HomeMy WebLinkAbout2010/09/14 Item 17
CITY COUNCIL
AGIENDA STATEMENT
~!'f:. ClIT OF
~~ CHUIA VISTA
Item No.: 17
Meeting Date: 09/14/10
SUBMITTED BY:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A THREE PARTY AGREEMENT
BETWEEN THE CITY OF CHULA VISTA, PMC, INC., AND
OTAY LAND COMPANY, LLC FOR CONSULTANT SERVICES
RELATED TO PREP ARA nON OF PUBLIC FACILITIES
FINANCING PLANS AND FISCAL IMP ACT ANALYSES
ASSOCIATED WITH THE OTAY RANCH VILLAGES EIGHT
WEST AND NINE SECTIONAL PLANNING AREA (SPA) PLANS,
AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
ASSIST ANT ,~WY.L MA
DIRECTO~ I~
CITY MANAGE
SERVICES
ITEM TITLE:
REVIEWED BY:
4/5 VOTE REQUIRED
YES
NO X
SUMMARY
In April 2008 the City approved a Land Offer Agreement (LOA) with the Otay Land Company
(OLC) laying out particular processing considerations for their Village 8 West and Village 9
projects. The applicant has filed Sectional Planning Area (SPA) Plans and Tentative Map
applications for Village 8 West and Village 9. The item requests City Council approval of a three-
party contract for preparation of the necessary Public Facilities Financing Plans (PFFP) and Fiscal
Impact Analyses for both Villages.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed contract approval for
compliance with the California Environmental Quality Act (CEQA) and has detelmined 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. Thus. no environmental review of contract approval is necessary.
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Page 2, Item No.: /7
Meeting Date: 09/14/10
RECOMMENDATION:
That the City Council adopt the Resolution.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
Reckgrollnrl
In April of 2008 the City Council approved a Land Offer Agreement (LOA) with the Otay Land
Company to acquire additional lands for the planned University/Regional Technology Park
within the Otay Ranch community. In general, the LOA provides the City land for a future
University in exchange for consideration of increascd densities and a two-year processing
schedule for the entitlements on the applicant's Village 8 West and Village 9 projects. As called
for by the LOA, the City and the applicant also entered into a Processing Agreement in June of
2009 that details the timing and processing of the entitlements.
In July 2009 the applicant submitted applications for SPA Plans and Tentative Maps for Village 8
West and Village 9, and the City is actively processing those applications. Pursuant to the City's
Gro\\ith Management Ordinance (CVMC 19.09), the SPA Plan and Tentative Map submittals for
Village 8 West and Village 9 require the preparatiOli of Public Facilities Financing Plans (PFFP)
that include a Fiscal Impact Analysis (FIA).
('onslllt~nt Se-rvl('f'S Sp'eC'tlon Pnw:pss
On June 10, 20 I 0 the City issued a Request for Proposals (RFP) for the preparation of the needed
PFFPs and FIAs for the Village 8 West and Village 9 projects. A total of six firms responded, on
or before the June 24, 2010 due date, with proposals which were then rated by a panel against
pre-determined factors. After compiling the data sheets submitted by each of the reviewers PMC,
Inc. had the highest average rating and was selected as the preferred consultant.
SCOp" of Work
Through the three-party agreement, PMC, Inc. will function as the PFFP and FIA Consultant to
the City of Chula Vista under the supervision of the City's Project Manager. The responsibilities
ofPMC, Inc. will include the following:
Pllhlic Fecilities Finencine Plens (PFFPs)
.
Review of the available Project information;
Identitlcation offacilities and service impacts;
Evaluation and recommendation to mitigate potential impacts;
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Page 3, Item No.: /7
Meeting Date: 09/14/10
. Preparation of Public Facilities Financing Plans (PFFP's) for Villages 8 West and 9;
and
. Attendance at team meetings and public hearings; and
Collaboration on Draft Conditions of Approval.
Fiscellmpect Anclysps (FIAs)
Gather and review available Project information;
. Identification of potential fiscal impacts;
Evaluation and recommendation to mitigate potential fiscal impacts;
. Incorporation ofFIAs into PFFP documents; and
. Attendance at team meetings and public hearings.
