HomeMy WebLinkAbout2010/05/11 Item 6
CITY COUNCIL
AGENDA STATEMENT
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
5/11/10, Item &7
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AWARDING A THREE-YEAR CONTRACT, WITH TWO
ONE-YEAR OPTIONS, TO NBS GOVERNMENT FINANCE
GROUP, DBA NBS, FOR PERFORMANCE OF SPECIAL DISTRICT
FORMATION, ADMINISTRATION, APPORTIONMENT,
DELINQUENCY MANAGEMENT, CONTINUING DISCLOSURE
AND OTHER SERVICES FOR ASSESSMENT DISTRICTS (ADS),
COMMUNITY FACILITIES (MELLO-ROOS) DISTRICTS (CFDS)
AND OPEN SPACE DISTRICTS )9!pS)
DIRECTOR OF PUBLIC WO~
DIRECTOROFFINANCLhk'- ~
ASSISTANT DIRECTOR 6F'ENDINEER~
CITY MANAGE~
ASSISTANT CITVj;ANAGER "7 r
4/5THS VOTE: YES 0 NO ~
SUMMARY
The City requires the services ofNBS Government Finance Group, dba NBS to perfonn fonnation,
administration, apportionment, delinquency management, continuing disclosure and other services
for the City's Assessment Districts (ADs), Community Facilities Districts (CFDs) and Open Space
Districts (OSDs). The perfonnance of all of these required services will ensure that the City's
fiduciary responsibility to the bondholders is fulfilled.
ENVIRONMENTAL REVIEW
The City's Environmental Review Coordinator has reviewed the proposed actiVIty for
compliance with the California Environmental Quality Act (CEQA) and has detennined that the
activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines;
therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not
subject to CEQA.
RECOMMENDATION
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
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DISCUSSION
Assessment Districts
The City has formed ten (10) Assessment Districts under the Municipal Improvement Act of
1913 and bonds have been issued pursuant to the Improvement Bond Act of 1915 to provide
financing for the construction of public infrastructure for new developments through the issuance
of Assessment District bonds. The repayment of the bonds is made from assessment installments
collected from the property owners in conjunction with their property taxes. The following table
shows the City's current Assessment Districts:
Current Assessment Districts within the City of Chula Vista
Assessment District Refinancing District
No. No. Name
87-1 2005-1 East H Street
88-1 2001-2 Otav Lakes Road I
88-2 2005-1 Otav Lakes Road, Rancho del Rey
90-1 2001-1 Salt Creek I
90-2 2001-2 Otav Vallev Road
90-3 2001-1 Eastlake Greens I
91-1 2001-1 Telegraph Canyon Road II
92-2 2001-2 Autopark
94-1 None Eastlake Greens II
97-2 2005-2 Otay Ranch Village I
In addition to the principal and interest, Section 8730 of the Streets and Highways Code allows
the collection of an "annual administrative fee" from every parcel within an Assessment District
to cover the cost of the administration of the District.
Community Facilities Districts
In conjunction with the Assessment Districts, the City has established twenty-two (22)
Community Facilities (Mello-Roos) Districts (CFDs) in accordance with the Mello-Roos
Community Facilities Act of 1982 for the construction of public facilities and the maintenance of
open space areas. These Districts are as follows:
Current Community Facilities Districts within the City of Chula Vista
Community
Facilities
District
No. Name
97-1 Open Space Maintenance District (Otav Ranch - SP A One, Villages 1 & 5)
97-2 Preserve Maintenance District
97-3 Otav Ranch McMillin Acquisition
98-1 Interim Open Space Maintenance District (Otay Project, LLC-OVP, Vil1ages 1
West, 2, 2 West, 6, 7 & Planning Area 12)
98-2 Interim Open Space Maintenance District (McMillin - D.A. America, Otay - SPA
Two, Villages 6 & 7)
98-3 ()Pen Space Maintenance District No. 35 (Sunbow II)
99-1 Otav Ranch SPA I (Series A bonds)
99-2 Otay Ranch SPA One-Village 1 West
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07M Eastlake Woods, Vistas & Land SwaD
08M McMillin Otav Ranch Village 6
09M Village II - Otay Ranch Brookfield Shea
11M McMillin Rolling Hills Ranch
12M McMillin Otav Ranch Village 7
13M Otay Ranch Village 2
06-1 Eastlake Woods, Vistas & Land SwaD
07-1 Otay Ranch Village II
08-1 Otay Ranch Village 6
12-1 McMillin Otav Ranch Village 7
13-1 Otav Ranch Village 7
2000-1 Sunbow II Villages 5-10
2001-1 San Miguel Ranch
2001-2 McMillin Otav Ranch Village 6
Twelve (12) of these Districts (CFDS 97-1, 97-3, 98-1, 98-2, 98-3, 99-2, 07M, 08M, 09M, 11M,
12M, and 13M) provide funds for the maintenance of open space or preserve areas. Ten (10)
Districts (CFDs 97-3, 99-1, 2000-1, 2001-1, 2001-2, 061, 071, 081, 121, and 131) provide funds
for the construction of Transportation Development Impact Fee (TDIF) improvements, backbone
streets and associated improvements, Public Facilities Development Impact Fee (PFDIF)
improvements, and pedestrian bridges.
Open Space Districts
In addition to ADs and CFDs, the City has also established Open Space Districts (OSDs). The
City administers and maintains twenty-four (24) OSDs and they are shown below:
Current Open Space Districts within the City of Chula Vista
Open
Space
District
No. Name
I EI Rancho Del Rev 1-4
2 Lark Haven
3 Rancho Robinhood Units I & 2
4 Bonita Ridge
5 South Bay Villas
6 HilltoD Vista
7 Zenith Units 2, 3, 4
8 Rancho Robinhood Unit 3
9 El Rancho Del Rey
10 EI Rancho Del Rev, Casa Del Rey
II Hidden Vista Village
14 Bonita Long Canyon
15 Bonita Haciendas
17 Bel Air Ridge
18 Rancho Del Sur
20 Rancho Del Rev
23 Otay Rio Business Park
24 Canvon View Homes
26 Park Bonita
31 Telegraph Canyon Estates
33 Broadwav Business Home Village
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- Eastlake Maintenance District No.1
- Bay Boulevard Maintenance District
- Towne Centre Maintenance District
OSDs were created with each particular development to ensure financing for the perpetual
maintenance of common open space areas. The Districts provide a financing mechanism for the
City to levy an annual collectible to cover the costs and maintenance associated with each OSD.
City Council approves the annual collectible and then, similar to ADs and CFDs, the levy
collection also appears on the owner's property tax bill.
Scope of Work
NBS shall prepare annual assessment collection reports, assessment diagrams, annual
collections, and all files necessary to submit to the County Auditor-Controller before August 10
of each year for inclusion on the property owner's tax bill. They will also provide administrative
services as requested by the City to include, but are not limited to, formation of new districts,
closeout services on special district construction funds as needed, providing bond call spreads,
and releasing of liens associated with early payoffs.
They shall also provide apportionment services in compliance with Section 8730 of the Streets
and Highways Code, which states that when a parcel of land on which there is an unpaid
assessment divides, the original assessment must be segregated and apportioned in accordance
with the benefits to the several pieces of the original lot. In addition to the reports, NBS shall
notify bondholders and underwriters of the apportionment.
Moreover, NBS will provide bi-annual reports of delinquent parcels to the City and, upon
approval of the reports; contact delinquent property owners; be responsible for requesting direct
payments to the City by delinquent property owners; and removal of the delinquent assessments
from the County tax roll for all Special Districts.
Additionally, NBS will provide continuing disclosure pertammg to the Special Districts as
necessary to ensure ongoing compliance with the continuing disclosure requirements of Rule
IOb-5 and 15c2-12 of the Securities and Exchange Commission. They will supply financial and
operating data called for by disclosure agreements or which would otherwise be considered
material in keeping securities holders informed of the investment quality of Debt Issue(s). NBS
will prepare an Annual Information Statement, which includes a report that will contain relevant
documents relating to Debt Issue(s) and required third-party data and other information, which
has been analyzed and verified for accuracy, materiality and appropriateness by NBS.
Consultant Selection Process
City Staff followed Chula Vista Municipal Code Section 2.56.110 in the consultant selection
process. As required, a Request for Proposal (RFP) was prepared and sent to five (5) firms
known to have expertise in the administration of Special Tax Districts. Additionally an
advertisement inviting proposals was published in the San Diego Daily Transcript and posted on
Planet Bids.
The RFP included a description of the scope of work and the time frames for completion. Each
firm was asked to indicate in its proposal: I) proof of general familiarity with various types of
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Special Tax Districts; 2) proof of capacity, resources and specialized equipment or expertise to
perform the work; 3) names and qualifications of all key personnel to be used in the project,
including any subconsultants; 4) past record of performance and references; 5) the location of the
office where the work is to be performed; and 6) a cost estimate.
The following five (5) firms responded to the RFP mailing and invitation and sent proposals:
Firm Name
David Taussig & Associates
NBS, Local Government Solutions (NBS)
Psomas
Special District Financing & Administration
Willdan Financial Services
Location
Newport Beach, CA
Temecula, CA
San Diego, CA
Escondido, CA
Temecula, CA
The Selection Committee consisted of the following members:
Merceditas Leclair, Sr. Management Analyst
Nadine Mandery, Treasury Manager
Robert Beamon, Administrative Services Manager
Eric Adachi, Associate Accountant
Amy Partosan, Administrative Analyst II
Maria Quicho, Administrative Analyst II
The Selection Committee members were provided with individual copies of the proposals from
the five (5) firms. They were invited to participate in the interview process and they all
accepted. On April 13,2010 and April 15, 2010 the Selection Committee interviewed, judged,
and discussed the firms based on the qualification of personnel, adherence of firms proposal to
RFP guidelines and quality of presentation, resources available to perform tasks on time and
within budget, firm experience directly related to contract, response to interview questions, total
cost and justification, and proximity of office. After careful consideration, NBS was selected as
the most qualified to perform the services required in the RFP.
