HomeMy WebLinkAbout2010/05/11 Item 2
CITY COUNCIL
AGENDA STATEMENT
~Y!.f:.. CllY OF
nu CHULA VISTA
Item No.: 1-
Meeting Date: 0<;/11/10
ITEM TITLE:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AUTHORIZING A THREE PARTY AGREEMENT
BETWEEN THE CITY OF CHULA VISTA, AECOM TECHNICAL
SERVICES, INC. AND THE OTAY LAND COMPANY, LLC IN
THE AMOUNT OF FIFTY THOUSAND DOLLARS ($50,000) FOR
CONSULTANT SERVICES RELATED TO THE PREPARATION
OF AN EMPLOYMENT LANDS AND FISCAL IMPACT
ANALYSES ASSOCIATED WITH THE OTAY RANCH
UNIVERSITY VILLAGES GENERAL PLAN AND GENERAL
DEVELOPMENT PLAN AMENDMENT(S), AND AUTHORIZING
THE MAYOR TO EXECUTE SAID AGREEMENT
REVIEWED BY:
DEPUTY ..c;ITY MANAGERlDIRECTOR
SERVIC~ ~
CITY MANAGERr
4/5 TH VOTE REQUIRED
OF DEVELOPMENT
SUBMITTED BY:
YES NO X
SUMMARY
Otay Land Company, LLC (Applicant) has filed General Plan Amendment (GPA) and General
Development Plan Amendment (GDPA) applications for the University and Southern Otay Ranch
Villages Project. An economic and fiscal analysis is necessary in order to make an informed
decision on the proposed GPA and GDPA. The item before the City Council is a contract with
AECOM to provide necessary consultant services for preparation of the studies for an amount not
to exceed $50,000 plus an additional 30% contingency ($15,000) should additional services
become necessary.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that the activity is not a
"Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to
2-1
Page 2, Item No.: 1-
Meeting Date: 0<;/11/10
Section l5060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no
environmental review is required.
RECOMMENDATION:
That the City Council adopt the Resolution.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
R"~kgrollnr1
The City adopted a comprehensive General Plan Update (GPU) in December 2005. As part of
that action, proposed land uses for a portion of Otay Ranch (Villages 8, 9, 10 and a portion of 4
and 7) were not adopted and were placed in a deferred status. This "Deferral Area" boundary is
outlined with dashed lines on Attachment 1. The land uses proposed in the Deferral Area in
2005 consisted of a Research Technology Park (in Village 8 East), higher density and mixed uses
in Village 9, and higher mixed use with low-medium density in Village 8 West.
The University and Southern Otay Ranch Villages project involves proposed amendments to the
City's General Plan and the Otay Ranch General Development Plan within the Deferral Area.
This includes amendments submitted by the Applicant for their ownership in portions of Otay
Ranch Villages 4,7,8 West and 9 (Project) as highlighted on Attachment 1 and amendments on
the remaining property that stem from the University Land Offer Agreements approved by the
City Council in April and May 2008. The Applicant's proposal would result in an increase in
density beyond that specified in the 2005 GPU.
The Deputy City Manager/Director of Development Services has determined that an economic
and fiscal analysis is necessary to ascertain the potential economic and fiscal impacts to the City,
as a result of the proposals compared to the 2005 GPU land uses. Development Services
Department staff does not have the available time or expertise to prepare the needed Employment
Lands Analysis (ELA) and Fiscal Impact Analysis (FIA). Therefore, the City is proposing
entering into a three party agreement for the preparation of the ELA and FIA studies.
r()mmlt~nt Sp.rvlr.f>:~ Sf>:lp.C':tlnn Pr()c.p.~~
In 2008, the City completed a Request for Qualification (RFQ) process for selecting professional
consultants to assist the City on services related to real estate economics and fiscal analysis,
redevelopment policy and implementation, and market and financial feasibility studies, where
needed. A total of eight consultants received the RFQ and the City selected eight firms, including
AECOM/ERA. Subject to City Purchasing Guidelines for hiring consultants, the City is authorized
to enter into an agreement with any of the eight consultants on the list. The certified list is valid
2-2
Page 3, Item No.: Z-
Meeting Date: 0';/11/10
until September 20 II. Pursuant to Chula Vista Municipal Code Section 2.56.110. (E), the City
may select consultant services from a qualified consultant list.
AECOM has been selected because of their expertise in performing economic and fiscal impact
analysis, and their extensive work on the economic and fiscal component of the City's 2005 GPU.
They also worked with the City's Budget and Finance Office to develop a FIA model for all future
FIA's subsequent to the GPo. This model was utilized for other fiscal studies, including the
recently adopted Eastern Urban Center (EUC) FIA.
Staff is recommending that the Council approve the agreement with ABCOM Technical Services,
Inc. for the preparation of the ELA and FIA studies.
Scopp of Work
AECOM will function as the Economic and Fiscal Consultant to the City of Chula Vista under a
three party agreement with the Applicant and the supervision of the City's Deputy City
Manager/Director of Development Services, with costs paid by the Applicant. In brief summary
of the contract scope, the responsibilities of the Economic and Fiscal Consultant will include the
following:
Review of the available project information;
. Review of any past and recent studies and information regarding employment lands
supply and demand in the South Bay and Chula Vista;
Preparation of an updated FIA model;
. Preparation of draft ELA and FIA reports;
Preparation of final ELA and FIA reports based on comments received from staff and
Applicant; and
. Attendance at team meetings and public hearings.
rnntr::1ct P::1ymf':nt
The total cost of the contract for consulting services is $50,000 with an additional 30%
contingency ($15,000) for additional services to cover unforeseen issues that may arise during
preparation of the ELA and FIA, if determined necessary by the City's Deputy City
Manager/Director of Development Services. The project Applicant will pay all consultant costs, as
well as reimburse any City staff time associated with preparation of the ELA and FIA reports.
DECISION-MAKER CONFLICTS
Staff has reviewed the property holdings of the City Council members and has found no property
holdings within 500 feet of the boundaries of the property, which is subject to this action.
2-3
2-
Page 4, Item No.:
Meeting Date: 0<:;/11/10
CURRENT YEAR FISCAL IMP ACT:
There will be no resulting impact to the General Fund. The Applicant will fully compensate the
consultant. The applicant will also pay for associated staff costs pursuant to their approved
Processing Agreement and through existing deposit accounts.
ON-GOING FISCAL IMPACT
Approval of the three party agreement will not result in on-going fiscal impacts since the contract
will terminate once all required work is completed by the consultant.
Attachments:
I. Project Boundary Map
2. Three Party Agreement
Prepared by: Stan Donn, Senior Planner, Development Services Department
2-4
J~. (;~W' y"
'. .. (
\. i
-\ I
'\---~
/.-
,
\
\
,
'.