C'ontmct Peyment
The total cost of the contract for consulting services is $82,720 with an additional 15% contingency
($12,408) for additional services to cover unforeseen issues that may arise during preparation of the
PFFPs and FlAs and if determined necessary by the Development Services Director. The projcct
applicant will pay all consultant costs, as well as reimburse the City for all associated staffing costs
through the projects' deposit accounts.
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.
FISCAL IMPACT:
There will be no impact to the General Fund. The applicant will fully compensate the consultant for
consulting services, and will also reimburse the City for all associated staffing costs through the
projects' deposit accounts.
ON-GOING FISCAL IMPACT
Approval of the three-party agreement will not result in on-going fiscal impacts since the applicant
is solely responsible for compensating the consultant and reimbursing the City for all associated
staffing costs. Also, production of the project PFFP's and FIA's under the contract is a one-time
work effort that will be completed by August 20 II.
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Page 4, Item No.: 17
Meeting Date: 09/14/10
Attachments:
1. Project Boundary Map
2. Three Party Agreement
H:IPLANNTNGIOtaL RanchlUniversity _and_South _OR _ VillageslOLCIPFFPIOLC ]FFP CC _Agenda _ Statement. doc
17-4
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF TI-IE ClTY
OF CHULA VISTA APPROVING A THREE PARTY
AGREEMENT BETWEEN THE CITY OF CHULA
VISTA, PMC, INC., AND OTAY LAND COMPANY,
HC FOR CONSULTANT SERVICES RELATED TO
PREPARATION OF PUBLIC FACILITIES FINANCING
PLANS AND FISCAL IMPACT ANAL YSES
ASSOCIATED WITH THE OTAY RANCH VILLAGES
EIGHT WEST AND NINE SECTIONAL PLAJ'..TNING
AREA (SPA) PLANS, AND AUTHORIZING THE
MA YOR TO EXECUTE SAID AGREEMENT
WHEREAS, pursuant to Title 19 of the Chula Vista Municipal Code, Section
19.09.050, a Public Facilities Financing Plan (PFFP) and Fiscal Impact Analysis (FIA) is
required as part ofa Sectional Planning Area (SPA) Plan; and
WHEREAS, Otay Land Company LLC, (Applicant) has submitted SPA Plan
applications for Otay Ranch Villages 8 West and Village 9 (Properties) and it is
necessary to prepare a PFFP and FIA as required for each ofthe Properties; and
WHEREAS, it was determined by the Assistant City Manager/Director of
Development Services that staff does not have the expertise to perform the subject work;
,md
WHEREAS, on June 10, 2010, the Planning Division issued a Request for
Proposals (RFP) for the preparation of PFFPs and FlAs for Villages 8 West and 9
pursuant to CVMC 2.56.110; and
WHEREAS, City statlreviewed proposals submitted from six firms ami rated the
proposals against pre-determined factors in which PMC, Inc. received the highest average
rating; and
WHEREAS, City staff is recommending the selection of PMC, Inc. who is
qualitied to prepare the PFFPs because of their prior work preparing PFFPs within Otay
Ranch, the proposed cost, and their knowledge of the project; and
WHEREAS, PMC, Inc. has performed satisfactorily under the other similar
agreements and it is staffs recommendation that it is in the City's best interest to hire
PIYlC, Inc. due to their extensive knowledge and familiarity of the City's PFFP process
and requirements; and
17-5
Resollltion No.
Page 2
WHEREAS, the PMC, Inc. represents that they are staffed in a maimer that they
can prepare and deliver the required services to the City within the necessary time
frames; and
WHEREAS, pursuant to the terms of this Three Party Agreement, PMC, Inc. will
prepare PFFPs amI FIAs for Otay Ranch Villages 8 West and 9, the City will manage the
Agreement, and the Applicant ,will be responsible for all costs; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
contract approval 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 Section 15060(c)(3) of the State
CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review of
contract approval is necessary.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chub Vista hereby approves the Three Party Agreement between the City of Chula Vista,
PMC, lnc, and Otay Land Company for Consultant Services rendered for Villages 8 West
and 9.
BE IT FURTHER RESOL VED, that the City Council hereby authorizes and directs
the Mayor to execute said Agreement for and on behalf of the City ofChula Vista.
Presented by
Approved as to form by
Gary I-Ialhert, AICP, PE
Assistant City Manager/Development
Services Director
. t C. 1 .