The decision to choose NBS for this contract was based on several factors. One of these factors
is that NBS has highly qualified and experienced personnel in this area of expertise. NBS also
has a number of resources available to the City and would have a dedicated project team
assigned only to the City of Chula Vista. NBS has provided excellent customer service
throughout the entire length of their contract with the City, and other municipalities echo this
praise for the exceptional quality of NBS' customer service. Staff also recommends the approval
of this contract because there are no conflict of interest concerns, as NBS works strictly with
municipalities only, and has no business dealings with developers. This allows NBS to focus on
the best interests of the City and its residents.
The Agreement
The proposed agreement with NBS uses the City's standard two-party agreement. Under this
contract, the Consultant agrees to perform the scope of work for a three-year term beginning on
July 1, 2010 through June 30, 2013. This term may be extended for two (2) optional one-year
periods, at the sole discretion ofthe City Manager. The scope of work included in the contract is
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extremely precise in order to ensure that all of the City requirements are included in the fee. The
compensation schedule can be reviewed in Exhibit A of the attached agreement.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that: (i)
regarding work to be done by NSB with respect to future ADs, CFDs and OSDs, the decision is
not site specific and consequently the 500 foot rule found in California Code of Regulations Title
2, section I 8704.2(a)(l ) is not applicable to this decision; and (ii) regarding work to be done by
NSB with respect to existing ADs, CFDs and OSDs, the decision will impact at least 5,000
property owners in the City, in substantially the same manner, thus the decision is subject to the
"public generally" exception, pursuant to California Code of Regulations Title 2, sections 18707
and 18707.1.
CURRENT YEAR FISCAL IMPACT
There is no fiscal impact to the General Fund. The costs for essential annual tasks, which
include Administration, Delinquency Management, and Continuing Disclosure total $239,050,
and are paid for by each District from the annual levies placed on the affected parcels.
ON-GOING FISCAL IMPACT
The on-going fiscal impact will be similar to the current fiscal impact, with the possibility of
increased costs as a result of adding new districts and/or new parcels.
ATTACHMENTS
1. Agreement with NBS
Prepared by:
Maria Quicho, Administrative Analyst II, Public Work., Engineering Department
J:\Engil1cerIAGENDAICAS2010105-II-fO'NBS CAS- JDSM Redline.doc
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THE A TT ACHED 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
Dated:
/1,-15-,
<, S LJ
/ /
AGREEMENT BETWEEN
CITY OF CHULA VISTA
AND
NBS GOVERNMENT FINANCE GRPOUP, dba NBS
TO PROVIDE SPECIAL DISTRICT FORMATION, ADMINISTRATION,
APPORTIONMENT, DELINQUENCY MANAGEMENT, CONTINUING
DISCLOSURE AND OTHER SERVICES
6-7
PARTIES AND RECITAL PAGE(S)
Agreement between
City of Chula Vista
and
NBS Government Finance Group, dba NBS,
To Provide Special District Formation, Administration, Apportionment, Delinquency
Management, Continuing Disclosure and Other Services
This agreement ("Agreement"), dated for the purposes of reference
only, and effective as of the date last executed unless another date is otherwise specified in
Exhibit A to this Agreement ("Exhibit A"), Paragraph I, is between the City-related entity whose
name and business form is indicated on Exhibit A, Paragraph 2, ("City"), and the entity whose
name, business form, place of business and telephone numbers are indicated on Exhibit A,
Paragraphs 4 through 6, ("Consultant"), and is made with reference to the following facts:
Recitals
WHEREAS, the City has formed Assessment Districts to provide funding for benefiting
properties and infrastructure under the Municipal Improvement Acts 1913 and 1915; and,
WHEREAS, the City has formed, or is in the process of forming, Mello-Roos
Community Facilities Districts to provide funding for the construction of infrastructure or for the
maintenance of open space areas in accordance with the Community Facilities Act of 1982; and,
WHEREAS, the City has formed twenty-four Open Space Districts to provide funding
for perpetual maintenance of common open space areas; and,
WHEREAS, Section 8730 of the Streets and Highways Code requires that when a parcel
of land upon which there is an unpaid assessment divides, the original assessment must be
segregated and apportioned in accordance with the benefits to the several parts of the original
list; and.
WHEREAS, the City requires a consultant for the performance of special district
formation, administration, apportionment, delinquency management, continuing disclosure and
other services for the said Districts and any future Districts; and,
WHEREAS, the Request for Proposal was prepared and advertised, proposals were
received and reviewed, and firms were interviewed and ranked in accordance with City Policies;
and,
WHEREAS, Consultant warrants and represents that it is experienced and staffed in a
manner such that it can deliver the services required of Consultant to City in accordance with the
time frames and the terms and conditions of this Agreement.
[End of Recitals. Next Page Starts Obligatory Provisions.]
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OBLIGATORY PROVISIONS PAGES
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually
agree as follows:
All of the Recitals above are incorporated into this Agreement by this reference.
ARTICLE I. CONSULTANT'S OBLIGATIONS
A. General
l. General Duties. Consultant shall perform all of the services described on Exhibit A,
Paragraph 7 ("General Duties").
2. ScoDe of Work and Schedule. In performing and delivering the General Duties,
Consultant shall also perform the services, and deliver to City the "Deliverables"
described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according
to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the
essence of this agreement. The General Duties and the work and Deliverables required in
the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to
complete the Defined Services by the times indicated does not, except at the option ofthe
City, terminate this Agreement.
a. Reductions in Scope of Work. City may independently, or upon request from
Consultant, from time to time, reduce the Defined 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 of negotiating a corresponding reduction in
the compensation associated with the reduction.
b. Additional Services. In addition to performing the Defined Services, City may
require Consultant to perform additional consulting services related to the Defined
Services ("Additional Services"), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform same on a time and
materials basis at the rates set forth in the "Rate Schedule" in Exhibit A,
Paragraph I O(C), unless a separate fixed fee is otherwise agreed upon. All
compensation for Additional Services shall be paid monthly as billed.
3. Standard of Care. The Consultant expressly warrants that the work to be performed
pursuant to this Agreement, whether Defined Services or Additional Services, shall be
performed in accordance with the standard of care ordinarily exercised by members of
the profession currently practicing under similar conditions and in similar locations.
a. No Waiver of Standard of Care. Where approval by City is required, it is understood
to be conceptual approval only and does not relieve the Consultant of responsibility
for complying with all laws, codes, industry standards, and liability for damages
caused by negligent acts, errors, omissions, noncompliance with industry standards,
or the willful misconduct of the Consultant or its subcontractors.
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B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the
Consultant must comply with the federal or state law and implementing regulations. No
provision of this Agreement requires the Consultant to observe or enforce compliance with
any provision, perform any other act, or do any other thing in contravention of federal, state,
territorial, or local law, regulation, or ordinance. If compliance with any provision of this
Agreement violates or would require the Consultant to violate any law, the Consultant agrees
to notify City immediately in writing. Should this occur, the City and the Consultant agree
that they will make appropriate arrangements to proceed with or, if necessary, amend or
terminate this Agreement, or portions of it, expeditiously.
1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that
all participants utilized by the Consultant to complete its obligations under this
Agreement, such as subcontractors, comply with all applicable laws, regulations,
ordinances, and policies, whether federal, state, or local, affecting Project
implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of
the Consultant under this Agreement, the Consultant shall ensure that the subcontractor
carries out the Consultant's responsibilities as set forth in this Agreement.
C. Insurance
I. General. Consultant must procure and maintain, during the period of performance of this
Agreement, and for twelve months after completion, policies of insurance from insurance
companies to protect against claims for injuries to persons or damages to property that
may arise from or in connection with the performance of the work under this Agreement
and the results of that work by the Consultant, his agents, representatives, employees or
subcontractors, and provide documentation of same prior to commencement of work.
2. Minimum Scope of Insurance. Coverage must be at least as broad as:
a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence
Form CGOOOl).
b. Auto. Insurance Services Office Form Number CA 0001 covermg Automobile
Liability, Code 1 (any auto).
c. We. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to
the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to
include contractual liability.
3. Minimum Limits of Insurance. Consultant must maintain limits no less than those
included in the table below:
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i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury,
(Including (including death), and property damage. If Commercial General
operations, Liability insurance with a general aggregate limit is used, either
products and the general aggregate limit must apply separately to this
completed Project/location or the general aggregate limit must be twice the
operations, as required occurrence limit.
annlicable)
ii. Automobile $1,000,000 per accident for bodily injury, including death, and
Liability: property damage.
iii. Workers' Statutory
Compensation $1,000,000 each accident
Employer's $1,000,000 disease-policy limit
Liabilitv: $1,000,000 disease-each emoloyee
iv. Professional $1,000,000 each occurrence
Liability or Errors
& Omissions
Liability:
4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the option of the City, either the insurer will
reduce or eliminate such deductibles or self-insured retentions as they pertain to the City,
its officers, officials, employees and volunteers; or the Consultant will provide a financial
guarantee satisfactory to the City guaranteeing payment of losses and related
investigations, claim administration, and defense expenses.
