HomeMy WebLinkAbout2009/06/09 Item 6
CITY COUNCIL
AGENDA STATEMENT
~ CITY OF
-='" (HUlA VISTA
JUNE 9, 2009, Item~
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A FIRST AMENDMENT TO A
FOUR PARTY AGREEMENT BETWEEN THE CITY OF
CHULA VISTA; HELIX ENVIRON 'MENTAL PLANNING,
INC., CONSULTANT; AND MCMILLIN OTAY RANCH,
LLC AND OTAY PROJECT, LP, APPLICANTS, FOR
CONSULTING SERVICES RELATED TO CONDUCTING
ADDITIONAL MITIGATION MONITORING SERVICES
FOR OLYMPIC PARKWAY BETWEEN BRANDYWINE
AVENUE AND SR-l25.
SUBMITTED BY: DEPUTY CITY / DIRECTOR OF
DEVELOPMENT SE
REVIEWED BY: CITY MANAGE
4/5THS VOTE: YES D NO ~
SUMMARY
The item before the City Council is a request to approve a first amendment to the four party
agreement with Helix Environmental Planning, Inc., for consulting services related to
conducting additional mitigation monitoring services for Olympic Parkway between
Brandywine Avenue and SR-l25 (hereinafter referred to as the Project) for an amount not to
exceed $27,345.
ENVIRONMENTAL REVIEW
Not Applicable
RECOMMENDATION
That the City Council adopt the resolution.
BOARDS/COl\'IMISSION RECOMMENDATION
Not Applicable
6-1
JUNE 9, 2009, Item~
Page 2 of 3
DISCUSSION
Background
On April 13, 1999, the City Council certified Mitigated Negative Declaration (MND) No.
IS-99-20 for the Olympic Parkway Extension. In accordance with CEQA, MND No. IS-
99-20 includes a Mitigation Monitoring and Reporting Program (MMRP). Because City
staff did not possess technical expertise to perform all monitoring tasks, staff
recommended that a consultant be retained to assist in the final implementation of the
MMRP. The consultant would function as the Environmental Monitor Specialist
(Biologist) for the City, and would conduct mitigation monitoring and reporting activities
associated with created native wetland and upland habitat, with the primary tasks
consisting of post-construction monitoring and reporting activities. City staff in the
Environmental Planning Section would supervise the mitigation monitoring tasks in the
adopted MMRP for Olympic Parkway between Brandywine Avenue and SR-125.
On August 13, 2002, the City Council, upon staffs recommendation, waived the City's
formal bidding process and approved a four party agreement between the City of Chu1a
Vista; Helix Environmental Planning, Inc., Consultant; and McMillin Otay Ranch, LLC
and Otay Project, LP, Applicants, to conduct mitigation monitoring services for Olympic
Parkway between Brandywine Avenue and SR-125. In accordance with procedures set
forth in the City's Environmental Review Procedures, the City's Environmental Review
Coordinator negotiated the details of the four party agreement, with Helix Environmental
Planning, Inc. to provide mitigation monitoring services in an amount not to exceed
$97,400.
Scope of Work
During the mitigation monitoring process, it became necessary for Helix to perform out
of scope work items in regards to: 1) maintenance and annual technical monitoring; 2)
aquatic habitat success monitoring; and 3) project management and coordination for
project sign-off. These tasks are described below.
Maintenance and Annual Technical Monitoring - At the City's request, and with the
concurrence of McMillin Otay Ranch, LLC and Otay Project, LP, Helix conducted out of
scope work, including additional maintenance monitoring, attendance of additional field
and office meetings, and preparation of additional memos and other correspondence
related to the execution of the mitigation effort.
Aquatic Habitat Success Monitoring - To prepare the aquatic sampling protocol, Helix
conducted extensive coordination with the Regional Water Quality Control Board
(Regional Board), including out-of-scope field meetings and correspondence involving
several revisions to the protocol. In the final approved protocol, the Regional Board
required more sample locations than had been proposed in the original scope of work. In
addition, as a result of the analyses required by the Regional Board, the cost of analyzing
each aquatic sample was higher than had originally been estimated.
6-2
JUNE 9, 2009, Item fa
Page 3 of3
Project Management and Coordination for Project Sign-off - At the direction of City
staff, Helix spent additional biologist time for management and meetings to assist with
project sign-off.
With prior authorization by City, Helix may perform additional duties, including but not
limited to, attending meetings and preparing correspondence, to assist with project sign-
off. The cost of such duties shall not exceed $5,000.
To compensate for completed and future out-of-scope tasks, the First Amendment adds
$27,345 to the amount of the four party agreement ($97,400), bringing the total to
$124,745.
DECISION MAKER CONFLICT
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 tot his action.
CURRENT YEAR FISCAL IMP ACT
There would be no impact to the General Fund. The project applicants, McMillin Otay
Ranch, LLC and Otay Project, LP, through a deposit account, will pay Helix's consulting
fees. The contract amount for consulting services is $27,345. Twenty-five percent is the
responsibility of McMillin Otay Ranch, LLC and seventy-five percent is the
responsibility of Otay Project, LP.
ONGOING FISCAL IMPACT
The ongoing fiscal impact would be the same as the current year fiscal impact, noted
above.