~LCity Attorney
17-6
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Village 8 West and Village 9 Project Boundary Map
NORTH
Attachment 1
I.
THE ATTACHED 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
~c~
City Attorney
Dated:
cr/er/(O
I I
THREE PARTY AGREEMENT BETWEEN
THE CITY OF CHULA VISTA,
PMC, INC., AND
OTAYLAND COMPANY, LLC
FOR VILLAGE 8 WEST AND 9 PFFP
17-8
Three Party Agreement
Between
City of Chula Vista,
PMC, Consultant, and
Otay Land Company LLC, Applicant
For Consulting Work to be Rendered
with regard to Applicant's Project
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 Cali fomi a, the person designated
on the attached Exhibit A as "Consultant", PMC, whose business form and address is indicated on
the attached Exhibit A, and the person designated on the attached Exhibit A as "Applicant", Otay
Land Company LLC, whose business form and address is indicated on the attached Exhibit A, and is
made with reference to the following facts:
RECITALS, WARRANTIES, AND REPRESENTATION.
WHEREAS, 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.
WHEREAS, On April 15, 2008, the City and Applicant entered into a Land Offer Agreement
("LOA") which set forth the terms and conditions for Applicant's conveyance and the City's
acceptance of certain real property described within the LOA.
WHEREAS, 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.
WHEREAS, 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.
WHEREAS, City does not presently have the "in house" staff or resources to process the
Application within the time frame requested for review by the Applicant.
WHEREAS 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 for the benefit, and under the direction of, the City.
Village 8 West and 9 PFFP 3-Party Agreement
Page 1
17-9
WHEREAS, additional facts and circumstances regarding the background for this Agreement are
set forth on Exhibit B;
NOW, THEREFORE, for mutual consideration, the sufficiency of which IS hereby
acknowledged, the City, the Consultant, and the Applicant agree as follows:
TERMS AND CONDITIONS
1. Employment of Consultant.
1.1 Applicant Emplovs Consultant. Consultant is hereby engaged by the Applicant, not the
City, at Applicant's sole cost and expense, to perform to, and for the primary benefit ot:
City, and solely at City's direction, all of the services described on the attached Exhibit A,
Paragraph 4, entitled "General Nature of Consulting Services", ("General Services"), and
in the process of performing and delivering said General Services, Consultant shall also
perform to and for the benefit of City all of the services described in Exhibit A,
Paragraph 5, entitled "Detailed Scope of Work", ("Detailed Services"), and all services
reasonable necessary to accomplish said General Services and Detailed Scope of Work,
and shall deliver such documents required by this Agreement ("Deliverables"), all within
the time frames set forth herein, and in particular as set forth in Exhibit A, Paragraph 6,
and if none are set forth, within a reasonable period oftime for the diligent execution of
Consultant's duties hereunder. Time is of the essence ofthis covenant. Applicant shall
not exercise any control or direction over Consultant's work.
1.2 Consultant's Obligations.
1.2.1 Scope of Services. The Consultant does hereby agree to perform said General
and Detailed Services, 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.
1.2.2 Standard of Care. 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.
Village 8 West and 9 PFFP 3-Party Agreement
Page 2
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1.2.3 Additional Work. Ifthe Applicant, with the concurrence of City, determines that
additional services ("Additional Services") are needed from Consultant of the
type Consultant is qualified to render or reasonably related to the Services
Consultant is otherwise required to provide by this Agreement, the Consultant
agrees to provide such additional services on a time and materials basis paid for
by Applicant at the rates set forth in Exhibit C, unless a separate fixed fee is
otherwise agreed upon in writing for said Additional Work between the parties.
1.2.3.1 Suspension of Processing. 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 until the
Applicant deposits with the City's the estimated costs of the additional
work which the City determines is or may be required. In the event the
City suspends further processing of Applicant's Application for the
reason provided herein, the "Force Majeure" provision of the LOA shall
apply and the time for performance by the City under the LOA shall be
extended eq ual to the time taken by the Applicant to deposit said amount
with the City. Applicant shall pay any and all additional costs for the
additional work agreed upon by the Applicant pursuant to the paragraph
1.2.3 of this Agreement.