5. Other Insurance Provisions. The general liability, automobile liability, and where
appropriate, the worker's compensation policies are to contain, or be endorsed to contain,
the following provisions:
a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents,
and volunteers are to be named as additional insureds with respect to all policies of
insurance, including those with respect to liability arising out of automobiles owned,
leased, hired or borrowed by or on behalf of the Consultant, where applicable, and,
with respect to liability arising out of work or operations performed by or on behalf of
the Consultant, including providing materials, parts or equipment furnished in
connection with such work or operations. The general liability additional insured
coverage must be provided in the form of an endorsement to the Consultant's
insurance using ISO CG 20 I 0 (11/85) or its equivalent. Specifically, the endorsement
must not exclude Products/Completed Operations coverage.
b. Primary Insurance. The Consultant's General Liability insurance coverage must be
primary insurance as it pertains to the City, its officers, officials, employees, agents,
and volunteers. Any insurance or self-insurance maintained by the City, its officers,
officials, employees, or volunteers is wholly separate from the insurance of the
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Consultant and in no way relieves the Consultant from its responsibility to provide
insurance.
c. Cancellation. The insurance policies required by this Agreement shall not be canceled
by either party, except after thirty days' prior written notice to the City by certified
mail, return receipt requested. The words "will endeavor" and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company, its
agents, or representatives" shall be deleted from all certificates.
d. Active Negligence. Coverage shall not extend to any indemnity coverage for the
active negligence of the additional insureds in any case where an agreement to
indemnify the additional insured would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
e. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in
favor of the City for each required policy providing coverage for the term required by
this Agreement.
6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or
Errors & Omissions coverage are written on a claims-made form:
a. Retro Date. The "Retro Date" must be shown, and must be before the date of the
Agreement or the beginning of the work required by the Agreement.
b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance
must be provided for at least five years after completion of the work required by the
Agreement.
c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a "Retro Date" prior to the effective date of the
Agreement, the Consultant must purchase "extended reporting" coverage for a
minimum of five years after completion of the work required by the Agreement.
d. Copies. A copy of the claims reporting requirements must be submitted to the City
for review.
7. Acceptabilitv of Insurers. Insurance is to be placed with licensed insurers admitted to
transact business in the State of California with a current A.M. Best's rating of no less
than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the
State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M.
Best's rating of no less than A X. Exception may be made for the State Compensation
Fund when not specifically rated.
8. Verification of Coverage. Consultant shall furnish the City with original certificates and
amendatory endorsements effecting coverage required by Section LC. of this Agreement.
The endorsements should be on insurance industry forms, provided those endorsements
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or policies conform to the requirements of this Agreement. All certificates and
endorsements are to be received and approved by the City before work commences. The
City reserves the right to require, at any time, complete, certified copies of all required
insurance policies, including endorsements evidencing the coverage required by these
specifications.
9. Subcontractors. Consultant must include all subconsultants as insureds under its policies
or furnish separate certificates and endorsements for each subconsultant. All coverage for
subconsultants is subject to all ofthe requirements included in these specifications.
10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not
be construed to limit the Consultant's obligations under this Agreement, including
Indemnity.
D. Security for Performance
I. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Performance Bond (indicated by a check mark in the
parenthetical space immediately preceding the subparagraph entitled "Performance
Bond"), then Consultant shall provide to the City a performance bond, in the amount
indicated at Exhibit A, Paragraph 18, in the form 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 Treasury Circular 570,
http://www.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue
bonds in the amount required by the Agreement, and which also satisfy the requirements
stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise
by laws or regulations. All bonds signed by an agent must be accompanied by a certified
copy of such agent's authority to act. Surety companies must be duly licensed or
authorized in the jurisdiction in which the Project is located to issue bonds for the limits
so required. Form must be satisfactory to the Risk Manager or City.
2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical
space immediately preceding the subparagraph entitled "Letter of Credit"), then
Consultant shall provide to the City an irrevocable letter of credit callable by the City at
its unfettered discretion by submitting to the bank a letter, signed by the City Manager,
stating that the Consultant is in breach of the terms of this Agreement. The letter of
credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk
Manager or City Attorney which amount is indicated in the space adjacent to the term,
"Letter of Credit," in Exhibit A, Paragraph 18.
3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide security other than a Performance Bond or a Letter of Credit
(indicated by a check mark in the parenthetical space immediately preceding the
subparagraph entitled "Other Security"), then Consultant shall provide to the City such
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other security therein listed in a form and amount satisfactory to the Risk Manager or
City Attorney.
E. Business License. Consultant agrees to obtain a business license from the City and to
otherwise comply with Title 5 of the Chula Vista Municipal Code.
ARTICLE II. CITY OBLIGATIONS
A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule, and to provide direction and
guidance to achieve the objectives of this Agreement. The City shall allow Consultant access
to its office facilities, files and records, as deemed necessary and appropriate by the City,
throughout the term of this Agreement. In addition, City agrees to provide the materials
identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of
those materials beyond thirty days after authorization to proceed, shall constitute a basis for
the justifiable delay in the Consultant's performance.
B. Compensation.
1. Following Receipt of Billing. Upon receipt of a properly prepared bill from Consultant,
submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more
frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17,
City shall compensate Consultant for all services rendered by Consultant according to the
terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing
compensation relationship indicated by a "checkmark" next to the appropriate
arrangement, subject to the requirements for retention set forth in Paragraph 18 of
Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in
Exhibit A, Paragraph 11.
2. SUDDorting Information. Any billing submitted by Consultant shall contain sufficient
information as to the propriety of the billing, including properly executed payrolls, time
records, invoices, contracts, or vouchers describing in detail the nature of the charges to
the Project in order to permit the City to evaluate that the amount due and payable is
proper, and such billing shall specifically contain the City's account number indicated on
Exhibit A, Paragraph 17(C) to be charged upon making such payment.
3. Exclusions. In determining the amount of the compensation City will exclude any cost:
I) incurred prior to the effective date of this Agreement; or 2) arising out of or related to
the errors, omissions, negligence or acts of willful misconduct of the Consultant, its
agents, employees, or subcontractors.
a. Errors and Omissions. In the event that the City Administrator determines that
the Consultant's negligence, errors, or omissions in the performance of work
under this Agreement has resulted in expense to City greater than would have
resulted if there were no such negligence, errors, omissions, Consultant shall
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reimburse City for any additional expenses incurred by the City. Nothing in this
paragraph is intended to limit City's rights under other provisions of this
Agreement.
4. Payment Not Final Aooroval. The Consultant understands and agrees that payment to the
Consultant for any Project cost does not constitute a City final decision about whether
that cost is allowable and eligible for payment under the Project and does not constitute a
waiver of any violation of Consultant of the terms of the Agreement. The Consultant
acknowledges that City will not make a final determination about the eligibility of any
cost until the final payment has been made on the Project or the results of an audit of the
Project requested by the City has been completed, whichever occurs latest. If City
determines that the Consultant is not entitled to receive any portion of the compensation
due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant
agrees that Project closeout will not alter the Consultant's responsibility to return any
funds due City as a result of later refunds, corrections, or other similar transactions; nor
will Project closeout alter the right of City to disallow costs and recover funds provided
for the Project on the basis of a later audit or other review.
a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific
amounts are owed to City, whether for excess payments or disallowed costs, the
Consultant agrees to remit to City promptly the amounts owed, including applicable
interest.
ARTICLE III. ETHICS
A. Financial Interests of Consultant
1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A,
Paragraph 14, 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 economic interests to the City Clerk on the required Statement of Economic
Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if
none are specified, then as determined by the City Attorney.
2. No Particioation in Decision. 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.
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 economic 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.
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4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is
designated as an FPPC Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during the term of this
Agreement which would constitute a conflict of interest as prohibited by the Fair Political
Practices Act.
5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated
as an FPPC Filer, Consultant fuliher warrants and represents that Consultant will
immediately advise the City Attorney if Consultant learns of an economic interest of
Consultant's that may result in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
6. Specific Warranties Against Economic Interests. Consultant warrants, represents and
agrees that:
a. 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 any property which may be the subject matter of the Defined
Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, ("Prohibited
Interest"), otherthan as listed in Exhibit A, Paragraph 14.
b. No promise of future employment, remuneration, consideration, gratuity or other
reward or gain has been made to Consultant or Consultant Associates in connection
with 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
twelve months thereafter.
c. Consultant Associates shall not acquire any such Prohibited Interest within the Term
of this Agreement, or for twelve months after the expiration of this Agreement,
except with the written permission of City.
d. Consultant may not conduct or solicit any business for any party to this Agreement,
or for any third party that may be in conflict with Consultant's responsibilities under
this Agreement, except with the written permission of City.
ARTICLE IV. LIQUIDATED DAMAGES
A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate
is provided in Exhibit A, Paragraph 13.
I. Estimating Damages. It is acknowledged by both parties that time is of the essence in the
completion of this Agreement. It is difficult to estimate the amount of damages resulting
from delay in performance. The parties have used their judgment to arrive at a reasonable
amount to compensate for delay.
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2. Amount of Penalty. Failure to complete the Defined Services within the allotted time
period specified in this Agreement shall result in the following penalty: For each
consecutive calendar day in excess of the time specified for the completion of the
respective work assignment or Deliverable, the Consultant shall pay to the City, or have
withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A,
Paragraph 13 ("Liquidated Damages Rate").
3. Request for Extension of Time. If the performance of any act required of Consultant is
directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual
governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other
causes beyond the reasonable control of the Consultant, as determined by the City,
Consultant shall be excused from performing that act for the period of time equal to the
period of time of the prevention or delay. In the event Consultant claims the existence of
such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in
writing of that fact within ten calendar days after the beginning of any such claimed
delay. Extensions of time will not be granted for delays to minor portions of work unless
it can be shown that sllch delays did or will delay the progress ofthe work.
