilestoner Time-Limi:::a;:ions wil:hin '"1'frhich to Perform
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Date for Commencement or Consultant Services:
(Xl Same as Efrective Date or Agreement
Dates or Time Limits for Delive=y or Deliverables:
Under direction of the Principal Plar~er, and will
funccion as an extension of City stafr.
Dates for completion of all Consultant services:
June 30, 2008, or adootion or tne EUC SPA plan by City
Council.
7. Documents to be provided by Applicant to Consultant:
SPA Plan, tentative map, tecb~ical studies submitted to City-
related to project.
6. Contract Administrators.
city: Richard M. Rosaler, AICP, Principal Planner, City of
Chula Vista Pla~~ing and Building Department, 276 Fou=th Av,
Chula Vista, e1l.. 91910, ph: (619)475-5394, FA.'(: (619)409-5859,
email: rrosaler@ci.chula-vista.ca.us.
Aoolicant: Todd Galarneau, Vice-President, McMillin Ocay
Ranch, LLC, PO Box 85104, Sfuc Diego, c.~ 92166-5104, ph: (519)794-
1303, FAX: (619)336-3057 email: tgalarneau@mcmillin.com
Consultant: Marion B. Borg, Consultant, Marion B. Borg
2nvironmeneal Consulting, 13904 s~~ Sebastian Way, powaYr C;
92064, ph: (858)679-8545, FAX (858)579-8518, email:
rrJ:: ben-:.r@cox. ne t .
9. Statement of Economic Interests( Ccnsulcant Reporting
Categories, per Conflict of Interest Code:
(X ) Not Applicable.
Not an F~?C Filer.
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Category No. lo
) Category No. 2.
Category No. 3.
Category No. ".
Catego!:"'.! No. ~.
Cates-ory No.5.
Categori No.7.
10. Insu=a~se Requirements:'
Inv~stmencs and sou=ces of income.
Interests in real property.
Investments, interest in real
property ~,d sources of income
subject to the regulatory, pe=rnic
or licensing authority of the
department.
Investments in business entities
and sources of income which engage
in la...r"J.d development, ,const.ruction
or ~he acquisician or sale oE real
progerty.
Investments in business entities
and sources of income of the tj?e
which, within the past two years,
have contracted with the City of
Chula Vista (Redevelopment Agency)
to provide se~ficesl supplies,
macerials, machinery or equipment.
Investments .in busine.ss ep.tities
and sources of income of the type
whicht within the ~ast two years,
have contracted with the desi~_aced
employee's department to provide
servicesr supplies, ~4terialsr
~~chin;ry 0= eT~i9ment~
3usiness positions.
(X ) Co~~ercial General Liability: $1,000,000.
(X ) Aucomobile Liability; Sl/000,OOC.
) Worker I s Compensacion.: St:atuto::-f'
Jpty3crg-~0C 03-06-07.doc
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) Erllployer I s Liability: $1,000,000.
) 2rrors and Omissions Liability: ~2,OOO,OOO.
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E~,ibit B
Additional Recitals
~~REAS, the Applicant has deposited an initial s~m for the
prccessins of cevelopment applications, such as rezone,
environmental studies and precise plans, and
wnERZAS, Consultant warrants time on this project will be
billed at no more than the hourly rate the City bills for an
e~~ivalent City Staff, and
~SEREAS, both City and Applicant agiee to waive the formal
consultant selection proc=ss due to prior work on the same
project perfc~ed by consultant while under a 2-party contract
with the City, thereby making it impractical to solicit formal
bids, ar.d
~dEREAS, the Pla~,ing and Building Direc~or has negotiated the
details of this agreement in accordance with procedures set forth
in the Chula Vista Municipal Code.
3ptySorg-EUC OJ-06-07.doc
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Exhibit c
Compensation Schedule and Deposit: TerwE and Conditions.