1.2.4. Reductions in Scope of Work. City may independently, or Upon request from
Consultant, from time to time reduce the Services to be performed by the
Consultant under this Agreement. Upon doing so, City and Consultant agree to
meet in good faith and confer for the purpose of negotiating a corresponding
reduction in the compensation associated with said reduction. Upon failure to
agree, the Fixed Fee may be unilaterally reduced by the City by the amount of
time and materials budgeted by Consultant for the Services deleted.
1.2.5 Duty to City. Consultants Obligations under this Agreement are to and for the
primary benefit of the City.
1.2.6 No 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.
1.2.7 Communication to Applicant. Consultant, except with the express consent of the
City, shall not communicate directly to the Applicant except in the presence of
Village 8 West and 9 PFFP 3-Party Agreement
Page 3
17-11
the City or by writing, an exact copy of which is simultaneously provided to City.
The Consultant may request such meetings with the Applicant to ensure the
adequacy of services perfonned by Consultant, approval of such meetings shall
be in the sole discretion of the City.
2.. Compensation of Consultant.
2.1 Aoolicant's Duty to Pav. Applicant shall compensate Consultant for all services
rendered by Consultant without regard to the conclusions reached by the Consultant, and
according to the terms and conditions set forth in Exhibit C adjacent to the governing
compensation relationship indicated by a "checkmark" next to the appropriate
arrangement
2.2 Method ofPavment. Applicant's obligation to pay Consultant shall be accomplished by
paying said compensation to the City, within 30 days of Consultant's billing, or in
accordance with the security deposit provisions of Paragraph 2.4 and Exhibit C, if
checked. Applicant shall not make any payments of compensation or otherwise directly
to the Consultant.
2.3 Remittance ofPavment to Consultant. Upon receipt of payment from Applicant by the
City, City shall promptly, not later than 15 days, or in accordance with the Bill
Processing procedure in Exhibit C, if checked, pay said amount to the Consultant. City is
merely acting in the capacity as a conduit for payment, and shall not be liable for the
compensation unless it receives same from Applicant.
2.4 Security for Payment to Consultant.
2.4.1 Deposit. As security for the payment of Consultant by Applicant, Applicant
shall, upon execution ofthis 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 hereinafter set forth
2.4.1.1 Separate Accounts. 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.
2.4.2 Additional Deposits. 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
Village 8 West and 9 PFFP 3-Party Agreement
Page 4
17-12
so, Applicant shall, within 30 days pays said amount ("Supplemental Deposit
Amount") to City. Said Supplement Deposit Amount or Amounts shall be
governed by the same terms of trust governing the original Deposit.
2.4.3 Other Terms of Deposit Trust.
2.4.3.1
Interest. All interest earned on the Deposit Amount, if any, shall
accrue to the benefit of, and be used solely for, Trust purposes.
2.4.3.2 Remaining Funds. 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 the
resolution and settlement of any claims resulting therefrom.
2.4.3.3
Notification of Disbursement. Applicant shall be notified within 30
days after of the use of the Deposit in any manner. Nothing herein
shall invalidate use of the Deposit in the manner herein authorized.
2.4.4 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. In such
an event, the "Force Majeure" provisions ofthe LOA shall apply and the time for
performance by the City under the LOA shall be extended equal to the time taken
by Consultant, City and Applicant to reach an agreement or otherwise resolve the
issue concerning the compensation of Consultant.
2.4.5. Upon reaching a milestone identified in Exhibit C, Consultant shall prepare and
present to City and Applicant for approval, an invoice for all services performed
hereunder by Consultant for that milestone, and imy and all other materials
reasonably requested by City and Applicant. Each such invoice shall provide the
percent complete for each task described in Exhibit "C". Back up for
reimbursable expenses shall be provided by Consultant upon request of City or
Applicant. Each invoice shall include a statement that it has been reviewed by
the proj ect manager and that the work invoiced has been completed in accordance
with the schedule and tasks outlined in Exhibit "A". If the Consultant lacks
information from the City or Applicant required to complete such tasks,
Consultant should so state.
Village 8 West amI 9 PFFP 3-Party Agreement
Page 5
11-13
3. Insurance. Consultant shall not begin work under this Agreement until it has: (i) obtained, and
upon the City's request provided to the City, insurance certificates reflecting evidence of all
insurance required in this Section 3; (ii) obtained City approval of each company or companies;
and (iii) confirmed that all policies contain the specific provisions required by this Section.