ATTACHMENTS
1. First Amendment
2. Original Four Party Agreement
Prepared by: Kimberly Vunder Bie, Associate Planner, Development Services
J'IPlanninglKlMl0lympic Parkway ChannellCantract AugmentlAgenda StatementI6.9. 09 Agenda
Statement. 6. doc
6-3
FlRST AL"IENDMENT
To the Four Party Agreement
Between the City of Chula Vista;
HELIX Environmental Planning, Inc., Consultant; and
McMillin Otay Ranch, LLC and Otay Project, LP, Applicants,
To Provide Additional Biological Consulting Services
For the Olympic Parkway (Poggi Canyon) Channel Restoration Project
Recitals
This First Amendment is effective as of June 9, 2009 by and between the City of Chula Vista ("City");
HELIX Environmental Planning, Inc., ("Consultant"); and McMillin Otay Ranch, LLC and Otay Project,
LP ("Applicants'), with reference to the following facts:
WHEREAS, City, Consultant and Applicants previously entered into an agreement on August 13,
2002, whereby Consultant was to provide biological consulting services for the Olympic Parkway (Poggi
Canyon) Channel Restoration Project ("Project"); and
WHEREAS, at City's request, Consultant performed additional work necessitated by the
complexity of the Project (including continued issues with erosion control, new non-project related
impacts to the project area, and agency requirements for Project sign off), resulting in Consultant
exceeding the amount of the original contract; and
WHEREAS, City assumes potential additional biologist time to assist with Project sign-off, as
detailed in this First Amendment; and
WHEREAS, additional mitigation monitoring services shall not exceed $27,345.
NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the parties set
forth herein, City, Consultant and Applicants agree as follows:
1. Exhibit A, Section 5, entitled Detailed Scope of Work ("Detailed Services"), is hereby
amended to add the following provisions:
k. At the direction of City staff, HELIX provided additional maintenance monitoring,
attended additional field and office meetings, and prepared additional memos and
other correspondence related to the execution of the mitigation effort.
1. To prepare the aquatic sampling protocol, (see "i" in the Four Party Agreement)
HELIX conducted extensive coordination with the Regional Water Quality Control
Board (Regional Board), including out-of-scope field meetings and correspondence
involving several revisions to the protocol. In the final approved protocol, the
Regional Board required more sample locations than had been proposed in the
original scope of work. In addition, as a result of the analyses required by the
Regional Board, the cost of analyzing each aquatic sample was higher than had
originally been estimated.
m. At the direction of City staff, HELIX spent additional biologist time for
management and meetings to assist with project sign-off.
6-4
ll. With prior authorization by City, HELIX may perform additional duties, including
but not limited to, attending meetings and preparing correspondence, to assist with
Project sign-off. The cost of such duties shall not exceed 55,000.
2. Exhibit C, Section entitled, "Time and Materials," is amended as follows:
In the second paragraph, the amount of "$97,400" is replaced with "$124,745."
3. Except as herein provided, all other provisions of the original Agreement shall remain in
full force and effect.
6-5
SIGNATURE PAGE
To the Four Party Agreement
Between the City of Chula Vista;
HELIX Environmental Planning, Inc., Consultant; and
McMillin Otay Ranch, LLC and Otay Project, LP, Applicants,
To Provide Additional Biological Consulting Services
For the Olympic Parkway (Poggi Canyon) Channel Restoration Project
IN WITNESS WHEREOF, City, Consultant and Applicants have executed this First 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: HELIX Environmental Planning, Inc.
Cheryl Cox, Mayor
By:
By:
Dated:
Attes t:
By:
Donna Norris, City Clerk
Approved as to form:
By:
Bart Miesfield, City Attorney
Dated:
6-6
Applicants:
McMillin Otay Ranch, LLC, a Delaware limited
liability company
By:
Delaware limited
liP
By:
... u/ /(/7
.
~,
Denny Cuccarese, Vice President
Dated:
&(~/o9
6-7
OTA Y PROJECT, LP, a California limited partnership
BY:
ORIOLE MANAGEMENT, LLC, a California
limited liability company, its General Partner
~6-
Bnan Canaris, Secretary
Dated: ~ 12-1 oC)
By:
6-8
Four Party Agreement
Between
City of Chula Vista,
Helix Environmental Planning, Inc., Consultant" and
McMillin Otay Ranch, LLC and Otay Project, LP, Applicants,
For Consulting Work to be Rendered
with regard to Applicant's Project
1. Parties.
This Agreement is made as of the reference date set forth in
Exhibit A, for the purposes of reference only', and effective as
of the date last executed by the parties hereto, between the City
of Chula Vista ("City") herein, a municipal corporation of the
State of California, the person designated on the attached
Exhibit A as "Consultant", Helix Environmental Planning, Inc.,
whose business form and address is indicated on the attached
Exhibit A, and the persons designated on the attached Exhibit A
to be collectively referred to herein as "Applicant", McMillin
Otay Ranch, LLC, a Delaware limited liability company, and Otay
Project, LP, a California limited partnership, whose business
form 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 lS the owner of land
("Property") commonly 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. Applicant desires to develop the Property with the
Project described on Exhibit A, Paragraph 2, and in that regard,
has made application ("Application") with the City for approval
of the plan, map, zone, or other permits ("Entitlements")
described on Exhibit A, Paragraph 3.
2.3.
Applicant,
Exhibit A,
In order for the City to process the Application of
Work of the general nature and type described in
Paragraph 4, ("Work") will need to be completed.
2.4.
City does not presently have the
to process the application within
for review by the Applicant.