,
\
\
\
\
a0
-. \
II
\
I\L-"~~---c.
\ t---~7/
'. /;/
\ /
\\.. -~~jj/
<.>----"
'.
\
\
j---;:>"
/?~-
\
\
-[-
\ I
/ ..,.' ,I +
..~-\ I..-J
~ \\ C\\\J\3 'II\S\3 nO-"-II,,~' .. -- ~-
\ . 0\ '0\0":' '
\ C\\~ :\: 0\ Sa." ,_-+--_-1
CO~"~ I.J I r-
1-11 ,---U ~1
"'. i '-
-c-I I
I II
I-t~
I
,
\
i
i>
, ~ -------
,
,
I
I ,
i L
-1-('\
I L~._
I--
I
~\If:.
~~--
CITY OF
CHULA VISTA
GPNGDPA Project Area
A
NORTH
Attachment 1
RESOLUTION NO. 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AUTHORIZING A THREE PARTY AGREEMENT BETWEEN
THE CITY OF CHULA VISTA, AECOM TECHNICAL SERVICES, INC.
AND THE OTA Y LAND COMPANY, LLC IN THE AMOUNT OF FIFTY
THOUSAND DOLLARS ($50,000) FOR CONSULTANT SERVICES
RELATED TO THE PREPARATION OF AN EMPLOYMENT LANDS
AND FISCAL IMP ACT ANALYSES ASSOCIATED WITH THE OT A Y
RANCH UNIVERSITY VILLAGES GENERAL PLAN AND GENERAL
DEVELOPMENT PLAN AMENDMENT(S), AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT.
WHEREAS, the Otay Land Company, LLC (Applicant) has deposited or will deposit an
initial sum for the consulting services necessary for the preparation of the Employment Lands
Analysis and Fiscal Impact Analysis for the University and Southern Otay Ranch Villages Project;
and
WHEREAS, it was determined by the Deputy City ManagerlDevelopment Services
Director that staff has neither the available time or expertise to perform the subject work; and
WHEREAS, AECOM Technical Services, Inc. (AECOM) has acquired a unique in-depth
knowledge of Chula Vista General Plan-related economic and fiscal issues through their preparation
of the 2005 General Plan Update Fiscal Analysis and associated baseline studies, and the City's
current Fiscal Impact Analysis model; and
WHEREAS, AECOM's comprehensive familiarity with the Chula Vista General Plan and
General Plan study area, coupled with the knowledge gained through their preparation of the
General Plan Update Fiscal Impact Analysis and City Fiscal Impact Analysis model, makes
AECOM uniquely qualified to serve as the consultant for this project; and
WHEREAS, AECOM is one of eight firms on the City's qualified consultant list for the
preparation of economic and fiscal impact analyses; and
WHEREAS, the consultant warrants and represents that they are experienced and staffed in
a manner such that they can prepare and deliver the services required to City within the timeffames
required all in accordance with the terms and conditions of the subject agreement; and
WHEREAS, the Deputy City Manager/Development Services Director has negotiated the
details of the subject agreement in accordance with applicable procedures pursuant to Chula Vista
Municipal Code Section 2.56.110. (E) and selected AECOM; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity
for compliance with the California Environmental Quality Act (CEQA) and has determined that
1
2-6
the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines;
therefore, pursuant to Section l5060(c)(3) of the State CEQA Guidelines the activity is not
subject to CEQA. Thus, no environmental review is required.
NOW THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista
does hereby approve a Three Party Agreement between the City ofChula Vista, AECOM Technical
Services, Inc. and Otay Land Company LLC, for consulting services related to the preparation of an
Employment Lands Analysis and Fiscal Impact Analysis for the University and Southern Otay
Ranch Villages General Plan Amendment and Otay Ranch General Development Plan Amendment.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said agreement on behalf of the City of Chula Vista.
Presented by
Approved as to form by
Gary Halbert, AICP, PE
Deputy City Manager/
Development Services Director
1iV
2
2-7
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
ld
Dated:
THREE-PARTY AGREEMENT
BETWEEN CITY OF CHULA VISTA
AND
AECOM TECHNICAL SERVICES, INC., AND
OT A Y LAND COMPANY, LLC
2-8
Three-Party Agreement Between
City of Chula Vista,
AECOM Technical Services, Inc. and
Otay Land Company, LLC
For Consulting Work to be Performed with Regard to Applicant's Project
1. Parties.
This Agreement is made as of the reference date set forth in Exhibit A, for the purposes of
reference only, and effective as of the date last executed by the parties hereto, between the City of
Chula Vista ("City") herein, a municipal corporation of the State of California, the person designated
on the attached Exhibit A as "Consultant", AECOM, Technical Services, Inc. (previously known as
Economic Research Associates ("ERA")) whose business form and address are indicated on the
attached Exhibit A, and Otay Land Company, LLC ("OLC") the persons collectively designated on
the attached Exhibit A as "Applicant", whose business form and address are indicated on the attached
Exhibit A, and is made with reference to the following facts:
2. Warranties and Representations.
2.1. Applicant warrants that Applicant is the owner of land ("Property") commonly known
as, or generally located as, described on Exhibit A, Paragraph I, or has an option or other entitlement
to develop said Property.
2.2. Applicant desires to develop the Property with the Project described on Exhibit A,
Paragraph 2, and in that regard, has made application ("Application") with the City for approval of
the plan, map, zone, or other permits ("Entitlements") described on Exhibit A, Paragraph 3.
2.3. In order for the City to process the Application of Applicant, Work of the general nature
and type described in Exhibit A, Paragraph 4, ("Work") will need to be completed.
2.4. City does not presently have the "in-house" staff orresources to process the application
within the time frame requested for review by the Applicant.
2.5. This Agreement proposes an arrangement by which Applicant shall retain, and be liable
for the costs of retaining, Consultant, who shall perform the services required of Consultant by this
Agreement solely to, and under the direction of, the City.
2.6. The Applicant and City have entered into a University and Southern Otay Ranch Villages
Project Staffing and Processing Agreement on June 23, 2009, ("Processing Agreement") for the
retention of professional staff by the City for processing the Entitlements for the Property.
Notwithstanding however, Applicant acknowledges and agrees that the provisions ofthis Agreement
with respect to the payment of the Consultant shall supersede any provisions of the Processing
Agreement pertaining to the payment of services for professional staff.
AECOM-ERAJUniversity Village OLC
May 11.2010
Three-Party Agreement
Page 1
2-9
2.7. On April 15, 2008, the City and Applicant entered into a Land Offer Agreement ("LOA")
which sets forth the terms and conditions for Applicant's conveyance and the City's acceptance of
certain real property described within the LOA.