3.1 Tvpes of Insurance. At all times during the term of this Agreement, Consultant shall
maintain insurance coverage as follows:
3.1.1 Statutory Worker's Compensation Insurance and Employer's Liability Insurance
coverage in the amount set forth in the attached Exhibit A, Paragraph 10.
3.1.2 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 or
rented by Consultant.
3.1.1 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.
3.2 Policv Endorsements Required.
3.2.1 Additional Insureds. City of Chu1a Vista, its officers, officials, employees, agents
and volunteers approved by the City, and Applicant are to be mimed as additional
insureds with respect 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 ofthe Consultant, including
providing materials, parts or equipment furnished in connection with such work
or operations.
3.2.2 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 approved by the City. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, or volunteers approved
by the City is wholly separate from the insurance of the Consultant and in no way
relieves the Consultant from its responsibility to provide insurance.
3.2.3 Cross-Liability Coverage. An endorsement or intrinsic clause treating each
insured as a separate entity, such that, in the event of claim by one ofthe insureds
for which another insured covered by the same policy may be held liable, the
Village 8 West and 9 PFFP 3-Party Agreement
Page 6
11-14
insured against whom the claim is made is covered in the same manner as if
separate policies had been issued.
3.2.4 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.
3.2.5 Cancellation. The insurance policies required must be endorsed to state that
coverage will not be canceled by either party, except after thirty (30) 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.
3.3 Proof ofInsurance Coverage. Consultant shall furnish the City with original certificates
and amendatory endorsements atIecting coverage required. The endorsements should be
on insurance industry forms, provided those endorsements or policies conform to the
contract requirements. 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.
3.4 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the option ofthe City, either the insurer will
reduce or eliminate such deductibles or self-insured retentions as they pertain to the City,
its oflicers, officials, employees and volunteers approved by the City; or the Consultant
will provide a financial guarantee satisfactory to the City guaranteeing payment oflosses
and related investigations, claim administration, and defense expenses.
3.5 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.
3.6 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.
4 [Intentionally Omitted.1
5. Additional Obligations of 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
Village 8 West and 9 PFFP 3-Party Agreement
Page 7
17-15
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 ProperlY Access. The Applicant hereby grants permission to the City and Consultant to
enter and access the Property, to take any borings, make any tests, conduct any surveys or
reconnaissance necessary to deliver the Services of Consultant, subject to the approval of
the Applicant. Consultant shall promptly repair any damage to the subject property
occasioned by such entry and shall indemnify, defend, and hold Applicant harmless from
all loss, cost, damage, expenses, claims, and liabilities in connection with or arising from
any such entry and access.
5.3 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.
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 ofInterest.
7.1 Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A,
Paragraph 9, as an "FPPC tiler", 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.
Village 8 West and 9 PFFP 3-Party Agreement
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7.4 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 tenn of this
Agreement which would constitute a conflict of interest as prohibited by the Fair Political
Practices Act.
7.5 Duty to Advise 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 ofan 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 Applicant or by any other party as a result of
Consultant's performance of this Agreement. Consultant promises to advise City of any
such promise that may be made during the Term of this Agreement, or for 12 months
thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited
Interest within the Term of this Agreement, or for 12 months after the expiration of this
Agreement.
Consultant may not conduct or solicit any business for any party to this Agreement, or for
any third party which may be in conflict with Consultant's responsibilities under this
Agreement.
Village 8 West and 9 PFFP 3-Party Agreement
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8. Termination of Agreement.
8.1 Termination for Breach. This agreement may be terminated by the City or Applicant 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. In the event of such termination by the City or Applicant,
the Applicant agrees that all of the "Force Majeure" provisions of the LOA shall apply
until such time as an agreement has been entered into between the Applicant and City for
the Work to be completed by another suitable consultant. The City and Applicant agree
to use best faith efforts to promptly retain another suitable consultant and that time is of
the essence under such circumstances.
8.2 City's Right to Terminate Agreement for Convenience. Notwithstanding any other
section or provision ofthis Agreement, the City or Applicant shall have the absolute right
at any time to terminate this Agreement or any work to be performed pursuant to this
Agreement. In the event of such termination by the City or Applicant, the Applicant
agrees that all of the "Force Majeure" provisions of the LOA shall apply until such time
as an agreement has been entered into between the Applicant and City for the Work to be
completed by another suitable consultant. The City and Applicant agree to use best faith
efforts to promptly retain another suitable consultant and that time is of the essence under
such circumstances.