1Tinhousel! staff or
the time frame
resources
requested
Four Party Agreement
08/06/2002 Page 1
6-9
2C02 -215
2.5. This agreement proposes 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.
2.6. Additional facts and circumstances regarding the
background for this agreement are set forth on Exhibit B;
3. Aqreement.
NOW, THEREFORE, IT IS MUTUALLY AGREED TO AND BETWEEN THE
CITY, CONSULTANT, AND APPLICANT AS FOLLOWS:
3.1. Employment of Consultant by ApDlicant.
Consultant is hereby engaged by the Applicant, not the City,
and at Applicant's sole cost and expense, to perform to, and for
the primary benefit of, City, and solely at City's direction, all
of the services described on the attached Exhibit A, Paragraph 4,
entitled "General Nature of Consulting Services", ("General
Services"), and in the process of performing and delivering said
General Services, Consultant shall also perform to and for the
benefit of City all of the services described in Exhibit A,
Paragraph 5, entitled "Detailed Scope of Work", ("Detailed
Services"), and all services reasonable necessary to accomplish
said General Services and Detailed Scope of Work, and shall
deliver such documents required ("Deliverables") herein, all
within the time frames herein set forth, and in particular as set
forth in Exhibit A, Paragraph 6, and if none are set forth,
within a reasonable period of time for the diligent execution of
Consultant's duties hereunder. Time is of the essence of this
covenant.
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 fixed 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 Cicy or Applicant, necessary or
08/06/2002
?our Party Agreement
Page 2
6-10
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 Consultant without regard to the conclusions reached
by the Consultant, and according to the terms and conditions set
forth in Exhibit 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
Applicant'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 Exhibit C, if checked, pay said amount to the
Consultant. City is merely acting in the capacity as a conduit
for payment, and shall not be liable for the compensation unless
it receives same from Applicant. Applicant shall not make any
payments of compensation or otherwise directly to the Consultant.
3.2.1. Additional Work. If the Applicant, with the
concurrence of City, determines that additional services
("Additional Services") are needed from Consultant of the type
Consultant is qualified to render or reasonably related to the
Services Consultant is otherwise required to provide by this
Agreement, the Consultant agrees to provide such additional
services on a time and materials basis paid for by Applicant at
the rates set forth in Exhibit C, unless a separate fixed fee is
otherwise agreed upon in writing for said Additional Work between
the parties.
3.2.1.1. In the even~ that the City shall
determine that additional work is required to be performed
above and beyond the scope of work herein provided, City
will consult with Applicant regarding the additional work,
and if thereupon the Applicant fails or refuses to arrange
and pay for said Additional 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 costs 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 Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
08/06/2002
Four Party Agreement
Page 3
6-11
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 amount of time
and materials budgeted by Consultant for the Services deleted.
3.3.
Security for Payment of Compensation by Applicant.
3.3.1. Deposit. As security for the payment of
Consultant by Applicant, Applicant shall, upon execution of this
Agreement, deposit the amount indicated on Exhibit C as "Deposit
Amount" with the City, as trustee for Consultant, the conditions
of such trust being as indicated on Exhibit 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.
3.3.1.1.2. All interest 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 unused balance of Deposit
Amount, including any unused interest earned, shall be returned
to Applicant not later than 30 days after the termination of this
Agreement and any claims resulting therefrom.
3.3.1.1.4.
within 30 days after of the use
Nothing herein shall invalidate
herein authorized.
Applicant shall be notified
of the Deposit in any manner.
use of the Deposit in the manner
3.3.1.1.5. At such time as City shall
reasonably determine that inadequate funds remain on Deposit to
secure future compensation likely due Consultant or City, City
may make demand of Applicant to supplement said Deposit Amount i~
such amount as City shall reasonably specify, and upon doing so,
Applicant shall, within 30 days pays said amount ("Supplemental
Deposit Amount") to City. Said Supplement Deposit Amount or
Amounts shall be governed by the same terms of trust governing
the original Deposit.
08/06/2002
Four Party Agreement
Page 4
6-12
3.3.2.
Withholding of Processing.
In addition to use of the Deposit as security, in order
to secure the duty of Applicant to pay Consultant for Services
rendered under this agreement, City shall be entitled to withhold
processing of Applicant's Application upon a breach of
Applicant's duty to compensate Consultant.
4. Non-Se~rice Related Duties of Consultant.
4.1.
Insurance.
Consultant represents that it and its agents, staff and
subconsultants 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 categor-
ies, 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. Statutory Worker's Compensation Insurance and
Employer's Liability Insurance coverage in the amount set forth
in the attached Exhibit A, Paragraph 10.
4.1.2. Commercial General Liability Insurance
including Business Automobile Insurance coverage in the amount
set forth in Exhibit A, Paragraph 10, cowbined single limit
applied separately to each project away from premises owned or
rented by Consultant, which names City and Applicant as an
Additional Insured, and which is primary to any policy which the
City may otherwise carry ("Primary Coverage"), and which treats
the employees of the City and Applicant in the same manner as
members of the general public ("Cross-liability Coverage").
4.1.3. Errors and Omissions insurance, in the amount
set forth in Exhibit A, Paragraph 10, unless Errors and Omissions
coverage is included in the General Liability policy.
4.2.
Proof of Insurance Coverage.
4.2.1. Certificates of Insurance. Consultant shall
demonstrate proof of coverage herein required, prior to the
commencement of services required under this Agreement, by
delivery of Certificates of Insurance demonstrating same, and
further indicating that the policies 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
08/06/2002
Four Party Agreement
Page 5
6-13
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.
4,3,
Public Statements.
All public statements and releases to the news media shall
be the responsibility of the City and the Applicant. The
Consultant shall not publish or release news items, articles or
present lectures on the Project, either during the course of the
study or after its completion, except on written concurrence of
the City and Applicant.
4.4.
communication to Applicant.
Consultant shall not communicate directly to the Applicant
except in the presence of the City, or by writing an exact copy
of which is simultaneously provided to City, except with the
express consent of City. The -Consultant may request such
meetings with the Applicant to ensure the adequacy of services
performed by Consultant.
5. Non-Compensation Duties of the Applicant.
5.1.
Documents Access.
The Applicant shall provide to the Consultant, through the
City, for the use by the Consultant and City, such documents, or
copies of such documents requested by Applicant, within the
possession of Applicant reasonably useful to the Consultant in
performing the services herein required of Consultant, including
but not limited to those described in Exhibit A, Paragraph 7.