2.8 Additional facts and circumstances regarding the background for this Agreement are
set forth on Exhibit B.
3. Agreement.
NOW, THEREFORE, for valuable consideration it is mutually agreed to by and between the
City, Consultant, and Applicant as follows:
3.1. Emplovment of Consultant bv Applicants.
Consultant is hereby engaged by the Applicant, not the City, and at Applicant's sole cost and
expense, to perform to, and for the primary benefit of, City, and solely at City's direction, all of the
services described on the attached Exhibit A, Paragraph 4, entitled "General Nature of Consulting
Services," ("General Services"), and in the process of performing and delivering said General
Services, Consultant shall also perform to and for the benefit of City all of the services described in
Exhibit A, Paragraph 5, entitled "Detailed Scope of Work," ("Detailed Services"), and all services
reasonably necessary to accomplish said General Services and Detailed Scope of Work, and shall
deliver such documents required ("Deliverables") herein, all within the time frames herein set forth,
and in particular as set forth in Exhibit A, Paragraph 6, and if none are set forth, within a reasonable
period of time for the diligent execution of Consultant's duties hereunder. Consultant understands
and agrees that time is of the essence for this Agreement.
The Consultant does hereby agree to perform said General and Detailed Services to and for
the primary benefit of the City for the compensation herein fixed to be paid by Applicant.
In delivering the General and Detailed Services hereunder, the Consultant shall do so in a
good, professional manner consistent with that level of care and skill ordinarily exercised by
members of the profession currently practicing under similar conditions and in similar locations, at
its own cost and expense except for the compensation andlorreimbursement, if any, herein promised,
and shall furnish all of the labor, technical, administrative, professional and other personnel, all
supplies and materials, machinery, equipment, printing, vehicles, transportation, office space and
facilities, calculations, and all other means whatsoever, except as herein otherwise expressly
specified to be furnished by the City or Applicant, necessary or proper to perform and complete the
work and provide the Services required of the Consultant.
3.2. Compensation of Consultant.
Applicant shall compensate Consultant for all services rendered by Consultant without regard
to the conclusions reached by the Consultant, and according to the terms and conditions set forth in
Exhibit C adjacent to the governing compensation relationship indicated by a "checkrnark" next to
the appropriate arrangement, by paying said amount to the City, within 30 days of Consultant's
AECOM-ERAlUniversity Village OLC Three-Party Agreement
May 11, 2010 Page 2
2-10
billing, or in accordance with the security deposit provisions of Paragraph 3.3 ofthis Agreement and
Exhibit C, if checked, and upon receipt of such payment by the City, City shall promptly, pay said
amount to the Consultant in accordance with the Bill Processing provisions in Exhibit C, if checked
City is merely acting in the capacity as a conduit for payment, and shall not be liable for the
compensation unless it receives same from Applicant. Applicants shall not make any payments of
compensation or otherwise directly to the Consultant.
3.2.1. Additional Work. If the Applicant, with the concurrence of City, determine
that additional services ("Additional Services") are needed from Consultant of the type Consultant
is qualified to render or reasonably related to the Services Consultant is otherwise required to
provide by this Agreement, the Consultant agrees to provide such additional services on a time and
materials basis paid for by Applicant at the rates set forth in Exhibit C, unless a separate fixed fee is
otherwise agreed upon in writing for said Additional Work between the parties.
3.2.2. In the event that the City shall determine that additional work is required to be
performed above and beyond the scope of work herein provided, City will consult with Applicant
regarding the additional work, and if thereupon the Applicant fails or refuses to arrange and pay for
said Additional Services, the City may, at its option, suspend any further processing of Applicant's
Application at which time the force majeure provisions of the LOA shall be applied until the
Applicant deposits the City's estimate of the costs ofthe additional work which the City determines
is or may be required. Applicant shall pay any and all additional costs for the additional work.
3.2.3. Reductions in Scope ofW ork. City may independently, or upon request from
Consultant, from time to time reduce the Services to be performed by the Consultant under this
Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the
purpose of negotiating a corresponding reduction in the compensation associated with said reduction.
Upon failure to agree, the Fixed Fee may be unilaterally reduced by the City by the amount oftime
and materials budgeted by Consultant for the Services deleted.
3.3. Security for Payment of Compensation by Applicant.
3.3.1. Deposit. As security for the payment of Consultant by Applicant, Applicant
shall, upon execution of this Agreement, deposit the amount indicated on Exhibit C as "Deposit
Amount" with the City, as trustee for Consultant, the conditions of such trust being as indicated on
Exhibit C and as herein below set forth:
3.3.1.1 Other Terms of Deposit Trust.
3.3.1.1.1. All interest earned on the Deposit Amount, if any, shall
accrue to the benefit of, and be used for, Trust purposes. City may, in lieu of deposit into a separate
bank account, separately account for said deposit in one or more of its various bank accounts, and
upon doing so, shall proportionately distribute to the Deposit Trust, the average interest earned
during the period on its general fund.
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 3
2-11
3.3.1.1.2. Any unused balance of Deposit Amount, including any
unused interest earned, shall be returned to Applicant not later than 30 days after the termination of
this Agreement and any claims resulting therefrom.
3.3.1.1.3. Applicant shall be notified within 30 days afterofthe use of
the Deposit in any manner. Nothing herein shall invalidate use of the Deposit in the manner herein
authorized.
3.3.1.1.4. At such time as City shall reasonably determine that
inadequate funds remain on Deposit to secure future compensation likely due Consultant or City,
City may make demand of Applicant to supplement said Deposit Amount in such amount as City
shall reasonably specify, and upon doing so, Applicant shall, within 30 days pay said amount
("Supplemental Deposit Amount") to City. Said Supplement Deposit Amount or Amounts shall be
governed by the same terms of trust governing the original Deposit.
3.3.2. Withholding of Processing. In addition to use of the Deposit as security, in
order to secure the duty of Applicant to pay Consultant for Services rendered under this Agreement,
City shall be entitled to withhold processing of Applicant's Application upon a breach of Applicant's
duty to compensate Consultant and in such event the force majeure provisions of the LOA shall
apply.
4. Non-Service Related Duties of Consultant.
4.1. Insurance.
Consultant represents that it and its agents, staff and subconsultants employed by it in
connection with the Services required to be rendered, are protected against the risk of loss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall
meet with the approval of the City:
4.1.1. Statutory Worker's Compensation Insurance and Employer's Liability
Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 10.