8.2.1 Compensation Upon Termination for Convenience. In the event of termination of
this Agreement by the City or Applicant in the absence of default of the
Consultant, the Applicant shall pay the Consultant in the manner identified in
Section 2 for the reasonable value ofthe services actually performed by the
Consultant up to the date of such termination, less the aggregate of all sums
previously paid to the Consultant for services performed after execution of this
agreement and prior to its termination.
8.3 Waiver of Claims for Compensation. The Consultant hereby expressly waives any and
all claims for damage or compensation arising under this Agreement, except as set forth
herein, in the event of such termination.
8.4 Production of Documents. In the event of termination of this Agreement, and upon
demand of the City, the Consultant shall deliver to the City, all field notes, surveys,
studies, reports, plans, drawings and all other materials and documents prepared by the
Consultant in performance of this Agreement, and all such documents and materials shall
be the property of the City; provided however, that the Consultant may retain copies for
Village 8 West and 9 PFFP 3-Party Agreement
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their own use and the City shall provide a copy, at Applicant's cost, of all such documents
to the Applicant.
9. Indemnity.
9.1 General Requirement. Except for liability for Professional Services covered under
Section 9.2, Consultant shall defend, indemnifY, protect and hold harmless the City, its
elected and appointed officers and employees, ant! Applicant 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 or sole
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, employees, or Applicant
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.
9.2 Professional Services. For those professionals who are required to be licensed by the
state (e.g. architects, landscape architects, surveyors and engineers) ("Design
Professionals"), Design Professionals shall defend, indemnify and hold the City, its
officials, officers, employees, volunteers, agents, and Applicant 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 any negligence, errors or omissions,
recklessness, or willful misconduct of Design Professional, its officials, officers,
employees, agents, consultants, and contractors arising outof or in connection with the
performance ofthe Design Professional's Services. 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, employees, or Applicant which may be in
combination with the active or passive negligent acts or omissions of the Design
Professional, its employees, agents or officers, or any third party. The Design
Professional's duty to indemnifY, protect and hold harmless shall not include any claims
or liabilities arising from the sole negligence or sole willful misconduct ofthe City, its
agents, officers or employees. This section in no way alters, affects or modifies the
Design Professional's obligation and duties under this Agreement.
Village 8 West and 9 PFFP 3-Party Agreement
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9.3 Costs of Defense and Award. Included in the obligations in Sections 9.1 and 9.2, above,
is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any
and all aforesaid suits, actions or other legal proceedings of every kind that may be
brought or instituted against the City, its directors, officials, officers, employees, agents,
volunteers, and/or Applicant. Consultant shall pay and satisfy any judgment, award or
decree that may be rendered against City or its directors, officials, officers, employees,
agents, volunteers, and/or Applicant for any and all legal expense and cost incurred by
each of them in connection therewith.
9.4 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, volunteers, and/or Applicant.
9.5 Declarations. Consultant's obligations under this Section 9 shall not be limited by any
prior or subsequent declaration by the Consultant.
9.6 Enforcement Costs. Consultant agrees to pay any and all costs City and/or Applicant
incur( s) enforcing the indemnity and defense provisions set forth in this Section 9.
9.7 Survival. Consultant's obligations under this Section 9 shall survive the termination of
this Agreement.
9.8 Applicant to Indemnify City.
9.8.1 Indemnification for Compensation. 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.
9.8.2 Other Provisions Apply. The obligations identified in Sections 9.3 through 9.7
shall be obligations of the Applicant to the City as if the Applicant were the
Consultant for the purposes of this Section 9.8.
10. Miscellaneous.
10.1 Headings. All article headings are for convemence only and shall not affect the
interpretation of this Agreement.
10.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter
gender includes the masculine and the feminine genders and (ii) the singular number
includes the plural number.
Village 8 West and 9 PFFP 3-Party Agreement
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10.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless
otherwise stated, to a section this Agreement.
10.4. Incorporation of Recitals. All recitals herein are incorporated into this Agreement and
are made a part hereof.
10.5 Covenants and Conditions. All provlSlons of this .Agreement expressed as either
covenants or conditions on the part of the City or the Consultant, shall be deemed to be
both covenants and conditions.