5.2.
Property Access.
The Applicant hereby grants permission to the City and
Consultant to enter and access the Property, to take any borings,
make any tests, conduct any surveys or reconnaissance necessary
to deliver the Services of Consultant, subject to the approval of
the Applicant. Consultant shall promptly repair any damage to
the subject property occasioned by such entry and shall
indemnify, defend, and hold Applicant harmless from all loss,
cost, damage, expenses, claims, and liabilities in connection
with or arising from any such entry and access.
5.3.
Communication to Consultant.
Applicant shall not communicate directly to the Consultant
except in the presence of the City, or by writing an exact copy
of which is simultaneously provided to City, except with the
08/05/2002
Four Party Agreement
Page 6
6-14
express consent of City. The Applicant may request such meetings
as they desire with the Consultant to ensure the adequacy of
services performed by Consultant.
6. Administrative Representatives.
Each party designates the individuals ("Administrators")
indicated in Exhibit A, Paragraph 8, as said party's contract
administrator who is authorized by said party to represent them
in the routine administration of this agreement.
7. Conflicts of Interest.
7.1.
Consultant is Desiqnated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 9, as an
"FPPC filer", Consultant is deemed to be a "Consultant".for the
purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report his economic interests to
the City Clerk on the required Statement of 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
know 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 FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economlc interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, 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.
Promise Not to Acquire Conflictinq Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtaint or assume an economic interest during
the term of this Agreement which would constitute a conflict of
08(06(2002
Four Party Agreement
Page 7
6-15
interest as prohibited by the Fair Political Practices Act.
7.5.
Duty 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 Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
7.6.
5Decific Warranties Aqainst Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in the property
which is the subject matter of the Project, or in any property
within 10 radial miles from the exterior boundaries of the
property which is the subject matter of the Project, or
("Prohibited Interest").
Consultant further warrants and represents that no promise
of future employment, remuneration! consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates by Applicant or by any other party as a result of
Consultant's performance of 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
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement.
8. Default of the Consultant for Breach.
This agreement may be terminated by the CITY 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.
08/06/2002
Four Party Agreement
Page 8
6-16
9. City's Riqht to Terminate Payment 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
CITY 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 Consultant up to the date of such
termination, 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.]. 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 and all
other materials and documents prepared by the Consultant in
performance of this agreement, and all such documents and
materials shall be the property of the City; provided however,
that the Consultant may retain copies for their own use and the
City 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
10. Administrative Claims Requirement and Procedures.
No suit shall be brought arising out of this agreement,
against the City, unless a claim has first been presented in
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.]4 of the Chula Vista Municipal Code, the
provisions of which are incorporated by this reference as if set
fully set forth herein.
08/06/2002
Four Party Agreement
Page 9
6-17
11. Hold Harmless and Indemnification.
11.1.
Inluries.
Consultant to Indemnify City and Applicant re
Consultant shall defend, indemnify, 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 connection 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, Consultant's
inde~nification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees or Applicant in defending against such
claims, whether the same proceed to judgment or not. Further,
Consultant at its own expense shall, upon written request by the
City or Applicant, defend any such suit or action brought against
the City, its officers, agents, or employees or Applicant.
Consultants' indemnification of City and Applicant shall not be
limited by any prior or subsequent declaration by the Consultant.
11.2. Applicant to Indemnify City re Compensation of
Consultant.
Applicant agrees to defend, inde~~ify 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 this Agreement.
12. Business Licenses.
Applicant agrees to obtain a business license from the City
and to otherwise comply with Chula Vista Municipal Code, Title 5.
Applicant further agrees to require Consultant to obtain such
business license and to comply with Chula Vista Municipal Code,
Title 5.
13. Miscellaneous.
13.1.
Consultant not authorized to Represent City.
Unless specifically authorized in writing by City, neither
Consultant nor Applicant shall have authority to act as City'S
08/06/2002
Four Party Agreement
Page 10
6-18
agent to bind City to any contractual agreements whatsoever.
13.2.
Notices.
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified for the parties in Exhibit
A.
13.3.
Entitlement to Subsequent Notices.
No notice to or demand on the parties for notice of an event
not herein legally required to be given shall in itself create
the right in the parties to any other or further notice or demand
in the same, similar or other circumstances.
13.4.
Entire Aqreement.
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
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 party against which
enforcement of such amendment, waiver or discharge is sought.
13.5.
CaDacity of Parties.
Each signatory and party hereto hereby warrants and
represents to the other 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 enter into this Agreement.
13.6.
Governinq Law/Venue.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
08/06/2002
Four Party Agreement
Page 11
6-19
13.7.
Modification.
No modification or waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and signed
by the parties hereto, and then shall be valid only in the
specific instance and 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.
i3 .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 faith 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.
Headinqs.
13 .10.
The captions 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 operate as a waiver
of any rights herein contained. The making or the acceptance of
a payment by either party with knowledge of the existence of a
breach shall not operate or be construed to operate as a waiver
of any such breach.
13 .12.
Remedies.
The rights of the parties under this Agreement are
cumulative and not exclusive of any rights or remedies which the
parties might otherwise have unless this Agreement provides to
the contrary.
08/06/2002
Four Party Agreement
Page 12
6-20
13.13. No Additional Beneficiaries.
Despite the fact that the required performance under this
agreement may have an affect upon persons not parties hereto, the
parties specifically intend no benefit therefrom, and agree that
no performance hereunder may be enforced by any person not a
party to this agreement. Notwithstanding the foregoing, this is
a three party agreement and the City is an express third party
beneficiary of the promises of Consultant to provide services
paid for by Applicant.