4.1.2. Commercial General Liability Insurance including Business Automobile
Insurance coverage in the amount set forth in Exhibit A, Paragraph 10, combined single limit applied
separately to each project away from premises owned orrented by Consultant, which names City and
Applicant as an Additional Insured, and which is primary to anypolicy which the City may otherwise
carry ("Primary Coverage"), and which treats the employees of the City and Applicant in the same
manner as members of the general public ("Cross-liability Coverage").
4.1.3. Errors and Omissions insurance, in the amount set forth in Exhibit A,
Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy.
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 4
2-12
4.2. Proof of Insurance Coverage.
4.2.1. Certificates of Insurance. Consultant shall demonstrate proof of coverage
herein required, prior to the commencement of services required under this Agreement, by delivery
of Certificates of Insurance demonstrating same, and further indicating that the policies may not be
canceled without at least thirty (30) days written notice to the Additional Insured.
4.2.2. Policy Endorsements Required. In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial
General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City and
Applicant demonstrating same.
4.3. Public Statements.
All public statements and releases to the news media shall be the responsibility of the City
and the Applicant. The Consultant shall not publish or release news items, articles or present lectures
on the Project, either during the course of the study or after its completion, except on written
concurrence of the City and Applicant.
4.4. Communication to Applicant.
Consultant shall not communicate directly to the Applicant except in the presence ofthe City,
or by writing an exact copy of which is simultaneously provided to City, except with the express
consent of City. The Consultant may request such meetings with the Applicant to ensure the
adequacy of services performed by Consultant.
5. Non-Compensation Duties of the Applicant.
5.1. Documents Access.
The Applicant shall provide to the Consultant, through the City, for the use by the Consultant
and City, such documents, or copies of such documents requested by Consultant, within the
possession of Applicant reasonably useful to the Consultant in performing the services herein
required of Consultant, including but not limited to those described in Exhibit A, Paragraph 7.
5.2. Property Access.
The Applicant hereby grants permission to the City and Consultant to enter and access the
Property, to take any borings, make any tests, conduct any surveys or reconnaissance necessary to
deliver the Services of Consultant, subject to the approval of the Applicant which shall not be
unreasonably denied. Consultant shall promptly repair any damage to the subject property occasioned
by such entry and shall indemnify, defend, and hold the City and Applicant, and their agents, and
employees harmless from all loss, cost, damage, expenses, claims, and liabilities in connection with
or arising from any such entry and access. Failure to allow Consultant timely access or entry to the
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 5
2-13
Property which is needed in order for Consultant to proceed with performance under this Agreement
shall trigger the force majeure provisions of the LOA.
5.3. Communication to Consultant.
Applicant shall not communicate directly to the Consultant except in the presence of the City,
or by writing an exact copy of which is simultaneously provided to City, except with the express
consent of City. The Applicant may request such meetings as they desire with the Consultant to
ensure the adequacy of services performed by Consultant.
6. Administrative Representatives.
Each party designates the individuals ("Administrators") indicated in Exhibit A, Paragraph 8,
as said party's contract administrator who is authorized by said party to represent them in the routine
administration of this Agreement.
7. Conflicts of Interest.
7.1. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 9, as an "FPPC filer," Consultant is
deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report his economic interests to the City Clerk on the required
Statement of Economic Interests in such reporting categories as are specified in Paragraph 9 of
Exhibit A, or if none are specified, then as determined by the City Attorney.
7.2. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make,
or participate in making or in any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to know Consultant has a financial
interest other than the compensation promised by this Agreement.
7.3. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and
represents that Consultant has diligently conducted a search and inventory of Consultant's 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.
7.4. Promise Not to Acquire Conflicting Interests.
Regardless ofwhether 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
AECOM-ERAiUniversity Village OLC Three-Party Agreement
May 11, 2010 Page 6
2-14
term of this Agreement which would constitute a conflict of interest as prohibited by the Fair
Political Practices Act.
7.5. Dutv to Advice of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants
and represents that Consultant will immediately advise the City Attorney of City if Consultant learns
of an economic interest of Consultant's which may result in a conflict of interest for the purpose of
the Fair Political Practices Act, and regulations promulgated thereunder.
7.6. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant, nor Consultant's immediate
family members, nor Consultant's employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in the property which is the subject matter of the Project,
or in any property within 10 radial miles from the exterior boundaries of the property which is the
subject matter of the Project, or ("Prohibited Interest").
Consultant further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Consultant or
Consultant Associates by Applicants or by any other party as a result of Consultant's performance of
this Agreement. Consultant promises to advise City of any such promise that may be made during
the Term of this Agreement, or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest
within the Term ofthis Agreement, or for 12 months after the expiration of this Agreement.
Consultant may not conduct or solicit any business for any party to this Agreement, or for any
third party which may be in conflict with Consultant's responsibilities under this Agreement.
8. Default of the Consultant for Breach.
This Agreement may be terminated by the City for default if the Consultant breaches this
Agreement or if the Consultant refuses or fails to pursue the work under this Agreement or any phase
of the work with such diligence which would assure its completion within a reasonable period of
time. Termination of this Agreement because of a default of the Consultant shall not relieve the
Consultant from liability of such default.
9. City's Right to Terminate Payment for Convenience, Documents.
9.1. Notwithstanding any other section or provision of this Agreement, the City shall have
the absolute right at any time to terminate this Agreement or any work to be performed pursuant to
this Agreement.
AECOM-ERAlUniversity Village OLC
May 11,2010
Three-Party Agreement
Page 7
2-15
9.2. In the event oftennination ofthis Agreement by the City in the absence of default of
the Consultant, the City shall pay the Consultant for the reasonable value of the services actually
perfonned by the Consultant up to the date of such tennination, less the aggregate of all sums
previously paid to the Consultant for services perfonned after execution of this Agreement and prior
to its tennination.
9.3. The Consultant hereby expressly waives any and all claims for damage or
compensation arising under this Agreement, except as set forth herein, in the event of such
tennination.
9.4. In the event of tennination of this Agreement, and upon demand of the City, the
Consultant shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all
other materials and documents prepared by the Consultant in perfonnance of this Agreement, and all
such documents and materials shall be the property of the City; provided however, that the
Consultant may retain copies for their own use and the City shall provide a copy, at Applicant's cost,
of all such documents to the Applicant.
9.5. Applicant shall have no right to tenninate Consultant, and shall not exercise any control
or direction over Consultant's work.
10. Administrative Claims Requirement and Procedures.
No suit shall be brought arising out of this Agreement, against the City, unless a claim has
first been presented in writing and filed with the City of Chula Vista and acted upon by the City of
Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal
Code, the provisions of which are incorporated by this reference as if set fully set forth herein.