10.6 Integration. This Agreement and the Exhibits and references incorporated into this
Agreement fully express all understandings of the Parties concerning the matters covered
in this Agreement. No change, alteration, or modification of the terms or conditions of
this Agreement, and no verbal understanding of the Parties, their officers, agents, or
employees shall be valid unless made in the form of a written change agreed to in writing
by both Parties or an amendment to this Agreement agreed to by both Parties. All prior
negotiations and agreements are merged into this Agreement.
10.7 Severability. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render any other provision of this Agreement unenforceable, invalid,
or illegal. 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 remainder of this
Agreement shall remain in full force and effect and the parties hereto shall negotiate in
good faith and agree to such amendments, modifications, or supplements to this
Agreement or such other appropriate action as shall, to the maximum extent practicable
in light of such determination, implement and give effect to the intentions of the parties
as reflected herein.
10.8 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be
advised by counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether or not to seek advice of counsel with respect to
this Agreement is a decision which is the sole responsibility of each Party. This
Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting of the Agreement.
10.9 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the
main body of this Agreement and the Exhibits, the main body ofthis Agreement shall
control. If a conflict exists between an applicable federal, state, or local law, rule,
regulation, order, or code and this Agreement, the law, rule, regulation, order, or code
shall control. Varying degrees of stringency among the main body of this Agreement, the
Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the
most stringent requirement shall control. Each Party shall notify the other immediately
Village 8 West and 9 PFFP 3-Party Agreement
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upon the identification of any apparent conflict or inconsistency concerning this
Agreement.
10.10 Prompt Performance. Time is of the essence of each covenant and condition set forth in
this Agreement.
10.11 Good Faith Performance. The Parties shall cooperate with each other in good faith, and
assist each other in the performance of the provisionsofthis Agreement.
10.12 Further Assurances. City, Applicant, and Consultant each agree to execute and deliver
such additional documents as may be required to effectuate the purposes of this
Agreement.
10.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by
this reference:
Exhibit A
Exhibit B
Exhibit C
10.14 Compliance with Controlling Law. The Consultant shall comply with all laws,
ordinances, regulations, and policies of the federal, state, and local govermnents
applicable to this Agreement, including California Labor Code section 1720 as amended
in 2000 relating to the payment of prevailing wages during the design and
preconstruction phases of a project, including inspection and land surveying work. In
addition, the Consultant shall comply irmnediately with all directives issued by the City
or its authorized representatives under authority of any laws, statutes, ordinances, rules,
orregulations. The laws ofthe State of California shall govern and control the terms and
conditions of this Agreement.
10.15 Jurisdiction. Venue. and Attornev Fees. 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. The prevailing Party in any such suit or
proceeding shall be entitled to a reasonable award of attorney fees in addition to any
other award made in such suit or proceeding.
10.16 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
Village 8 West and 9 PFFP 3-Party Agreement
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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.
10.17 Third Partv Relationships. Nothing in this Agreement shall create a contractual
relationship between City and any individual, entity, or other not a party to this
Agreement.
10.18 Non-Assignment. The Consultant shall not assign the obligations under this Agreement,
whether by express assignment or by sale of the company, nor any monies due or to
become due, without the City's prior written approval. Any assignment in violation of
this paragraph shall constitute a Default and is grounds for immediate termination of
this Agreement, at the sole discretion of the City. In no event shall any putative
assignment create a contractual relationship between the City and any putative assignee.
10.19 Successors in Interest. This Agreement and all rights and obligations created by this
Agreement shall be in force and effect whether or not any Parties to the Agreement have
been succeeded by another entity, and all rights and obligations created by this
Agreement shall be vested and binding on any Party's successor in interest.
10.20 Independent Contractors. The Consultant, any contractors, subcontractors, and any
other individuals employed by the Consultant shall be independent contractors and not
agents of the City. Any provisions of this Agreement that may appear to give the City
any right to direct the Consultant concerning the details of performing the Services
under this Agreement, or to exercise any control over such performance, shall mean only
that the Consultant shall follow the direction of the City concerning the end results of
the performance.
10.21 Consultant not authorized to Represent Citv. 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.
10.22 Approval. Where the consent or approval of a Party is required or necessary under this
Agreement, the consent or approval shall not be unreasonably withheld.