Single Fixed Fee Az~angement.
for pe"rformance of all of the General and Detailed Services
C~ Con3ult~~t as herein required, Applicant shall pay a single
fixed fee in the amounts and at the times or milestones set forth
below:
Single Fixed Fee ~~ow,t: S
Milestone or Event Amo~~c or Pe=cenc
of Fixed Fee
Phased fixed Fee Arrangement.
=0= the performance of each phase or portion of the General
and Detailed Services of Consultant as are separately identified
in Ex.'l.ibit C, under the category labeled "Phased Fixed Fee
.1\.rrangernent", Applicant shall pay the fixed fee associated with
each phase of Services, in the amounts and at the times or
milestones set forth hereil"..below ("Phase Fixed Fee l'o.rrangement"l
Consultant shall not commence SerJices under any ?hase, and
shall not be entitled to the compensation for a Phase, unless
Applic~,t shall have issued a notice to proceed to Consultant as
co said Phase.
~nase
Fee for
Said Phase
(X ) Time and Materials
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?or performance of the Ge~eral and Detailed Se~,ices of
Consultant as herein required, Applicant shall pay Consultant for
the productive hcurs of time and material spent by Consultant in
the performance of said Services, at tne rates or a~Dunts set
forth herei~~elow according to the following terms and
conditions:
(X ) Not-to-Exceed Limitation on Time and Materials
Arrangement
Notwithstanding the expenditure by Consultant of time and
materials in excess of said Maximum Compensation amou-~t,
Consultant agrees that Consultant will perform all of the
General and Detailed Services he=ein requi~ed of Consultant
for $76,000 including all Materials, and other
n reirr.ourseal:les It (If MaximUi1t Compensation If.) .
) Limit~tion without Further Authorization on Time and
Materials Arr~~gement
At such time as Consult~~t shall have incurred time and
materials equal to ("Authorization
Limit"), Consultant shall not be entitled to any additional
compensacion without furth~r authorization issued in w~iting
and approved by the City COlli"cil. Nothing herein shall
preclude Consultant from providing additional Ser.ices at
Consultant's OWTI cost and expense.
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Rat" Schedule
Category or Employee
of COI".sulcane
Name
Hourly
Rat.e
Consultant
Marion 3. Borq
$95.00
Materials Separately Paid For by Applicant.
Cost or Rate
x
X
X
X
X
X
M3.terials
Reports
Copies
Travel
Print.ing
Postage
Delivery
Leng Distance Telephone Charges
Other Actual Identifiable Direct Costs
Mi~eage cha=ged at SO~4a per mil~
.'\ctual
-,
....
Actual
p..ct.ual
Ac;:ual
;'o.ctual
Actual
.'\ctual
Deposit
D"posit p._~ount: $
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Use of Deposit to Pay Consultant.
Notwithstanding the sole duty and liability of Applicant to
pay Consultant, if this paragraph is "checked", upon City's
receipt of billing by Consultant, and determination by City in
good faith that Consultant's billing is proper, a judgment for
which Applicant agrees to hold City harmless and waive any claim
against City, City shall pay Consultant's billing from the amount
of the Deposit. If Applicant shall protest the propriety of a
billing to City in advance of payment, City shall consider
Applicant's protest and any evidence submitted prior to the due
date for the payment of said bill by Applicant in making its good
faith determination of propriety.
Use of Deposit as Security Only; Applicant to Make Billing
Payments.
Upon determination by City made in good faith that
Consult~,t is entitled to compensation which shall remain unpaid
by Applicant 30 days after billing, City may, at its option, use
the Deposit to pay said billing.
X Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
X Monthly
Quarterly
Other:
B. Day of the Period for submission of Consultant's
Billing:
X ~irst of the Month
15th Day of each MOuth
End of the Month
Other:
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C. City's Account Number: MCMI~-
H,\?lar-ui~g\BobMc\3pCYBorg-gUC 03-06-C7.doc
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