II. Hold Hannless and Indemnification.
11.1. Consultant to Indemnify Citv reo Iniuries.
Consultant shall defend, indemnifY, protect and hold hannless the City, its elected and
appointed officers and employees from and against all claims for damages, liability, cost and expense
(including without limitation attorneys' fees) arising out of or alleged by third parties to be the result
of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and
Consultant's employees, subcontractors or other persons, agencies or finns for whom Consultant is
legally responsible in connection with the execution ofthe work covered by this Agreement, except
only for those claims, damages, liability, costs and expenses (including without limitations,
attorneys' fees) arising from the sole negligence or sole willful misconduct of the City, its officers, or
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.
AECOM-ERA/University Village OLC
May 11,2010
Three-Party Agreement
Page 8
2-16
With respect to losses arising from Consultant's professional errors and omISSions,
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed
officers and employees, from and against all claims for damages, liability, cost and expense
(including without limitation attorneys fees) except those claims arising trom the negligence or
willful misconduct of City, it officers or employees.
Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and
liability incurred by the City, its officers, agents, or employees in defending against such claims,
whether the same proceed to judgment or not. Consultant's obligations under this Section shall not
be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under
this Section shall survive the termination of this Agreement.
11.2. Applicant to Indemnify City reo Compensation of Consultant.
Applicant agrees to defend, indemnify and hold the City harmless against and from any and
all claims, losses, damages, expenses or expenditures of City, including its elected officials, officers,
employees, agents, or representatives of the City ("City Indemnitees"), in any way resulting from or
arising out of the refusal to pay compensation as demanded by Consultant for the performance of
services required by this Agreement.
12. Business Licenses.
Applicant agrees to obtain a business license from the City and to otherwise comply with
Chula Vista Municipal Code, Title 5. Applicant further agrees to require Consultant to obtain such
business license and to comply with Chula Vista Municipal Code, Title 5.
13. Miscellaneous.
13.1. Consultant not authorized to Represent City.
Unless specifically authorized in writing by City, neither Consultant nor Applicant shall have
authority to act as City's agent to bind City to any contractual agreements whatsoever.
13.2. Notices.
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United States
mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested,
at the addresses identified for the parties in Exhibit A.
13.3. Entitlement to Subsequent Notices.
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 9
2-17
No notice to or demand on the parties for notice of an event not herein legally required to be
given shall in itself create the right in the parties to any other or further notice or demand in the same,
similar or other circumstances.
13.4. Entire Agreement.
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived
or discharged except by an instrument in writing executed by the party against which enforcement of
such amendment, waiver or discharge is sought.
13.5. Capacity of Parties.
Each signatory and party hereto hereby warrants and represents to the other party that it has
legal authority and capacity and direction from its principal to enter into this Agreement; that all
resolutions or other actions have been taken so as to enable it to enter into this Agreement.
13.6. 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 hereunder,
shall be the City of Chula Vista.
13.7. Modification.
No modification or waiver of any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the parties hereto, and then shall be valid only in the specific
instance and for the purpose for which given.
13.8. Counterparts.
This Agreement may be executed in more than one counterpart, each of which shall be
deemed to be an original but all of which, when taken together shall constitute but one instrument.
13.9. Severability.
In the event that any provision of this Agreement shall for any reason, be determined to be
invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and
agree to such amendments, modifications, or supplements to this Agreement or such other
appropriate action as shall, to the maximum extent practicable in light of such detemlination,
implement and give effect to the intentions of the parties as reflected herein.
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 10
2-18
13.10. Headings.
The captions and headings in this Agreement are for convenience only and shall not define or
limit the provisions hereof.
13.11. Waiver.
No course of dealing or failure or delay, nor the single failure or delay, or the partial exercise
of any right, power or privilege, on the part of the parties shall operate as a waiver of any rights
herein contained. The making or the acceptance of a payment by either party with knowledge ofthe
existence of a breach shall not operate or be construed to operate as a waiver of any such breach.
13.12. Remedies.
The rights of the parties under this Agreement are cumulative and not exclusive of any rights
or remedies which the parties might otherwise have unless this Agreement provides to the contrary.
13.13. No Additional Beneficiaries.
Despite the fact that the required performance under this Agreement may have an effect upon
persons not parties hereto, the parties specifically intend no benefit therefrom, and agree that no
performance hereunder may be enforced by any person not a party to this Agreement.
Notwithstanding the foregoing, this is a three party agreement and the City is an express third party
beneficiary of the promises of Consultant to provide services paid for by Applicant.
[Remainder of page intentionally left blank]
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 11
2-19
Signature Page To
the Agreement Between
City of Chula Vista,
AECOM Technical Services, Inc. and
Otay Land Company LLC
For Consulting Work to be Performed with Regard to Applicant's Project
(Page I of2)
NOW THEREFORE, the parties hereto, having read and understood the terms and conditions
of this Agreement, do hereby express their consent to the terms hereofby setting their hand hereto on
the date set forth adjacent thereto.
Dated:
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to Form:
Bart Miesfeld, City Attorney
4/2-7/rv
Consultant: AECOM Technical Services, Inc.
Dated:
By:
~
ItabhBarthakur,AICP
Vice President
AECOM-ERAiUniversity Village OLC
May 11,2010
Three-Party Agreement
Page 12
2-20
Signature Page To
the Agreement Between
City of Chula Vista,
AECOM Technical Services, Inc. and
Otay Land Company LLC
For Consulting Work to be Performed with Regard to Applicant's Project
(Page 2 of 2)
Dated:
~h1 /10
(PeNT
By:
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 13
2-21
Exhibit A
Reference Date of Agreement:
May 19, 2010
Effective Date of Agreement:
City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Consultant:
AECOM Technical Services, Inc.
Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
Address:
10990 Wilshire Boulevard, Suite 1500
Los Angeles CA 90024
(310) 477-9585
Applicant:
Otay Land Company, LLC
Business Form of Applicants:
( ) Sole Proprietorship
( ) Partnership
( ) Corporation
(X) Other: A California Limited Liability Company
Address:
1903 Wright Place, Suite 220
Carlsbad, CA 92008
1. Property (Commonly known address or General Description):
The project site is located within the Otay Valley Parcel of the Otay Ranch Planned Community.
The project area is generally described within the Otay Ranch General Development Plan as portions
of Villages 4, 7,8, and 9. More specifically, the geographic areas are as described below and shown
on the illustrated plan in Attachment A:
.
The portion of Village Four that is included in this project is bound by the Otay River Valley
to the south, the remainder of Village Four to the north and west, and the southerly extension
of La Media Road to the east.
. The portion of Village Seven included in this project is bound by Rock Mountain RoadlMain
Street to the south, the remainder of Village Seven to the north, La Media Road to the west
and the existing Olympian High School to the east.