ARTICLE V. INDEMNIFICATION
A. Defense, Indemnity, and Hold Harmless.
l. General Requirement. Except for liability for Design Professional Services covered
under Article V., Section A.2., Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers, agents and employees, from and
against any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to any alleged acts, omissions, negligence, or
willful misconduct of Consultant, its officials, officers, employees, agents, and
contractors, arising out of or in connection with the performance of the Defined Services
or this Agreement. This indemnity provision does not include any claims, damages,
liability, costs and expenses (including without limitations, attorneys fees) arising from
the sole negligence, active negligence or willful misconduct of the City, its officers,
employees. Also covered is liability arising from, connected with, caused by or claimed
to be caused by the active or passive negligent acts or omissions of the City, its agents,
officers, or employees which may be in combination with the active or passive negligent
acts or omissions of the Consultant, its employees, agents or officers, or any third party.
2. Design Professional Services. If Consultant provides design professional services, as
defined by California Civil Code section 2782.5, as may be amended from time to time,
Consultant shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to the negligence, recklessness, or willful misconduct of Consultant, its officials, officers,
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employees, agents, consultants, and contractors arising out of or in connection with the
performance of Consultant's services. Consultant's duty to defend, indemnifY, and hold
harmless shall not include any claims or liabilities arising from the sole negligence, active
negligence or willfill misconduct of the City, its agents, officers or employees. This
section in no way alters, affects or modifies the Consultant's obligations and duties under
this Agreement.
3. Costs of Defense and Award. Included in the obligations in Sections A.I and A.2, above,
is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any
and all suits, actions or other legal proceedings, that may be brought or instituted against
the City, its directors, officials, officers, employees, agents and/or volunteers, subject to
the limitations in Sections A.!. and A.2. Consultant shall pay and satisfY any judgment,
award or decree that may be rendered against City or its directors, officials, officers,
employees, agents and/or volunteers, for any and all related legal expenses and costs
incurred by each of them, subject to the limitations in Sections A.!. and A.2.
4. Insurance Proceeds. Consultant's obligation to indemnifY shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers,
employees, agents, and/or volunteers.
5. Declarations. Consultant's obligations under Article V shall not be limited by any prior
or subsequent declaration by the Consultant.
6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the
indemnity and defense provisions set forth in Article V.
7. Survival. Consultant's obligations under Article V shall survive the termination of this
Agreement.
ARTICLE VI. TERMINATION OF AGREEMENT
A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and
proper manner Consultant's obligations under this Agreement, or if Consultant shall violate
any of the covenants, agreements or stipulations of this Agreement, City shall have the right
to terminate this Agreement by giving written notice to Consultant of such termination and
specifying the effective date thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents, data, studies, surveys,
drawings, maps, reports and other materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be entitled to receive just and
equitable compensation, in an amount not to exceed that payable under this Agreement and
less any damages caused City by Consultant's breach, for any work satisfactorily completed
on such documents and other materials up to the effective date of Notice of Termination,.
B. Termination of Agreement for Convenience of City. City may terminate this Agreement
at any time and for any reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least thirty (30) days before the
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effective date of such tennination. In that event, all finished and unfinished documents and
other materials described hereinabove shall, at the option of the City, become City's sole and
exclusive property. If the Agreement is terminated by City as provided in this paragraph,
Consultant shall be entitled to receive just and equitable compensation, in an amount not to
exceed that payable under this Agreement, for any satisfactory work completed on such
documents and other materials to the effective date of such termination. Consultant hereby
expressly waives any and all claims for damages or compensation arising under this
Agreement except as set forth in this section.
ARTICLE VII. RECORD RETENTION AND ACCESS
A. Record Retention. During the course of the Project and for three (3) years following
completion, the Consultant agrees and to maintain, intact and readily accessible, all data,
documents, reports, records, contracts, and supporting materials relating to the Project as City
may require.
B. Access to Records of Consultant and Snbcontractors. The Consultant agrees to permit,
and require its subcontractors to permit City or its authorized representatives, upon request,
to inspect all Project work, materials, payrolls, and other data, and to audit the books,
records, and accounts ofthe Contractor and its subcontractors pertaining to the Project.
C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting
and record retention requirements of this Agreement.
ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT
A. Project Completion. Within ninety (90) calendar days following Project completion or
termination by City, Consultant agrees to submit a final certification of Project expenses and
audit reports, as applicable.
B. Audit of Consultants. Consultant agrees to perform financial and compliance audits the
City may require. The Consultant also agrees to obtain any other audits required by City.
Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit
costs are allowable Project costs.
C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has
closed the Project, and either forwards the final payment or acknowledges that the Consultant
has remitted the proper refund. The Consultant agrees that Project closeout by City does not
invalidate any continuing requirements imposed by the Agreement or any unmet
requirements set forth in a written notification from City
ARTICLE IX. MISCELLANEOUS PROVISIONS
A. Assignability. The services of Consultant are personal to the City, and Consultant shall not
assign any interest in this Agreement, and shall not transfer any interest in the same (whether
by assignment or notation), without prior written consent of City.
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l. Limited Consent. City hereby consents to the assignment of the portions of the Defined
Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as
"Permitted Subconsultants".
B. Ownership, Publication, Reproduction and Use of Material. All reports, studies,
infonnation, 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 to private use, copyrights or patent rights by Consultant in the
United States or in any other country without the express written consent of City. City shall
have unrestricted authority to publish, disclose (except as may be limited by the provisions of
the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in
part, any such reports, studies, data, statistics, forms or other materials or properties produced
under this Agreement.
C. Independent Contractor. City is interested only in the results obtained and Consultant shall
perfonn as an independent contractor with sole control of the manner and means of
perfonning the services required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any of the Consultant's agents,
employees or representatives are, for all purposes under this Agreement, independent
contractors and shall not be deemed to be employees of City, and none of them shall be
entitled to any benefits to which City employees are entitled including but not limited to,
overtime, retirement benefits, worker's compensation benefits, injury leave or other leave
benefits. Therefore, City will not withhold state or federal income tax, social security tax or
any other payroll tax, and Consultant shall be solely responsible for the payment of same and
shall hold the City harmless with regard to them.
I. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have
no authority, express or implied, to act on behalf of City in any capacity whatsoever, as
an agent or otherwise. Consultant shall have no authority, express or implied, to bind
City or its members, agents, or employees, to any obligation whatsoever, unless expressly
provided in this Agreement.
2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and
shall require that it's agents, employees, subcontractors agree that City shall not be
responsible for any obligations or liabilities to any third party, including its agents,
employees, subcontractors, or other person or entity that is not a party to this Agreement.
Notwithstanding that City may have concurred in or approved any solicitation,
subagreement, or third party contract at any tier, City shall have no obligation or liability
to any person or entity not a party to this Agreement.
D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought arising out of this Agreement, against City unless a claim has first been presented in
writing and filed with City and acted upon by City in accordance with the procedures set
forth in Chapter 1.34 of the Chuta Vista Municipal Code, as same may from time to time be
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amended, the provisions of which are incorporated by this reference as if fully set forth
herein, and such policies and procedures llsed by City in the implementation of same. Upon
request by City, Consultant shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
E. Administration of Contract. Each party designates the individuals ("Contract
Administrators") indicated on Exhibit A, Paragraph 12, as that party's contract administrator
who is authorized by the party to represent it in the routine administration ofthis Agreement.
F. Term. This Agreement shall terminate when the parties have complied with all executory
provisions hereof.
G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is
agreed that the prevailing party shall be entitled to a judgment against the other for an
amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party"
shall be deemed to be the party who is awarded substantially the relief sought.
H. Statement of Costs. In the event that Consultant prepares a report or document, or
participates in the preparation of a report or document in performing the Defined Services,
Consultant shall include, or cause the inclusion of, in the report or document, a statement of
the numbers and cost in dollar amounts of all contracts and subcontracts relating to the
preparation of the report or document.
I. Consultant is Real Estate Broker and/or Salesman. Ifthe box on Exhibit A, Paragraph 15
is marked, the Consultant and/or is principals is/are licensed with the State of California or
some other state as a real estate broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor its principals are licensed real estate brokers or salespersons.
J. 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 in this Agreement as the places of
business for each of the designated parties.
K. Integration. This Agreement, together with any other written document referred to or
contemplated in it, embody the entire Agreement and understanding between the parties
relating to the subject matter hereof. Neither this Agreement nor any provision of it may be
amended, modified, waived or discharged except by an instrument in writing executed by the
party against which enforcement of sllch amendment, waiver or discharge is sought.
L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to
the other party that it has legal authority and capacity and direction from its principal to enter
into this Agreement, and that all necessary resolutions or other actions have been taken so as
to enable it to enter into this Agreement.
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M. Governing LawNenue. 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 under it, shall be the City of Chula Vista.
(End of page. Next page is signature page.)
Page 15
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Signature Page
to
Agreement between
City of Chula Vista and
NBS Government Finance Group, dba NBS,
To Provide Special District Formation, Administration, Apportionment, Delinquency
Management, Continuing Disclosure and Other Services
IN WITNESS WHEREOF, City and Consultant have executed this Agreement,
indicating that they have read and understood same, and indicate their full and complete consent
to its tenns:
Dated:
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to fonn:
Bart Miesfeld, City Attorney
Dated:
:~'~.~'
Mike Rentner
President and CEO
Exhibit List to Agreement (X)
Exhibit A.