(End or Page. Next Page is Signature Page.)
Four Party Agreement
08/06/2002 Page 13
6-21
Signature Page (1 of 3)
Four-Party Agreement Between The City Of Chula Vista; Helix
Environmental Planning, Inc., Consultant; and Otay Project, LP
and McMillin Otay Ranch, LLC, Applicants, For Mitigation
Monitoring Services to be Rendered for Olympic Parkway Between
Brandywine Avenue and SR-125
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 hand
hereto on the date set forth adjacent thereto.
Dated:
City of Chula Vista
by: .JA~_!Irr~0;]
Mayor ,
Attest:
-~)AX~)~
Susan Bigelow
City Clerk
Approved as to form:
~r^ c~
Jolin' . aheny
City Attorney
Consultant:
Helix Environmental Planning, Inc.
by:
. (~ ~~~~
Title:
\j v'-. e. \7 ,l2-e<::K) e f\S1
Dated:
'/211 ClL-
07/25/2002
Four Party Agreement
Page 14
6-22
Signature Page (2 of 3)
Four-Party Agreement Between The City Of Chula Vista; Helix
Environmental Planning, Inc., Consultant; and Otay Project, LP
and McMillin Otay Ranch, LLC, Applicants, For Mitigation
Monitoring Services to be Rendered for Olympic Parkway Between
Brandywine Avenue and SR-125
Dated: 8/11(01- Applicant:
McMILLIN OTAY RANCH, LLC,
a Delaware limited liability
company
By: McMILLIN COMPANIES, LLC,
a Delaware limited liability
company
by:
1:~~~e~
V')~ 1{~
Title: rJ.!t7.
by:
07/25/2002
Four Party Agreement
Page 15
6-23
Signature Page (3 of 3)
Four-Party Agreement Between The City Of Chula Vista; Helix
Environmental Planning, Inc., Consultant; and Otay Project, LP'
and McMillin Otay Ranch, LLC, Applicants, For Mitigation
Monitoring Services to be Rendered for Olympic Parkway Between
Brandywine Avenue and SR-125
/' I
Dated: 71..7/0'7-
Applicant:
OTAY PROJECT, LP,
a California limited partnership
By: OTAY RANCH DEVELOPMENT, LLC,
a California limited liability
company
by:
.f/.
by:
07/25/2002
Four Party Agreement
Page 16
6-24
Exhibit A
Effective Date of Agreement: August 13, 2002
City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of California
() Redevelopment Agency ofthe City ofChuIa Vista, a political subdivision of the
State of California
( ) Industrial Development Authority of the City of Chula Vista, a
( )
Other:
form]
, a [insert business
("City")
Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Consultant: Helix Environmental Planning, Inc.
Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
Address: 8100 La Mesa Boulevard, Suite 150, La Mesa, California 91941
Applicant: McMillin Otay Ranch, LLC, a Delaware limited liability company
Business Form of Applicant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
Address. 2727 Hoover Avenue, National City, CA 91950
A-I
6-25
Applicant: Otay Project, LP, a California limited partnership
Business Form of Applicant:
( ) Sole Proprietorship
(X) Partnership
( ) Corporation
Address: 350 West Ash Street, Suite 730, San Diego, CA 92101
1. Property (Commonly known address or General Description):
The property consists of the manmade Poggi Canyon drainage channel, which runs along
Olympic Parkway from approximately the eastern boundary of the Sunbow development
(Brandywine Avenue) to planned State Route 125, as well as the upland channel buffer area,
located within the master planned community commonly known as Otay Ranch SPA One and
SPA One West.
Prior to acceptance of the successfully created biological habitats by the City of Chula Vista and
the permitting agencies, Otay Project, LP is responsible for the maintenance of the channel
segments between Olympic Parkway Station Points 44+00 and 184+25 and between Olympic
Parkway Station Points 211 +80 and 245+00, as depicted on the "Landscape Improvement Plans
For Poggi Canyon Drainage," Work Order No. ORI57G, Drawing Nos. 00-23-01 through -37,
approved by City of Chula Vista on 5/18/00.
Prior to acceptance of the successfully created biological habitats by the City of Chula Vista and
the permitting agencies, McMillin Otay Ranch, LLC is responsible for the maintenance of the
channel segment between Olympic Parkway Station Points 184+25 and 211+80, as depicted on
the "Irrigation and Planting Plans For Wetland Mitigation, Olympic Parkway Channel," Work
Order No. 0R224G, Drawing Nos. 00-073-01 through -14, approved by City of Chula Vista on
5/18/00.
2. Project Description ("Project"):
The Project consists of monitoring and reporting acl1vltles associated with created riparian
habitat within the Poggi Canyon drainage channel and created upland habitat within the channel
buffer area.
3. Entitlements applied for:
N/A
A-2
6-26
4. General Nature of Consulting Services ("Services--General"):
Environmental Monitor Specialist (Biologist) to conduct monitoring and reporting activities
associated with created riparian and upland habitat all to the satisfaction of the City's
Environmental Review Coordinator.