AECOM-ERAiUniversity Village OLC Three-Party Agreement
May 11, 2010 Page 14
2-22
.
The portion of Village Eight that is included in this project is bound by the Otay River Valley
to the south, Rock Mountain Road/Main Street to the north, the remainder of Village 8 to the
east and La Media Road to the west.
.
The portion of Village Nine that is included in this project is bound by the Otay River Valley
to the south, Rock Mountain Road/Hunte Parkway to the north, the proposed University site
to the east and SR-125 to the west.
2. Project Description ("Project"):
The project consists of the preparation of a an Employment Lands Analysis ("ELA") and Fiscal
Impact Analysis ("FlA") addressing proposed Amendments to the Chula Vista General Plan and
Otay Ranch General Development Plan, in order to allow land uses that accommodate up to 6,050
single and multi-family dwelling units on approximately 643 acres ofland, as envisioned in the 2008
Land Offer Agreement between the City of Chula Vista and the Otay Land Company, LLC. The ELA
and FlA will analyze all potential economic and fiscal impacts associated with the implementation of
the Land Offer Agreement between the City of Chula Vista and Otay Land Company, LLC.
3. Entitlements applied for:
Proposed discretionary actions for the Property include: General Plan Amendment, General
Development Plan Amendment, along with Environmental review and documentation.
4. General Nature of Consulting Services ("General Services"):
Consultant shall provide the City with an analysis ofthe economic and fiscal impact to the City as a
result of an approximate increase of866 higher density units, beyond what was analyzed in the 2005
General Plan Update ("GPU") on approximately 633 acres of land, in order to make an informed
decision with respect to the University and Southern Otay Ranch General Plan Amendment and
General Development Plan Amendment.
5. Detailed Scope of Work ("Detailed Services"):
The Detailed Services to be provided are described below:
5.A Task 1: Current Conditions Analysis
1. Attend kick-off meeting with staff.
2. Inspect project area (if necessary) and obtain available background materials ITom the
City and Applicant (as outlined in Task 2).
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 15
2-23
3. Identify City departments to be involved and key contact persons in providing necessary
information and communication protocol.
5.B Task 2: Employment Lands Policy Review
1. AECOM will review all current and relevant available fiscal, economic and industrial
employment lands studies for Chula Vista and the Southbay region in order to gain and
present an understanding of reports previously prepared, any relevant changes in
circumstances, and to avoid duplication of effort. Documents to be reviewed include but
are not limited to:
. Chula Vista Economic Development Strategy
. Chula Vista General Plan Update Fiscal Impact Analysis (2005)
. Chula Vista Urban Core Specific Plan Market Analysis (2005)
. Real Estate Market Analysis Otay Mesa Community Plan Area (2005)
. Real Estate Market Analysis Otay Mesa Community Plan Area Addendum (2007)
. SANDAG Employment Lands Inventory (2009)
. Proj ect Level Fiscal Analyses
o Otay Ranch Village 2 (May 2006)
o Eastlake Business Center (December 2007)
o Eastern Urban Center (September 2009)
The City will provide AECOM with copies of the above studies (not conducted by AECOM)
at the kick-off meeting.
5.C Task 3: Employment Lands Analysis
1. AECOM will review the most current employment projections for the region, South Bay
and Chula Vista from SANDAG, between now and 2030.
AECOM-ERA/University Vil1age OLC
May 11,2010
Three-Party Agreement
Page 16
2-24
2. Summarize various population and employment projections used for the GPU update and
other studies identified in Task 2.
3. Prepare a comparative analysis of any shifts in projections of regional employment in San
Diego County and South Bay.
4. Evaluate overall industrial and office markets in the region and county sub-regions to
compare and contrast employment capture trends in the region over the last 10 years.
This will be accompanied by an analysis of regional and sub-regional real estate trends as
it relates to office and industrial development.
5. Evaluate any shifts in Chula Vista's competitive position as it relates to future capture of
office and industrial employment and related real estate. This includes the development
of any new infrastructure, changes in regulatory policy, and development of catalytic
projects.
6. Based on the above, prepare an employment land demand analysis and related capture in
Chula Vista between now and 2030. AECOM will express the [mdings in terms of
General Industrial, Flex and R&D Industrial, and office related uses (employment, acres,
and square feet).
7. Based on data provided by the City, AECOM will estimate the inventory of available land
for industrial and office development in the City under the GPU scenario and with the
proposed GP A. In addition AECOM will estimate current vacancies in the marketplace
to estimate total supply of office and industrial real estate in the market place.
8. Compare projected demand and existing supply to determine any potential gaps,
especially in terms ofland undersupply, that may result from the proposed GP A.
9. Summarize the findings of the analysis comparing the current GPU and the proposed
GP A. AECOM will provide a quantitative and qualitative assessment/evaluation of
employment lands supply and demand necessary to meet the employment needs of the
City resultant from the proposed GP A.
S.D Task 4: FiscaIImpact Analysis
1. AECOM will review the City-wide Sectional Planning Area ("SPA") fiscal model
developed in 2007-08 for the analysis of development projects based on the GPU fiscal
model.
2. Meet with the City's Finance Department representatives to review major changes in the
City budget since the GPU and SPA analysis. AECOM will collect the City budget
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 17
2-25
summaries and departmental staffmg trends during the past 5 years. AECOM will gather
any other pertinent information as it relates to cost and revenue anomalies during the past
5 years.
3. The current SPA fiscal model is benchmarked on the FY 2006 budget. The SPA fiscal
model requires recalibration that reflects the City's current budget and assumptions.
AECOM will adjust the cost factors derived from the model using budgetary inflation
factors, and equivalent dwelling unit ("EDU") growth since 2006.
4. Develop a revised/recalibrated fiscal cost matrix applicable to this FIA.
5. Apply the cost factors to the land use information provided by the City to derive annual
fiscal costs attributed to the GP A.
6. AECOM will use special models to derive revenue impacts from Property taxes, Sales
taxes, Transit Occupancy Tax ("TOT") (if applicable) and other revenues on a per capita
or per employee basis.
7. Prepare a draft of the preliminary findings of the FIA in memorandum format acceptable
to the City. Ifthe result of this analysis is not neutral or positive, AECOM will identify
the causes and fiscal impact drivers for the City's consideration.
8. Provide the City with a report ofthe FIA including all analysis tables and exhibits in a
form acceptable to the City.
9. Any additional fiscal impact analysis scenarios required will be performed by AECOM on a
time and expense basis with approval from the City and the Applicant in accordance with the
consultant's billing rates as listed in Exhibit C.