Page 16
6-23
Exhibit A
to
Agreement between
City ofChula Vista
and
NBS Government Finance Group, dba NBS
I. Effective Date of Agreement:
Julv 1. 2010
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of Califomia
( ) Redevelopment Agency of the City ofChula Vista, a political subdivision of the State of
California
( ) Industrial Development Authority of the City ofChula Vista, a
( ) Other:
, a [insert business form]
("City")
3. Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chuta Vista, CA 91910
4. Consultant:
NBS Government Finance Group, dba NBS
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) California S Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
32605 Temecula Parkway, Suite 100
Temecula, CA 92592
Phone: (800) 676-7516
Fax: (951) 296-1998
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7. General Duties:
The Consultant shall provide Special District formation, administration, apportionment,
delinquency management, continuing disclosure and other services as requested by the City from
July I, 2010 until June 30, 2013. The City Manager, at his/her sole discretion, may extend the
agreement for two consecutive one-year periods. The two additional one-year periods shall be
on the same tenns and conditions. All services shall be in accordance with the City's covenants
in the Bond Indenture for each Assessment District and Community Facilities District.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
The consultant will be responsible for the following tasks:
1. Formation of Community Facilities Districts (CFDs)
a. Expert Resource: Consultant shall act as City's "expert resource," and be
available to answer questions and advise the City on issues regarding the
formation of any CFDs.
b. Kickoff Meeting: Consultant shall meet with City staff, legal counsel,
property owners, developers, and other interested parties as needed to:
. Establish lines of communication.
. Clarify the specific project goals and criteria that will meet the city's
preference.
. Identify and resolve any special circumstances that may be involved in
the formation of the CFD.
. Develop project schedules to meet legal requirements and provide for
effective interaction of all involved parties.
. Establish meeting dates consistent with schedule to achieve project
milestones.
c. Meeting Attendance: Consultant shall attend all CFD-related meetings, City
Council meetings and also participate in conference calls, as requested by the
City.
d. Consultant Coordination: Consultant will provide all documentation and
infonnation to other City consultants as necessary.
e. Policy Review: Consultant shall review policies and procedures that have
been established by the City. The consultant shall comply with all City
policies and procedures.
f. Document Sharing: Consultant shall provide all documentation needed and
any assistance as requested by the City to the Internal Revenue Service (IRS)
or other entity as necessary.
g. Formation of Maintenance and Infrastructure (Bonded) Districts: Consultant
shall provide the necessary services required for the fonnation of any
Maintenance and Infrastructure (Bonded) Districts within the City of Chula
Vista. These services can include, but are not limited to:
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. Conducting any preliminary analysis
. Acting as the interface between the developer(s) and the City
. Tasks involved with district Resolution of Intention, Resolution of
Formation, District Bond Sale Agreements and the AcquisitionlFinancing
Agreement
h. Annexation to Preserve Maintenance District: Consultant shall provide the
necessary services required to annex any areas into the Preserve Maintenance
District (CFD No. 97-2).
11. Community Facilities Districts (CFDs) Administration
a. Expert Resource: First and foremost, Consultant shall act as the City's
"expert resource," and shall be available to answer questions and advise the
City on particular issues involving the CFDs.
b. Data Collection: Consultant shall gather and review data pertinent to the
administration of the CFDs. Data will be obtained from various sources such
as assessor's parcel maps, building permits and County Assessor information
as determined to be necessary based on the requirements of the Rate and
Method of Apportionment for each CFD (hereinafter "Rate and Method of
Apportionment"). Consultant will maintain and periodically update a
database of all parcels within the districts and relevant parcel information.
c. Administrative Cost Recovery: Consultant shall identifY all costs associated
with the adm inistration of the CFOs and recover those costs through the levy
process as outlined in 1j533l7(e) and 1j53340 of the Government Code of the
State of California. Such costs may include, but are not limited to: bank fees,
legal fees, County tax collection fees, and all costs and expenses of the public
agency and its consultants related to district administration.
d. Fund Analysis: Consultant shall determine the Cash and Equivalents balance
requirements, acquire the current Cash and Equivalents balances and make
recommendations to keep the flow of funds and fund balances in compliance
with the bond documents. Fund transfers might include the transfer of
available surplus fimds to be used as levy credits or the transfer of reserve
funds to the redemption fund upon the prepayment of assessments. Cash
flow analysis will be performed to determine any levy shortfall or surplus
collections.
e. Special Tax Requirement: Consultant shall calculate the annual Special Tax
Requirement (hereinafter "Special Tax" or "Special Taxes") that will include
all necessary components as outlined in the Rate and Method of
Apportionment, such as principal and interest due, administrative expenses,
collection for direct financing of services or facilities, and a fund credit or
replenishment as determined from analysis of the district funds.
f. Levy Calculation: Consultant shall calculate the annual special tax levy for
each parcel within the CFDs following the guidelines established in the Rate
and Method of Apportionment.
g. Quality Control: Consultant shall perform cross-reference tests looking at the
various data sources, land use codes, and other pertinent information to
ensure the best and most accurate levy application.
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h. Prior to June 30th of each year this agreement is in effect, Consultant shall
provide the City with Special Tax for each district, and each billing category
within said district. Preceding submittal to the County, Consultant shall
provide the City a computer disk or other mutually agreed upon format,
which will include the district number, parcel number, and maximum Special
Tax on each parcel- in a fonnat which will be acceptable to the City.
I. Meeting Attendance: Consultant shall attend any district-related City
Council/Board meeting related to district administration, as requested by the
City.
J. Special Tax Levy Submittal: Consultant shall submit all Special Tax Levies to
the County Auditor Controller in the required format and medium (i.e. tape,
diskette). Special Tax Levies rejected by the County Auditor Controller will
be promptly researched and resubmitted for collection on the same County
Tax Roll. Any parcels that are not submitted to the County for collection will
be invoiced directly to the parcel owner, with payment directed to the City.
k. Special Tax Levy Report: Consultant shall provide an annual Special Tax
Levy Report. This report will include a parcel listing with levy amounts and
other parcel information, the details of the annual Special Tax Requirement,
current delinquency information, fund analysis, administrative expenses to be
recovered, status of the project and current issues affecting the districts.
I. Delinquency Monitoring: Consultant shall provide a comprehensive list of
delinquencies after each special tax installment becomes due. The
delinquency report will provide the district's overall delinquency percentage
as well as a detailed list of each delinquent parcel, with the name and address
of the delinquent parcel owner, the delinquent amount and penalties.
m. Backup Special Tax: Consultant shall calculate a Backup or Extraordinary
Special Tax and determine if payment of the Backup or Extraordinary Special
Tax is required for CFDs 97-3,98-3,99-1,2000-1,2001-,2001-2 and other
new CFDs, as requested by the City. This shall be calculated using
infonnation obtained from approved maps and building permits over the past
year and compared to the tables provided in the Rate and Method of
Apportionment for each CFD to determine if there is any loss in units or
residential floor area. If the Extraordinary Special Tax is required,
Consultant shall provide a list of parcels and amounts owed. For CFD 98-3,
the Extraordinary Special Tax shall be calculated and included in the billing
in accordance with the Rate and Method of Apportionment.
n. Prepayment Calculations: Consultant shall provide special tax prepayment
calculations to interested parties. The party requesting the calculation shall
pay the fee of any prepayment calculations.
o. Bond Calls: Consultant shall prepare the spread of principal to be called
within maturities for all bond calls and coordinate the call with the Paying
Agentffrustee.
p. Release of Liens: Consultant shall prepare and file all documents required to
release the liens of parcels that have prepaid the special ta:'( where the
districts have matured.
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6-27
q. CDIAC Reporting: Consultant shall perform all necessary reporting to the
California Debt and Investment Advisory Commission as required by
953359.5(b) and 953359.5(c) of the Government Code of the State of
California.
r. Notice of Special Tax Disclosure: Consultant shall provide Notice of Special
Tax Disclosure notices to requesting parties as required by 953340.2 and
953341.5 of the Government Code of the State of California. The fee of any
Notice of Special Tax shall be billed to the party requesting the disclosure
form.
s. Toll-Free Phone Number: Consultant will provide a toll-free phone number
for use by the City, other interested parties and all property owners.
Consultant's staff shall be available to answer questions regarding the
districts and ongoing collection of the special tax during normal business
hours (Mon.-Fri. 8:00am to 5:00pm). Bilingual staff shall be available for
Spanish-speaking property owners.
t. Consultant Coordination: Consultant will provide all documentation and
information to other City consultants as necessary throughout the year.
Ill. 1913 and 1915 Act Assessment District Administration Services
a. Expert Resource: First and foremost, Consultant shall act as the City's
"expert resource," and shall be available to answer questions and advise the
City on particular issues involving Assessment Districts.
b. Data Collection: Consultant shall gather and review data relevant to the
administration of the districts. Data shall be obtained from various sources,
including, but not limited to, City records, Assessor's parcel maps, and
County Assessor information. A database containing said information for
each of the Assessment Districts shall be created by Consultant.
c. Policy Review: Consultant shall review policies and procedures that have
been established by the Agency for compliance with governing documents
and law. These policies shall be incorporated into Consultant's service to the
City.
d. Cost Recovery: Consultant shall identify all costs associated with the
administration of the Assessment Districts and recover those costs through
the levy process as outlined in 98682 and 98682.1 of the California Streets
and Highways Code. These costs may include, but not be limited to
Registrar/TransferlPaying Agent fees, Arbitrage Rebate calculation fees,
bank fees, and expenses of the City and its consultants related to the
administration of the districts.
e. Fund Analysis: Consultant shall determine the balance requirements and
acquire the current cash balances for the districts. Consultant shall make
recommendations to ensure that the flow of funds and fund balances are in
compliance with bond documents. Cash flow analysis shall also be performed
to determine any levy shortfall or surplus.
f. Annual Assessment Levy: Consultant shall calculate the annual assessment
levy for each parcel in each of the districts and submit the amount for each
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parcel to the County in the format and medium (i.e. tape, diskette) required
by the County Auditor-Controller.
g. Quality Control: Consultant shall perform cross-reference tests looking at the
various data sources, land use codes, and other pertinent information to
ensure the best and most accurate levy application.
h. Resubmission of Rejects: Consultant shall research the status of any parcels
rejected by the County Auditor-Controller, and resubmit corrected data for
collection on the same County Tax Roll. Any parcels that are not accepted
by the County for collection shall be invoiced directly, with payment directed
to the City.