5. Detailed Scope of Work ("Detailed Services"):
The Consultant will function as the Environmental Monitor Specialist (Biologist) for the City of
Chula Vista for the created riparian habitat within the Poggi Canyon drainage channel and
upland habitat within the channel buffer area. The Consultant will provide biological technical
support to City staff to conduct monitoring and reporting activities. Specific responsibilities of
the Consultant with reference to the Poggi Canyon drainage channel project shall consist of the
following tasks:
a. At the direction of City staff, coordinate with the previous project biologist, Applicant's
landscape maintenance contractor and City staff;
b. When directed by City staff (prior to commencement of the five-year maintenance
monitoring period), conduct an initial walk-through of the site with City staff,
Applicant's landscape maintenance contractor, and the previous biologist (if available) to
define site boundaries and allow identification of any problem areas that may have
developed during the establishment period, the results of which shall be documented by
Consultant in a letter report (Deliverable No. I);
c. When directed by City staff, conduct a monitoring event at the beginning of the five-year
maintenance monitoring period to establish qualitative baseline data for the riparian
habitat that will be used for comparison during the following years, the results of which
shall be documented by Consultant in a report (Deliverable No.2); ,
d. When directed by City staff, as set forth in a written notice to proceed, commence
maintenance monitoring (to be performed in accordance with Table 1 below, Habitat
Maintenance Monitoring Schedule) of both the riparian habitat within the channel and the
upland habitat within the channel buffer area (monitored visually from within the riparian
habitat) for five years (unless terminated early by City staff in the event that the success
criteria are met prior to the completion of five years of maintenance monitoring),
consisting of a visual assessment of the restoration areas and identification of problems
(i.e., weeds, trash removal, erosion control, irrigation problems, plant failure, and the
like) and assessment of the need for corrective measures, including irrigation repairs and
plant replacement;
e. Document each maintenance monitoring ev.ent in a memo to City staff summarizing the
site conditions (Deliverable Nos. 3.1 to 3.29);
A-3
6-27
f. 'When directed by City staff, as set forth in a written notice to proceed, commence
technical monitoring twice during Year I (six months apart) and annually during Years 2
through 5, consisting of both qualitative and quantitative assessments of the riparian
habitat and qualitative assessment only of the upland habitat Technical monitoring of' ')
the riparian habitat will consist of quantitative monitoring through thirteen (13) 50-meter
line and belt transects (II subject and 2 control), with collection methods following the
California Native Plant Society protocol for data collection; .
g. Compare collected data to the control transects and determine progress through
comparison of data according to the success criteria presented in the Conceptual Wetland
Mitigation Plan for the Olympic Parkway Extension (Merkel & Associates, February I,
1999) and the California Department ofFish and Game 1600 Agreement;
h. Prepare a report following each technical assessment and submit to City staff for review
and comment prior to submittal to the U.S. Army Corps of Engineers, U.S. Fish and.. I
Wildlife Service, U.S. Environmental Protection Agency, California Department of Fish <
and Game, and the Regional Water Quality Control Board (Deliverable Nos. 4.1 to 4.6);
1. When directed by City staff, confirm the proposed aquatic habitat success monitoring
approach (as described below under task "j") with the Regional Water Quality Control
(- Board prior to commencement of monitoring and, if additional monitoring is required,
. modify the approach, scope and cost, as appropriate; and
)
J. I Wilen directed by City staff, as set forth in a written notice to proceed, commence aquatic
habitat success monitoring pursuant to the Section 401 Water Quality Certification for the
project by following the California Stream Bioassessment Procedures (March 1999) or
~
similar protocol for a total of five years, proposed to consist of sampling remaining
ephemeral pools in the channel following storm events in a total of four different areas as
well as taking four samples from a like drainage in the project vicinity (a total of eight
samples per year), sending each of the samples to a laboratory for faunal assessments,
and comparing the samples from the channel to the control samples. Document the
results of annual aquatic habitat success monitoring in each of the annual technical
assessment reports (Deliverable Nos. 4.2 to 4.6).
Table 1
Habitat Maintenance Monitorin" Schedule
Year(s) Specific Period FreQuencv I # Of Visits
I -- Monthly ']2
2 February - July Monthly 8
August - January Every Other Month
3 February - July Every Other Month 5
August - January Quarterly
4 and 5 -- I Quarter! y 4 per year
A-4
I
6-28
6. Schedule, Milestone, Time-Limitations within which to Perform Services.
Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
Dates or Time Limits for Delivery of Deliver abIes:
Deliverable No.1: Letter report (business letter format, including applicable
photographs) documenting the results of the initial walk-through of the site,
submitted to City staff within 30 calendar days of the walk-through. This letter
report shall include separate sections describing the Otay Project, LP and
McMillin Otay Ranch, LLC maintenance responsibility areas, as described in
Section 1 of this exhibit.
Deliverable No.2: Report (bound with cover and table of contents, including
apphcable photographs) documenting the monitoring event at the beginning of the
five-year maintenance monitoring period to establish qualitative baseline data for
the riparian habitat, submitted to City staff within 30 calendar days of the initial
monitoring event to be conducted when directed by City staff. .
Deliverable Nos. 3.1 to 3.29: Twenty-nine (29) memos (m"moranda of varying
lengths, as necessary to document conditions and issues, int)uding photographs
where warranted) to City staff documenting each maintenanc~\monitoring event
and summarizing the site conditions, submitted to City staff within 30 calendar
days of each maintenance monitoring event. As directed by City ~taff, the actual
number of required maintenance monitoring memos may vary if the maintenance
monitoring period is shortened or lengthened. These memos shall include
separate sections describing the Otay Project, LP and McMillin Otay Ranch, LLC
-maintenance responsibility areas, as des'cribed in Section I of this exhibit. .
. Deliverable Nos. 4.1 to 4.6: Six (6) reports (bound with cover and table of
contents, including applicable photographs) documenting both qualitative and
quantitative assessments of the riparian habitat and qualitative assessment only of
the upland habitat following each technical assessment, submitted to City staff for
review (within 30 calendar days of the completion of data collection) prior to
submittal to the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service,
U.S Environmental Protection Agency, California Department ofFish and Game,
and the Regional Water Quality Control Board. In addition, document the results
of annual aquatic habitat success monitoring in each of the annual technical
assessment reports (Deliverable Nos. 4.2 to 4.6). As directed by City staff, the
actual number of required technical monitoring reports may vary if the
maintenance monitoring period is shortened or lengthened.