S.D Task 5: Draft and Final Economic and Fiscal Reports
Deliverable #1
1. AECOM will provide the City with 1 electronic copy in PDF format and 8 bound draft
reports including:
a. Summary of findings (i.e. Executive Summary)
b. Text, tabular/graphic presentation of content required to address tasks 5.A through
5.D above.
AECOM-ERAlUniversity Village OLC
May 11, 2010
T1rree-Party Agreement
Page 18
2-26
c. An appendix of detailed analysis tables, methodology and assumptions.
Deliverable #2
2. Upon receiving comments from the City on the draft reports, ABCOM will provide 18
final bound reports, including an electronic copy in PDF format, incorporating any edits
as appropriate.
5.E Task 6: Meetings and Presentations
1. ABCOM will meet with City staff as necessary for data collection, report production, and
internal review. The Consultant shall attend a start-uplkick-off meeting with the City to
establish communication protocols, confirm their understanding of the project, discuss key
issues, review the schedule of deliverables, and collect plans and documents. Following the
start-up meeting and a thorough review of project plans, the Consultant shall prepare a
memorandum identifYing outstanding information required to complete the ELA and FIA.
Tbis will include collection and review of relevant planning documents and studies,
including but not limited to, the City's adopted General Plan, previously prepared economic
and fiscal studies, and any Applicant-prepared support documents. In assembling baseline
information for the ELAJFIA, the Consultant will maximize use of existing data.
2. Specifically, ABCOM will participate in the following meetings/conference calls:
a. Kick off Meeting (planning team).
b. Meeting with the Finance Department.
c. Consultant presentation of preliminary findings of the ELA and FIA to the City
via meeting or conference call subject to approval of the contract administrator.
d. Up to two public meetings (Planning Commission and City Council).
e. Up to four Conference Calls in addition to items a, b, and c.
3. Additional meetings and/or presentations will be billed on a time and materials basis as
agreed to in advance by the City and ABCOM. These additional meetings and/or
presentations are in addition to meetings with City staffthat are necessary for data collection
and internal review, as listed above.
6. Schedule, Milestone, Time-Limitations within wbich to Perform Services.
Date for Commencement of Consultant Services:
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 19
2-27
( x ) Same as Effective Date of Agreement
Dates or Time Limits for Delivery of Deliver abies:
Deliverables -
Consultant will provide to the City each one of the deliverables to the satisfaction of the City's
Deputy City Manager/Development Services Director or his designee, including any and all
revisions to documents that are the result of errors or omissions on the part of the Consultant.
Deliverable No.1: 8 printed copies, 1 electronic copy in PDF fonnat, and 1 reproducible copy of
the draft ELA and FIA as described in Task 5.D.1 above, due June 30, 2010 or six weeks after
commencement of contract.
Deliverable No.2: 18 printed copies, 1 electronic copy in PDF fonnat, and 1 reproducible copy
as described in Task 5.D.2 above, due two weeks from the date the Consultant receives final
comments on the draft ELA and FIA reports from City Staff.
Dates for completion of all Consultant services: Date of City Council [mal action on the
proposed General Plan amendment, or completion of all tasks to the satisfaction of the City's
Deputy City ManagerlDevelopment Services Director, whichever is later.
7. Documents to be provided by Applicants to Consultant:
() site plans ( ) grading plans ( ) architectural elevations (X) project description.
(X) other: Proposed General Plan Amendment revised text, including new/revised policies
and supporting graphics.
8. Contract Administrators.
City:
Stan Donn, AICP
Senior Planner
Public Services Building 300
276 Fourth Avenue
Chula Vista, CA 92010
Tel: (619) 409-5953
Applicant:
Otay Land Company LLC
1903 Wright Place, Suite 220
Carlsbad, CA 92008
(760) 918-8200
AECOM-ERAiUniversity Village OLC
May 11, 2010 Page 20
Three-Party Agreement
2-28
Consultant:
ABCOM Technical Services, Inc.
Amitabh Barthakur, Vice President
10990 Wilshire Boulevard, Suite 1500
Los Angeles CA 90024
(310) 477-9585
9. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code:
(X) Not Applicable.
( ) Category No. I.
( ) Category No.2.
( ) Category No.3.
( )
Category No. 4.
( )
Category No. 5.
( )
Category No.6.
( )
Category No. 7.
Not an FPPC Filer.
Investments and sources of income.
Interests in real property.
Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of the
department.
Investments in business entities and sources of income which
engage in land development, construction or the acquisition or
sale of real property.
Investments in business entities and sources of income of the
type which, within the past two years, have contracted with
the City of Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or equipment.
Investments in business entities and sources of income of the
type which, within the past two years, have contracted with
the designated employee's department to provide services,
supplies, materials, machinery or equipment.
Business positions.
10. Insurance Requirements:
(x) Commercial General Liability: $1,000,000.
(x) Automobile Liability: $1,000,000.
(x) Worker's Compensation: Statutory
(x) Employer's Liability: $1,000,000.
( ) Errors and Omissions Liability: $2,000,000.
AECOM-ERNUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 21
2-29
Exhibit B
Additional Recitals
WHEREAS, Applications for a General Plan Amendment and General Development Plan
Amendment were submitted to the City ofChula Vista on March 3, 2009; and
WHEREAS, the preparation of an Employment Land Analysis (ELA) and Fiscal Impact
Analysis (FIA) is a necessary component of the General Plan Amendment process; and
WHEREAS, it was determined by the Deputy City ManagerfDevelopment Services Director
that staffhas neither the available time or expertise to perform the subject financial evaluation work;
and
WHEREAS, the City is in immediate need of an experienced fmancial consultant that is
familiar with the City's policies and procedures; and
WHEREAS, ERA has acquired an in-depth knowledge of Chula Vista General Plan-
related job/housing balance and fiscal impact issues through their preparation of the 2005
General Plan Update ELA and FIA; and
WHEREAS, ERA's comprehensive familiarity with the Chula Vista General Plan and South
Bay study area, coupled with the knowledge gained through their preparation of the General Plan
Update ELA and FIA, makes ERA uniquely qualified to serve as the Consultant for this project; and
WHEREAS, the Consultant was selected for the preparation of a financial study based upon
the fact that they are recognized experts in a highly specialized and technical field, and familiar with
the City's policies and procedures; and
WHEREAS, the consultant 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 herein provided all in accordance with the terms and conditions of this
Agreement, and that time is of the essence; and
WHEREAS, the Consultant has been pre-qualified and placed on a City list of available
qualified consultants; and
WHEREAS, the Consultant's proposal is a fixed not to exceed amount of $50,000; and
WHEREAS, the amount of the contract with Consultant to provide consultant services is
an amount not to exceed $50,000.00 with an additional $15,000.00 for additional services should
they be necessary, in accordance with the Consultant rate as presented in Exhibit C; and
AECOM-ERNUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 22
2-30
WHEREAS, the Applicant has or will deposit funds for the consulting services necessary
for the preparation of the ELA and FIA as outlined in Exhibit C.