I. Maintain Assessment District Data: Consultant shall annually track all parcel
changes to ensure that all changes are documented. Historical parcel change
and assessment apportionment data shall be maintained by Consultant.
J. Annual Report: Consultant shall provide a comprehensive Annual
Assessment District Report that shows a detail listing of the amounts
submitted to the levy or directly billed for collection, details of delinquent
assessments, fund analysis, paid off parcels and release of liens, all bond call
activity, and assessed valuation information.
k. Delinquency monitoring: Consultant shall provide the City with a
comprehensive list of delinquencies after each installment becomes due. This
report shall show delinquency percentage as well as a detailed list of each
delinquent parcel, with the name and address of the delinquent parcel owner,
the delinquent amount and penalties.
I. Prepayment Calculationl Amortization Schedule: Consultant shall provide
assessment prepayment calculations and amortization schedules to interested
parties. The requester shall pay the cost of this service; however, there shall
be no charge to the City or property owners.
m. Bond Calls: Consultant shall prepare the spread of principal to be called
within maturities for all bond calls and coordinate the call with the Paying
Agent/Trustee.
n. Release of Liens: Consultant shall prepare and file all documents required to
release the liens of parcels that have prepaid the assessment.
o. Notice of Special Assessment: Consultant shall provide a "Notice of Special
Assessment" disclosure notice to requesting parties required by 953754 ofthe
Government Code of the State of California. The fee of any Notice of
Special Tax shall be paid by the party requesting the disclosure notice.
p. Toll-Free Phone Number: Consultant shall provide a toll-free phone number
for use by the City, other interested parties and all property owners.
Consultant's staff shall be available to answer questions regarding the
formation and ongoing collection of assessments for the districts during
normal business hours (Mon.-Fri. 8:00am to 5:00pm). Bilingual staff shall be
available for Spanish-speaking property owners.
q. County Assessor Reporting: Consultant shall work with the County Assessor
to aid in complying with the requirements of Revenue & Taxation Code
Section 163. This includes providing data such as parcel number, original
assessment and current principal balance to the County Assessor.
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r. Consultant Coordination: Consultant shall provide all documentation and
information to other City consultants as necessary throughout the year.
IV. Open Space District TaJC Roll Billing
a. Expert Resource: First and foremost, Consultant shall act as the City's
"expert resource," and shall be available to answer questions and offer advice
on particular issues involving the Open Space Districts.
b. Data Gathering: Consultant shall gather and review data pertinent to the
calculation and billing of the Open Space District and apply the formula,
created during district formation, to determine each parcel's assessment
(hereinafter "assessment formula"). Data shall be obtained from various
sources, including, but not limited to, the City, assessor parcel maps and
County Assessor Information.
c. Quality Control: Consultant shall perform cross-reference tests looking at the
various data sources, land use codes, and other pertinent information to
ensure the best and most accurate levy application.
d. Database Maintenance: Consultant shall maintain and periodically update a
database of all parcels within each district and relevant parcel information.
e. Levy Calculation: Consultant Consultant shall calculate the annual levy for
each parcel within the district following the guidelines established by the
assessment formula.
f. Prior to June 30th of each year this Agreement is in effect, Consultant shall
provide the City with assessment rates for each district, and each billing
category within said district. Preceding submittal to the County, Consultant
shall provide to the City a computer disk or other mutually agreed upon
media, which includes the district number, parcel number, and maximum
assessment on each parcel in a format acceptable to the City.
g. County Submittal: Consultant shall submit the levy to the County Auditor
Controller in the required electronic format. Levies rejected by the County
Auditor Controller shall be researched and resubmitted for collection on the
same County Ta:'( Roll. Any parcels that are not submitted to the County for
collection shall be invoiced with payment to be directed to the City.
h. Reporting: Consultant shall provide an annual Open District Levy Report.
The report shall include a parcel listing with levy amounts. Parcel and levy
data can be provided via electronic file or CD ROM.
I. Toll-Free Phone Number: Consultant shall provide a toll-free phone number
for use by the City and property owners. Consultant staff shall be available
to answer questions regarding the formation and ongoing collection of
assessments for the districts during normal business hours (Mon.-Fri. 8:00am
to 5:00pm). Bilingual staff shall be available to assist Spanish-speaking
property owners.
v. D-Fast@ Software Services
a. D-Fast Online: To complement the administration of the City's districts,
Consultant shall provide city Staff, up to 10 usemames, access to D-Fast
Online. D-Fast@ is a state-of-the-art proprietary software program
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specifically designed for the administration, management, billing, and
tracking tasks of Special Tax Districts.
b. Web Interface: Consultant shall provide programming support to the City to
create an interface between the City's website and parcel data within D-
Fast@ for public access.
VI. Apportionments
Consultant shall provide Section Special Districts apportionment services as
delineated in Section 8730 of the Streets and Highways Code. The Code states
that when a parcel of land upon which there is an unpaid assessment divides, the
original assessment must be segregated and apportioned in accordance with the
benefits to the several parties of the original lot. The Consultant shall apportion
the liens among the newly created parcels as if such a subdivision had existed at
the time of the confirmation of the District and file documents to effectuate a
segregation with the County Tax Auditor after the City reviews and authorizes
such. Specifically, the Consultant shall perform the following:
a. Segregation: Consultant shall apportion the special assessment according to
the method described in the engineer's report.
b. Notice of Apportionment: Consultant shall prepare a notice of apportionment
and send it via certified mail to the issuing underwriter, as required.
c. Assessment Diagram: Consultant shall prepare an amended assessment
diagram and notice. The diagram and notice shall be filed and recorded with
the County Recorder.
d. Amortization Schedule: Consultant shall prepare an amortization schedule for
each newly created assessment type.
e. Apportionment Report: Consultant shall prepare and submit to the City an
Apportionment Report showing the finalized apportionment and the amended
assessment diagram.
f. Optional- Application Fonns: Ifrequested by the City, Consultant shall also
provide apportionment application forms and instructions to the City's
Engineering representative for inclusion as ~ condition of approval for
subdivision within an assessment district.
g. In the event proceedings are undertaken under Division 10, Part 10 of the
California Streets and Highways Code, the following additional items shall
be prepared:
. Resolutions: Consultant shall prepare the required City Council
resolutions to order the amended assessment, the amended assessment
diagram, notices to the property owner, and fix the amount of costs to
perform the apportionment.
. Public Meetings: Consultant shall be available to attend any public
meetings required to complete the apportionment.
h. Consultant Coordination: Consultant shall provide all documentation and
information to other City consultants as necessary throughout the year.
vii. Delinquency Management
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a. Delinquency Reports: Consultant shall provide the City with an updated list
of delinquencies prior to sending any of the letters listed in section (8.A.v.).
This report shall also detail each district's percentage of delinquencies, as
well as a detailed list of each delinquent parcel.
b. Reminder Letter: At the City's direction, send a reminder letter (the form of
which shall be approved by the City) to the property owner of each
delinquent parcel for the December 10th installment. The purpose of the
letter is to inform and educate the property owner of their obligation to pay
assessments.
c. Demand Letter: At the City's direction, send a demand letter (the form of
which shall be approved by the City) to the property owner of each
delinquent parcel for the April 10th installment. This letter shall be mailed to
any property owner who remains delinquent for both installments or who is
delinquent after April loth only. The purpose of this letter is to further
educate the property owner and advise them of potential foreclosure.
d. Foreclosure Letter: Upon authorization from the City, Consultant shall send a
final twenty-one (21 )-day delinquency foreclosure letter to each delinquent
property owner via certified mail. This type of letter is typically sent after the
installments for a parcel have been removed from the tax roll. The letter
delineates what amount must be paid directly to the City to forestall the
turnover of documents to the foreclosure attorney.
e. Tax Roll Removal: Consultant shall provide and file (if necessary) the
information required to remove parcels from the tax roll. Consultant shall
work with the County Auditor-Controller to verify the removal. This step is
in preparation of turning the parcels over for foreclosure. Once removed
from the tax roll, each property owner shall receive one final foreclosure
letter indicating the amount due and payment instruction.
f. At the City's discretion, Consultant may be ordered to offer payment plans to
property owners in lieu of turning parcels over to the City's foreclosure
counsel.
g. Subsequent Foreclosure Services: Once a decision to foreclose has been
made by City, Consultant shall prepare and deliver all information to the
City's foreclosure counsel. Consultant shall also continue to supply the
City's counsel with additional information throughout the foreclosure
process. Consultant shall continue to respond to property owner (unless
ordered not to) and City staff phone calls regarding the status of all cases, and
shall coordinate and audit status reports on a bi-monthly basis from the City's
foreclosure counsel. For those parcels sent to foreclosure, Consultant shall
assist foreclosure counsel to initiate and prosecute judicial foreclosure
proceedings in compliance with bond foreclosure covenants.
h. Toll-Free Phone Number: Consultant shall provide a toll-free phone number
for use by the City, other interested parties and all property owners.
Consultant's staff shall be available to answer questions regarding the
formation and ongoing collection of assessments/special taxes for the districts
during normal business hours (Mon.-Fri. 8:00am to 5:00pm). Bilingual staff
shall be made available for Spanish-speaking property owners.
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i. Consultant Coordination: Consultant shall provide all documentation and
information to other City consultants as necessary throughout the year.