A-S
6-29
Dates for Completion of all Consultant Services: The term of this agreement shall be for
five years from the date of the initial monitoring event to establish qualitative baseline data for
the riparian habitat, to be conducted when directed by City staff. This contract may be extended
at the sole discretion of the City Council for a one year period, for up to five additional years.
7. Documents to be provided by Applicant to Consultant:
( ) site plans ( ) grading plans ( ) architectural elevations ( ) project description.
(X) other:
Improvement Plans, Landscape and Irrigation Plans, Conceptual Wetland Mitigation
Plan, and applicable state and federal permits.
8. Contract Administrators.
City: Marilyn R.F. Ponseggi, Environmental Review Coordinator
Applicant: Frank Zaidle, Vice President, McMillin Otay Ranch, LLC
Kent Aden, Vice President, Otay Project, LP
Consultant: Tom Huffman, Vice President, Helix Environmental Planning, Inc.
9. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code:
(X)
Not Applicable.
Not an FPPC Filer.
( )
Category No. 1.
Investments and sources of income.
( )
Category No.2.
Interests in real property.
( ) Category No.3. Investments, interest in real property and sources of income
subject to the regulatory permit or licensing authority of the department.
( ) 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.
( ) 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 of
Chula Vista to provide services, supplies, materials, machinery or equipment.
( ) Category No.6. Investments in business entities and sources of income of
the type which, within the past two years, have contracted with the designated
employee's department to provide services, supplies, materials, machinery or
equipment.
A-6
6-30
( )
Category No.7.
Business positions.
10. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
(X) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included in Commercial
General Liability coverage).
( ) Errors and Omissions insurance: $250,000 (not included-in Commercial General
Liability coverage
A-7
6-31
Exhibit B
Additional Recitals
\VHEREAS, on April 13, 1999, the City Council of the City ofChula Vista
certified Mitigated Negative Declaration No. IS-99-20 and adopted the accompanying
Mitigation Monitoring and Reporting Program (MMRP) for the Olympic Parkway
Extension; and
WHEREAS, on April 20, 1999, the City Council approved the "Agreement for
Financing and Construction of Olympic Parkway and Related Roadway Improvements"
(Agreement) by and among the City ofChula Vista, McMillin Otay Ranch, LLC, and
Otay Project, LP for the segment of Olympic Parkway within the master planned
community commonly known as Otay Ranch SPA One and SPA One West; and
WHEREAS, the implementation ofthe MMRP and Agreement necessitates the
expertise of an Environmental Monitor Specialist (Biologist) and requires the hiring of a
Consultant; and
WHEREAS, it was determined by the Director of Planning and Building that staff
has neither the available time nor the expertise to perform the subject work; and
WHEREAS, the Applicant has deposited or will deposit funds necessary for the
mitigation monitoring services; and
WHEREAS, the City solicited request for proposals from three qualified
consulting firms in accordance WIth the City's informal bidding process, and three
proposals were received by the City that were responsive to the request; and
WHEREAS, waiving the City's formal bidding process for this professional
service contract, is in the City's best interest because the City is in immediate need of an
experienced Environmental Monitor Specialist (Biologist) that is familiar with the
policies and procedures of the City, the State of Cali forma and federal resource agencies,
and with the California Environmental Quality Act to ensure successful wetland, upland,
and aquatic habitat creation following the City's acceptance of plant installation, which is
anticipated to be granted shortly, at which time a biologist will be needed to commence
the five-year maintenance and monitoring program pursuant to the City's obligations
under permits issued by the U.S Army Corps of Engineers, California Department of
Fish and Game, and California Regional Water Quality Control Board for the project; and
\VHEREAS, the Consultant is uniquely qualified to serve as the Environmental
Monitor Specialist (Biologist) for this project based on their work on projects of a similar
nature, their experience with the resource agencies, their grasp of the project's
complexities, and the firm's project experience within the City ofChula Vista and the
region; and
B-1
6-32
\VHEREAS, the Environmental Review Coordinator has negotiated the details of
this agreement in accordance with procedures set forth in the Environmental Review
Procedures.
WHEREAS, the proposed contract with Helix Environmental Planning, Inc. to
provide mitigation monitoring services would be in an amount not to exceed $97,400.
c
B-2
6-33
Exhibit C
Compensation Schedule and Deposit: Terms and Conditions.
( ) Single Fixed Fee Arrangement.
For performance of all of the General and Detailed Services of Consultant 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 Amount:
Milestone or Event
Amount or Percent
of Fixed Fee
1.
2.
3.
4.
( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the General and Detailed Services of
Consultant as are separately identified in Exhibit C, under the category labeled "Phased Fixed
Fee Arrangement", Applicant shall pay the fixed fee associated with each phase of Services, in
the amounts and at the times or milestones set forth hereinbelow ("Phase Fixed Fee
Arrangement"). Consultant shall not commence Services under any Phase, and shall not be
entitled to the compensation for a Phase, unless Applicant shall have issued a notice to proceed
to Consultant as to said Phase.
C-l
6-34
Phase
Fee for
Said Phase
1.
$
2.
s
3.
$
4.
$
(X) Time and Materials
For performance of the General and Detailed Services of Consultant as herein required,
Applicant shall pay Consultant for the productive hours of time and material spent by Consultant
in the performance of said Services, at the rates or amounts set forth hereinbelow 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 amount, Consultant agrees that Consultant will perform all of
the General and Detailed Services herein required of Consultant for $97,400 including all
Materials and other "reimburseables" ("Maximum Compensation").