(End of Recitals)
AECOM-ERAiUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 23
2-31
Exhibit C
Compensation Schedule and Deposit: Terms and Conditions.
( X) Single Fixed Fee Arrangement.
For performance of all ofthe General and Detailed Services of Consultant as herein required,
Applicant shall pay a single fixed fee in the amounts and at the times or milestones set forth below:
(x) Single Fixed Fee Amount: $50,000
Milestone or Event Amount or Percent
of Fixed Fee
1. Signing of this Agreement by all parties, kick-off $5,000 (10%)
meeting and upon the request of the Consultant.
2. Submittal of First Draft of the ELA * $25,000 (50%)
3. Submittal of Reca1ibrated Fiscal Model $10,000 (20%)
4. Submittal of the Draft FIA $5,000 (10%)
5. Submittal of the Final ELNFIA $2,000 (4%)
6. Attendance at the Planning Commission Public Hearing $1,500 (3%)
for the Proposed GP A
7. Attendance at the City Council Public Hearing for the $1,500 (3%)
Proposed GP A
Sub-Total Fixed Fee Amount $50,000
30% Contingency Fee** $15,000
Total Fixed Fee Amount $65,000
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 24
2-32
*For purposes of payment the first draft ELA shall completely address and analyze all issues
identified in the detailed scope-of-work (described in Exhibit "A", Section 5) to the satisfaction of
the Deputy City ManageriDevelopment Services Director or designee. Payment shall not be made
until the City's Deputy City Manager/Development Services Director or designee determines that a
complete draft ELA document has been submitted.
** Pursuant to section's 3.2.1 and 3.2.1.1, the Deputy City ManageriDevelopment Services Director
or designee in his discretion independently or if the Applicant, with the concurrence of the City
determines that additional services are needed from the Consultant, from time to time, may negotiate
additional services to be performed by the Consultant under this Agreement in order to cover
unforeseen issues that may be identified during the preparation of the ELAlFlA. The cost of
additional services in connection with the ELAlFlA shall not exceed 30% of the total contract
amount ($15,000.00).
( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the General and Detailed Services of
Consultant as are separately identified in Exhibit C, under the category labeled "Phased Fixed Fee
Arrangement", Applicant shall pay the fixed fee associated with each phase of Services, in the
amounts and at the times or milestones set forth herein below ("Phase Fixed Fee Arrangement").
Consultant shall not commence Services under any Phase, and shall not be entitled to the
compensation for a Phase, unless Applicants shall have issued a notice to proceed to Consultant as to
said Phase.
Fee for Phase
Said Phase
( ) Time and Materials
For performance of the General and Detailed Services of Consultant as herein required,
Applicants shall pay Consultant for the productive hours oftime and material spent by Consultant in
the performance of said Services, at the rates or amounts set forth herein below according to the
following terms and conditions:
() Not-to-Exceed Limitation on Time ,and Materials Arrangement
Notwithstanding the expenditure by Consultant of time and materials in excess of said
Maximum Compensation amount, Consultant agrees that Consultant will perform all ofthe
General and Detailed Services herein required of Consultant for $
including all Materials, and other "reimburseables" ("Maximum Compensation").
( ) Limitation without Further Authorization on Time and Materials Arrangement
At such time as Consultant shall have incurred time and materials equal to
("Authorization Limit"), Consultant shall not be entitled to any
AECOM-ERAfUniversity Village OLC Three-Party Agreement
May 11, 2010 Page 2S
2-33
additional compensation without further authorization issued in writing and approved by the
City Council. Nothing herein shall preclude Consultant from providing additional Services
at Consultant's own cost and expense.
Consultant's Rate Schedule
Category of Employee
of Consultant
Name
Hourly
Rate
Principal-in-Charge
Sr. Associate
Sr. Associate
Associate
Analyst
Support Staff
Amitabh Barthakur
Lance Harris
Judy Taylor
$ 230
$ 160
$ 160
$ 120
$ 100
$ 70
* Other individuals from the Consultant firm may be substituted in place of the names listed
solely at the discretion of the Deputy City ManagerlDevelopment Services Director.
( ) Hourly rates may increase by 6% for services rendered after
Materials Separately Paid For by Applicant-
( ) Materials
Reports
Copies
( ) Travel
( ) Printing
( ) Postage
( ) Delivery
( ) Long Distance Telephone Charges
(X) Other
Cost or Rate
NA
NA
NA
NA
NA
NA
NA
-----------------------------------
Deposit
(X) Deposit Amount: $50,000.00 - As agreed by the Applicant, 100% of the Deposit ($50,000)
is to be made by Otay Land Company, LLC. In addition, Applicant agrees to deposit, within
10 days if City requests to do so, a sum (estimated to be up to $15,000) for any additional
services which shall separately be paid for by the Applicant.
AECOM-ERA/University Village OLC
May 11, 2010
Three-Party Agreement
Page 26
2-34
(X) Use of Deposit to Pay Consultant.
Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this paragraph is
"checked," upon City's receipt of billing by Consultant, and determination by City in good faith that
Consultant's billing is proper, a judgment for which Applicant agrees to hold City harmless and
waive any claim against City, City shall pay Consultant's billing ITom the amount of the Deposit. If
Applicant shall protest the propriety of a billing to City in advance of payment, City shall consider
Applicant's protest and any evidence submitted prior to the due date for the payment of said bill by
Applicant in making its good faith determination of propriety.
() Use of Deposit as Security Only; Applicants to Make Billing Payments.
Upon determination by City made in good faith that Consultant is entitled to compensation
which shall remain unpaid by Applicant 30 days after billing, City may, at its option, use the Deposit
to pay said billing.
(X) Bill Processing:
A. Consultant's Billing to be submitted for the following period of time:
( ) Monthly
( ) Quarterly
(X) Other: Milestone
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End ofthe Month
(X) Other: Upon Completion of Milestone
C.
City's Account Number:
Agreement is processed.)
(To be assigned after
D. Security for Performance
( ) Performance Bond, $
( ) 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, the following Retention
AECOM-ERAJUniversity Village OLC Three-Party Agreement
May 11, 2010 Page 27
2-35
Percentage 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 to the satisfaction of the Deputy
City Manager/Development Services Director
( ) Monthly
( ) Quarterly
(X) Other: In accordance with the_milestones provided herein.
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) End of the Month
(X) Other: Upon completion of the milestones identified herein.
AECOM-ERAlUniversity Village OLC
May 11, 2010
Three-Party Agreement
Page 28
2-36