VIII. Bond Issue Continuing Disclosures
In accordance with the Disclosure Certificate of a bond issue, Consultant shall
assist in coplicance with the annual disclosure requirement of the SEC Continuing
Disclosure Rule lSc2-12. Specifically, Consultant shall perform the following:
a. Document Review: Consultant shall review pertinent documents related to
the bond issue, including the Official Statement and Disclosure Certificate.
Consultant shall identify material such as the Consolidated Annual Financial
Report and/or other operating data that the City has agreed to provide in the
Disclosure Certificate.
b. Data Collection: Consultant shall collect Collect the annual financial data and
other information required to be included in the Annual Information
Statement(s) directly from trustees, fiscal agents, State and County agencies
and others, as applicable.
c. Report Preparation: Consultant shall prepare the Annual Disclosure Report
required in the Disclosure Certificate.
d. Annual Dissemination: Consultant shall disseminate the Disclosure Reports
to the Electronic Municipal Market Access (EMMA), the Municipal
Securities Rulemaking Board (MSRB) and appropriate State Information
Depository (SID), and any other party as directed by the City.
e. Significant Events: Consultant shall prepare and disseminate a "Notice of
Significant Events", as listed on the Continuing Disclosure Certificate, to the
appropriate SID and to EMMA or the MSRB. Consultant's actions pursuant
to this subsection should commence upon notification by the City of the
occurrence of any of the events, if deemed by the City to be material.
Typical significant events may include, but are not limited to:
. Principal and interest payment delinquencies
. Non-payment related defaults
. Unscheduled draws on debt service reserves reflecting financial
difficulties
. Unscheduled draws on credit enhancements reflecting financial
difficulties
. Substitution of credit or liquidity providers, or their failure to perform
. Adverse tax opinions or events affecting the tax-exempt status of the
security
. Modifications to the rights of security holders
. Bond calls
. Defeasances
. Release, substitution, or sale of property secunng repayment of the
securities
. Rating changes
f. Consultant Coordination: Consultant shall provide all documentation and
information to other City consultants as necessary throughout the year.
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ix. Optional Items
If requested by the City, the following services shall be provided:
a. Proposition 218 Compliance
. Consultant shall work with the City, as needed, given the requirements of
Proposition 218. Consultant understands that each City has different
requirements and resources to complete the necessary tasks for the
assessment balloting procedures. Therefore, an individually tailored
approach to Proposition 218 Compliance may be required.
b. District Closeout: Consultant shall administer the districts under the City's
direction, taking into account the final-year maturity. Thereafter, Consultant
shall perform the following:
. Perform a complete analysis of all funds for each Assessment District in
accordance with Municipal Improvement Act 1913 and the Improvement
Act of 1915.
. Prepare a detailed Analysis Report for each district projecting revenue
ancl expenditures resulting in a surplus amount. Projected revenue may
include, but is not limited to, investment earnings and assessment levies.
Projected expenditures may include, but is not limited to, debt service
payments, arbitrage rebate payments, administrative costs and project
maintenance costs.
. Determine if arbitrage rebate calculations have been performed and funds
have been cleared for disbursement by the City Finance Depat1ment.
. Determine the best use of the surplus amount in accordance with
applicable laws.
. Prepare a Certificate of Project Completion and Use of Funds for Project
Maintenance Letter, to be signed by the Public Works Director.
. Prepare a City Council Resolution Declaring Surplus, Determining Use
and Approving the Analysis Report.
. Prepare documents and coordinate the advanced maturity of bonds as
required.
. Prepare a detailed report for the processing of refunds to property owners
by the City.
. Review procedures with legal counsel and City staff as required.
. Prepare a detailed delinquency report and consider the delinquencies in
the analysis of funds and refunds.
. Coordinate the implementation of a policy for the collection of
delinquencies and timeline for completion.
c. Processing of Bond Tenders (1915 Act Bonds and CFD Bonds)
. Expert Resource: First and foremost, Consultant shall act as the city's
"expert resource," and is available to answer questions and advise the
City on particular issues involving the use of Bond Tenders.
. Kick-off Meeting: Consultant shall meet via telephone or in person with
City staff, legal counsel and other interested parties to discuss details and
implementation of a bond tender policy.
. Implementation of Bond Tender Policy: Consultant shall implement the
City's existing bond tender administrative policy. If requested by City,
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Consultant shall review and make modifications to this existing policy or
develop and implement a new policy. As this requires significant
additional work, hourly rates shall apply.
. Primary Contact: Consultant shall serve as the primary and direct contact
for property owners, bondholders, and other interested parties.
Consultant shall provide instructions and guidelines on the bond tender
process.
. Letters of Intent to Tender: Consultant shall review and reply to Letters of
Intent to Tender with a formal Letter ofInstructions to Tender, and shall
provide updates to the Letter of Instructions based on amount change
triggers.
. Facilitator of Bond Tenders: Consultant shall act as facilitator of bond
tenders, and shall provide the following:
1. Analysis of bond tendered and application of bonds tendered as
payment of delinquencies, current year installments, and
prepayment of the future ofthe lien.
2. Provide documentation of the tender to property owners, trustee,
fiscal agent, paying agent, City/Agency and other professionals as
required.
3. Update of debt service schedules and mandatory sinking fund
schedules, as required.
4. Calculation and request payment of any amounts due in cash in
addition to the bonds tendered.
. Data Corrections: Consultant shall perform County Tax Roll corrections,
future annual levy, and future amortization ( annual levies) corrections
resulting from the bond tender.
. Toll-Free Phone Number: Consultant shall provide a toll-free phone
number for use by the City, other interested parties and all property
owners during normal business hours (Mon.-Fri. 8:00am to 5:00pm).
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. I: Prior to June 30th of each year this Agreement is in effect, Consultant
shall provide the City with Assessment rates for each Community Facilities, Assessment
and Open Space.
Deliverable No.2: On August I st of each year, submit a computer file of annual
assessments and/or collections to the County Auditor-Controller.
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Deliverable No.3: On or before August 10th of each year, final corrections to the tax roll
shall be submitted to the County Auditor-Controller.
Deliverable No.4: On or before October 15th of each year, submit to the City each tlnal
Special Tax District report with corrected printouts and computer files.
Deliverable No.5: On September 30th of each year, submit to the City a copy of each
Amended Assessment Diagram.
D. Date for completion of all Consultant services:
The date when all services assigned to the consultant have been resolved, or upon
notification from City of contract termination.
9. Materials Required to be Supplied by City to Consultant:
A. Access to the City's computerized permit tracking system.
B. Copies of Site Development plans (for commercial and multiple family properties), Final
Maps which have been approved prior to March 1 st of the previous fiscal year, and
building permit information.
C. After first fiscal year of formation) Copies of tax reapportionment forms completed by
City for parcels which have been segregated by the County during the previous fiscal
year.
D. Budget Information.
E. List of Special Tax Districts the City would like Consultant to administer for each Fiscal
Year.
F. Copy of Final Engineer's Report and Final Official Statement for each Special District.
G. Listing of parcels that have paid off their assessments (partially or fully) since the
districts were formed.
H. List of the bonds that have been called for each Special District since the bonds were
issued. The list should include the amount of bonds called and their corresponding Fiscal
Year for each Special District.
1. List of parcels requiring apportionment services for each Assessment District for each
Fiscal Year.
10. Compensation:
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant as herein required, City shall
pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set
forth below:
Single Fixed Fee Amount:
, payable as follows:
Milestone or Event or Deliverable
Amount or Percent of Fixed Fee
( ) 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
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each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans that must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end of
the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City, or
such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this agreement to
a time and materials basis of payment.
B. ( ) Phased Fixed Fee Arrangement.
for the performance of each phase or portion of the Defined Services by Consultant as are
separately identified below, City shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not
commence Services under any Phase, and shall not be entitled to the compensation for a Phase,
unless City shall have issued a notice to proceed to Consultant as to said Phase.
Phase
l.
2.
3.
Fee for Said Phase
$
$
$
( ) I. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans that must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end of
the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City, or
such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
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The practice of making interim monthly advances shall not convert this agreement to
a time and materials basis of payment.
c. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as herein required, City shall pay
Consultant for the productive hours of time spent by Consultant in the performance of said
Services, at the rates or amounts set forth in the Rate Schedule herein below according to the
following terms and conditions:
(I) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Consultant oftime and materials in excess of said
Maximum Compensation amount, Consultant agrees that Consultant will perform all of
the Defined Services herein required of Consultant for $
including all Materials, and other "reimbursables" ("Maximum Compensation").
(2) ( ) 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. Nothing herein shall preclude Consultant from providing additional
Services at Consultant's own cost and expense. See Exhibit B for wage rates.
( ) Hourly rates may increase by 6% for services rendered after [ month], 20_, if delay
in providing services is caused by City.
D. (X)Other
For performance of the Defined Services by Consultant as herein required, City shall pay
according to the following schedules/rates:
. Formation of Community Facilities Districts - $15,000 - $80,000
The City Manager in consultation with the Consultant will determine, the exact amount
(within the above range) to be paid for each Community Facilities District Formation
based on thefollowingfactors:
A. Community Facilities Districts (Bonded):
l. Potential bond sizing
2. Number of bond series
3. Developed or developing special tax area
4. Land use densities
5. Number of Property owners
6. Property owner or registered voter election
7. Timing and list of potential improvements funded
8. Timeline for project completion
B. Community Facilities Districts (Non-Bonded)
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I. Potential annual special tax revenue required
2. Developed or developing special tax area
3. Land use densities
4. Number of property owners
5. Property owner or registered voter election
6. Timing and list of potential services funded
7. Timeline for project completion
The fee for annexations into existing Community Facilities Districts would be determined
on a proportional basis as it relates to the reduction of the fit/I scope in Community
Facilities Districtformation services required.