( ) Limitation without Further Authorization on Time and Materials Arrangement
At such time as Consultant shall have incurred time and materials equal to
("Authorization Limit"), Consultant shall not be entitled to any
additional compensation without further authorization issued in writing and approved by
the City Council. Nothing herein shall preclude Consultant from providing additional'
Services at Consultant's own cost and expense.
C-2
6-35
Category of Employee
Principal
Group Manager
Senior Scientist
Senior Project Manager
Senior Biologist
Senior Landscape Architect
Environmental Specialist II
Project Manager
Biologist III
Environmental Specialist I
Biologist II
Administrative Manager
Technical Coordinator
Graphics Coordinator
Senior Environmental Planner
Production Manager
Habitat Construction Supervisor
Biologist I
Project Landscape Architect
GIS Analyst
Technical Editor
Permit Specialist
Assistant Production Manager
Associate Biologist
Environmental Planner
Environmental Analyst
Assistant Biologist
Word Processor
Construction Foreman
Biological Technician
Clerical
Landscape Technician
Rate Schedule
Name
Tom Huffman
Larry Sward
Hourly
Rate
$145.00
125.00
$120.00
$110.00
$11 0.00
$105.00
$100.00
$85.00
$80.00
$75.00
$75.00
$75.00
$75.00
$75.00
$70.00
$70.00
$65.00
$65.00
$65.00
$60.00
$60.00
$60.00
$55.00
$55.00
$55.00
$45.00
$45.00
$45.00
$45.00
$35.00
$35.00
$25.00
Beginning in October 2003, hourly rates shall increase by 3% annually in October.
Materials Separately Paid For by Applicant
(X) Materials
Reports
Copies
(X) Travel
C-3
6-36
Cost or Rate
Actual
Actual
(X) Printing
(X) Postage
(X) Delivery
(X) Long Distance Telephone Charges
(X) Other Actual Identifiable Direct Costs
Actual
Actual
Actual
Actual
Actual
C-4
6-37
Deposit
(X) Deposit Amount: $30,000
(X) 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.
Otay Project, LP shall be responsible for the payment of seventy-five (75) percent and McMillin
Otay Ranch, LLC shall be responsible for the payment of twenty-five (25) percent of the total
amount paid to the Consultant by City staff from the Deposit for work performed pursuant to this
Agreement.
Applicant agrees to maintain a minimum balance of $15,000 in subject account which
shall be immediately replenished upon the request of the City.
( ) Use of Deposit as Security Only; Applicant to Make Billing Payments.
Upon determination by City made in good faith that Consultant 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) First ofthe Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number: To be assigned after agreement is processed.
C-5
6-38
RESOLUTION NO. 2009-
RESOLUTION OF THE CITY COUNCIL APPROVING
A FIRST Ai\1ENDMENT TO A FOUR PARTY
AGREENlENT BETWEEN THE CITY OF CHULA
VISTA; HELIX E1\.'VIR01'.'MENT AL PLAi'<NING, INC.,
CONSULTANT; Ai"\J"D MCMILLIN OTAY RANCH, LLC
Ai"\J"D OTA Y PROJECT, LP, APPLICANTS, FOR
CONSULTING SERVICES RELATED TO
CONDUCTING ADDITIONAL MITIGATION
MONITORING SERVICES FOR OLTh1PIC PARKWAY
BETWEEN BRANDYWINE AVENUE Ai"\J"D SR-125.
WHEREAS, on April 13, 1999, the City Council of the City of Chula Vista
certified Mitigated Negative Declaration No. IS-99-20 and adopted the accompanying
Mitigation Monitoring and Reporting Program (MMRP) for the Olympic Parkway
Extension; and
WHEREAS, the implementation of the MMRP necessitated the expertise of an
Environmental Monitor Specialist (Biologist) and required the hiring of a Consultant; and
WHEREAS, the Environmental Review Coordinator, in accordance with
procedures set forth in the Environmental Review Procedures, negotiated the details of a
contract with Helix Environmental Planning, Inc., a consultant, to provide mitigation
monitoring services in an amount not to exceed $97,400; and
WHEREAS, on August 13, 2002 the City Council of the City of Chula Vista
waived the City's formal bidding process and approved a four party agreement between
the City of Chula Vista; Helix Environmental Planning, Inc., Consultant; and McMillin
Otay Ranch, LLC and Otay Project, LP, Applicants, to conduct mitigation monitoring
services for Olympic Parkway between Brandywine Avenue and SR-125; and
WHEREAS, Applicant deposited the necessary funds ($97,400) for the four party
agreement to conduct mitigation monitoring services; and
WHEREAS, the parties determined that it was necessary and appropriate to
amend the original agreement to compensate for: I) additional maintenance monitoring
and associated tasks that were required; 2) preparation of aquatic sampling protocol and
sampling more locations than originally proposed by the Regional Water Quality Control
Board; and 3) biologist time for management and meetings to assist with project sign-off;
and
6-39
WHEREAS, Applicant has deposited or will deposit additional funds necessary
($27,345) for additional mitigation monitoring services, as specified by the First
Amendment to the Four Party Agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve a First Amendment to a Four Party Agreement between
the City of Chula Vista; Helix Environmental Planning, Inc., Consultant; and McMillin
Otay Ranch, LLC and Otay Project, LP, Applicants, to conduct additional mitigation
monitoring services for Olympic Parkway between Brandywine Avenue and SR-125.
Presented by:
Approved as to form by:
. ...,
., i.' /] )
\ (ic-X /' ~.,
,;"" '.: ;':: /. f- -!
I. .'L.v:-~.l1\'{L .(1(,,//
. (.:-~~ M.iesfe \J ~. - L/
"fG-CliifAttomey
Gary Halbert
Deputy City Manager/
Director of Development Services
6-40