. Annual Administration Services - The following fees are annual fees for the
administration of Special Districts.
A. Community Facilities Districts:
I. Bonded Districts
a. Districts with parcel counts less than 500 $4,000
b. Districts with parcel counts 500 to 999 $4,500
c. Districts with parcel counts 1,000 to 1,749 $5,000
d. Districts with parcel counts 1,750 to 2,499 $5,500
e. Districts with parcel counts 2,500 to 2,999 $6,000
f. Districts with parcel counts 3,000 to 5,000 $6,500
g. Districts with parcel counts over 5,000 $7,500
Note: Subsequent series of bonds on the same parcels under the same RlidA will
be billed at 50% of the original price.
2. Non-Bonded Districts
a. Districts with parcel counts less than 500 $2,000
b. Districts with parcel counts 500 to 999 $2,500
c. Districts with parcel counts 1,000 to 1,749 $3,000
d. Districts with parcel counts 1,750 to 2,499 $3,500
e. Districts with parcel counts 2,500 to 2,999 $4,000
f. Districts with parcel counts 3,000 to 5,000 $5,000
g. Districts with parcel counts over 5,000 $9,500
B. 1915 Act Assessment Districts
1. Districts with parcel counts less than 500 $1,750
2. Districts with parcel counts 500 to 999 $2,500
3. Districts with parcel counts 1,000 to 3,000 $3,500
4. Districts with parcel counts over 3,000 $5,000
C. Open Space Districts
1. Per district/zone $700
.
D-Fast@ Software Services
A. D-Fast@ Online
B. Web interface
$500
Hourly (not to exceed $5,000 without written amendment)
.
Apportionment Services
A. Annual Per District Method
$750 per district plus $35 per parcel
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Alternatively, at the City's discretion, Consultant can provide apportionment services as
provided below:
B. Application Method Part 10.5
I. Apportionment Fee (Four parcels or less):
2. Apportionment Fee (Five or more parcels):
3. Recording Fee (each)
c. Hearing Method Part 10
I. Resolutions
2. Meeting Attendance:
$950
$1,800 pius $35 per parcel
$40
$300
hourly, plus travel costs (mileage and meals)
. Delinquency Monitoring Services
A. Annual Base cost per district
B. Reminder Letters
C. Demand Letters
D. Foreclosure Letters
E. Payment Plan Administration
F. Tax Roll Removal
G. Subsequent Foreclosure Fees
No Charge
*$10
*$15
$30
$150
**$50
***$75
All fees are based on a per parcel/per district basis.
* This fee will be recovered as part of the next levy.
** This fee includes filing of "Notice of Intent to Remove Delinquent Installments"
but does not include County fees for removal from the tax roll.
*** This fee is per parcel/per district district/per year from the initiation of the
foreclosure.
Note: At the option of the City, Consultant will set up historical delinquency information
into our software at our hourly rates or as negotiated on a per district basis.
. Continuing Disclosure: The Annual Report Fee is based on the complexity of the
disclosure requirements. Consultant will provide the services for the Special District
bonds existing at the date of this agreement for the fees as listed below. Additional issues
may be added at similar fees.
A. Annual Report Fee
1. Community Facilities District Annual Report (per report) $1,250
2. Revenue Bond Annual Report (per report) $1,500
3. Ta:x Allocation Bond Annual Report (per report) $1,000
4. Certificate of Participation Annual Report (per report) $750
5. Significant Event Notification hourly or $100 per event
B. Dissemination Services
i. Report Dissemination (per recipient) $25
2. Significant Event Dissemination (per recipient) $25
3. Posting to CPO and NBS website No Charge
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. Optional Services: At the discretion of the City, Consultant shall provide those services
related to annual use, increases, closeouts, refunding, etc. Fees for those services will be
determined by the City and Consultant as fixed-fees (to be negotiated later) or at
Consultant's hourly rates. The City may choose which method (negotiated fixed-fee or
hourly). The hourly rates are shown below.
Rate Schedule
Consultant Em 10 ee Title
Hour! Rate
$190
$150
$140
$130
$100
$55
Director
Engineer
Senior Consultant/Programmer
Consultant
Analyst
Clerical/Support
Terms: The annual recurring base fees will be billed during the year, at the end of each
month. Other fees shall be invoiced upon completion of the project. Payment shall be made
within 30 days of submittal of an invoice. Cost of living increases as measured by the
Southern California Counties CPI will be applied each year starting October 20 II, to the
services listed in this Paragraph (ll.D).
. The following fees are noted herein, and paid by others (not fees paid by City):
A. CFD Prepayment Calculations (per request) $150
(Fee based on complexity of calculations. Party requesting calculations shall pay)
B. Notice of Special Tax (per notice) $10
(The Fee of any Notice of Special Tax shall be billed to the party requesting the
disclosure form)
C. 1915 Act Prepayment Calculations (each) $35
(Party requesting calculations shall pay)
D. Notice of Special Assessment (per notice) $10
(The fee of any Notice of Assessment shall be billed to the party requesting the
disclosure form)
II. Materials Reimbursement Arrangement
F or the cost of out of pocket expenses incurred by Consultant in the performance of services
herein required, City shall pay Consultant at the rates or amounts set forth below:
( ) None, the compensation includes all costs.
: @ $0.10 per page
: @ current IRS mileage rate
: Only charged for large
Cost or Rate
$
$ actual cost
$ actual cost
$ actual cost
() Reports, not to exceed $
(X) Copies, not to exceed $
(X) Travel, not to exceed $
(X) Printing, not to exceed $
outsourced projects.
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(X) Postage, not to exceed $
(X) Delivery, not to exceed $
() Outside Services:
(X) Other Actual Identifiable Direct Costs:
Telephone Charges, not to exceed $
Charges for data. maps, and recording fees. not to exceed $
$ actual cost
$ actual cost
$
$
$ actual cost
$ actual cost
12. Contract Administrators:
City:
Nadine Mandery, Treasury Manager
Merce Leclair, Acting Principal Management Assistant
Consultant:
Mike Rentner, President & CEO
13. Liquidated Damages Rate:
( ) $
( ) Other:
per day.
14, Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest
Code (Chula Vista Municipal Code chapter 2,02):
(X) Not Applicable, Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. I, Investments, sources of income and business interests,
( ) Category No, 2, Interests in real property.
( ) Category No.3. Investments, business posItIons, interests in real property, and
sources of income subject to the regulatory, permit or licensing authority of the
department administering this Agreement
( ) Category No.4, Investments and business positions in business entities and sources of
income that engage in land development, construction or the acquisition or sale of
real property,
( ) Category No.5. Investments and business positions in business entities and sources
of income that, within the past two years, have contracted with the City of Chula
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Vista or the City's Redevelopment Agency to provide services, supplies, materials,
machinery or equipment.
( ) Category No.6. Investments and business positions in business entities and sources of
income that, within the past two years, have contracted with the department
administering this Agreement to provide services, supplies, materials, machinery or
equipment.
( ) List "Consultant Associates" interests in real property within 2 radial miles of Project
Property, if any:
IS. ( ) Consultant is Real Estate Broker and/or Salesman
16. Permitted Subconsultants: None
17. Bill Processing:
A. Consultant's Billing to be submitted for the following period oftime:
( ) Monthly
( ) Quarter! y
(X) Other: See Section 10. Part D "Terms"
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
(X) End of the Month
( ) Other:
C. City's Account Number: Appropriate Communitv Facilities Districts, Assessment
Districts. and Open Space District accounts.
18. Security for Performance
( ) Performance Bond, $
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( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant sooner, the City shall be entitled
to retain, at their option, either the following "Retention Percentage" or "Retention
Amount" until the City determines that the Retention Release Event, listed below, has
occurred:
( ) Retention Percentage:
( ) Retention Amount: $
%
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
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6-44
RESOLUTION 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AWARDING A THREE-YEAR CONTRACT,
WITH TWO ONE-YEAR OPTIONS, TO NBS GOVERNMENT
FINANCE GROUP, DBA NBS, FOR PERFORMANCE OF
SPECIAL DISTRICT FORMATION, ADMINISTRATION,
APPORTIONMENT, DELINQUENCY MANAGEMENT,
CONTINUING DISCLOSURE AND OTHER SERVICES FOR
ASSESSMENT DISTRICTS (ADS), COMMUNITY FACILITIES
(MELLO-ROOS) DISTRICTS (CFDS) AND OPEN SPACE
DISTRICTS (OSDS)
WHEREAS, the City has formed Assessment Districts to provide funding for benefiting
properties and infrastructure under the Municipal Improvement Act of 1913; and
WHEREAS, the City has formed, or is in the process of forming, Mello-Roos
Community Facilities Districts to provide funding for the construction of infrastructure or for the
maintenance of open space areas in accordance with the Community Facilities Act of 1982; and
WHEREAS, the City has formed twenty-four Open Space Districts to provide funding
for perpetual maintenance of common open space areas; and
WHEREAS, the City requires a consultant for the performance of formation,
administration, apportionment, delinquency management, continuing disclosure and other
services for the said Districts; and
WHEREAS, the Request for Proposal (RFP) was prepared and advertised, proposals
were received and reviewed, and firms were interviewed and ranked in accordance with City
Policies; and
WHEREAS, NBS Local Government Solutions warrants and represents that they are
experienced and staffed in a manner such that they are and can prepare and deliver the services
required of Consultant to City within the time frames.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista, does hereby approve an agreement with NBS Local Government Solutions for Special
District Formation, Administration, Apportionment, Delinquency Management, Continuing
Disclosure and Other Services, a copy of which shall be kept on file in the Office of the City
Clerk.
Presented by
Richard A. Hopkins
Director of Public Works
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