10.23 No Waiver. No failure of either the City, Applicant, or Consultant to insist upon the
strict performance by the other of any covenant, term or condition of this Agreement,
nor any failure to exercise any right or remedy consequent upon a breach of any
covenant, term, or condition of this Agreement, shall constitute a waiver of any such
breach of such covenant, term or condition. No waiver of any breach shall affect or alter
this Agreement, and each and every covenant, condition, and term hereof shall continue
in full force and effect to any existing or subsequent breach.
Village 8 West and 9 PFFP 3-Party Agreement
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10.24 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.
10.24.1 Entitlement to Subsequent Notices. No notice to or demand on the parties for
notice of an event not herein legally required to be given shall in itself create
the right in the parties to any other or further notice or demand in the same,
similar or other circumstances.
10.25 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.
10.26 Ownership, Publication. Reproduction and Use of Material. All reports, studies,
information, data, statistics, forms, designs, plans, procedures, systems and any other
materials or properties produced under this Agreement shall be the property of the City
and Applicant for either party's use or benefit. 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 ofthe 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. Consultant shall not be held liable for any modification made by the City or
Applicant without Consultant's direction or knowledge or reuse by the Applicant or
City of such deliverables for purposes outside this Agreement.
10.27 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.
10.28 Signing Authoritv. 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 and agrees to hold the other Party or Parties hereto
harmless if it is later determined that such authority does not exist.
Village 8 West and 9 PFFP 3-Party Agreement
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Signature Page
Now therefore, the parties hereto, having read and understood the terms and conditions of
this agreement, do hereby express their consent to the terms hereofby setting their hand hereto on the
date set forth adjacent thereto. .
Dated:
City of Chula Vista
by:
Attest:
Donna Norris
City Clerk
Approved as to Form:
Bart Miesfeld
City Attorney
Dated:
Consultant:
by:
Dated:
,. I h-.-
by: VV'<..of
Village 8 West and 9 PFFP 3-Party Agreement Page 17
17-25
Signature Page
Now therefore, the parties hereto, having read and understood the terms and conditions of
this agreement, do hereby express their consent to the terms hereofby setting their hand hereto on the
date set forth adjacent thereto.
Dated:
City of Chula Vista
by:
Attest:
Donna Norris
City Clerk
Approved as to Fonn:
Bart Miesfeld
City Attorney
Dated:
Consultant:
Ya ciJ,c fi,1un,' (; f,,1 Cot1svi-l<"J
by:
;1~.l' b - l____
I
Dated:
Applicant:
by:
Village 8 West and 9 PFFP 3-Party Agreement
Page 18
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Exhibit A
Reference Date of Agreement:
Effective Date of Agreement:
City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Consultant: PMC
Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
( X) Corporation
Address:
2729 Prospect Park Drive, Suite 220
Ranch Cordova, CA 95670
Applicant: Otay Land Company LLC,
Business Form of Applicant:
( ) Sole Proprietorship
( ) Partnership
( X) Corporation
Address:
1903 Wright Place, Suite 220
Carlsbad, CA 92008
1. Property (Commonly known address or General Description):
The project site is located (see map) 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 a portion of Village 8 (now known as Village 8 West) and
Village 9. More specifically, the geographic areas are as described below and sho\'lTI on
the site plan in Attachment A:
Village 8 West and 9 PFFP 3-Party Agreement
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I
I
I
1_
. The portion of Village 8 that is included in this project is bound by the Otay River
Valley to the south, Rock Mountain RoadJMain Street to the north, the remainder of
Village 8 (Village 8 East) to the east and Village 4 to the west.
. Village 9 is bound by the Otay River Valley to the south, Rock Mountain
Road/Hunte Parkway to the north, the proposed University/RTP site to the east and
SR-125 to the west.
2. Project Description ("Project"):
Preparation of Public Facilities Financing Plans (PFFP), including a Fiscal Impact Analysis (FIA),
for Villages 8 West and 9 as required by the City's Grow1h Management Ordinance in conjunction
with the concurrent processing of the Sectional Planning Area (SPA) Plans for both villages.
3. Entitlements applied for: Village 8 West SPA Plan and Tentative Map: Village 9 SPA Plan
and Tentative Map.
4. General Nature of Consulting Services ("Services--General")
Prepare two Public Facilities Financing Plans (PFFP) and Fiscal Impact Analyses (FIA) for
the Village 8 West and Village 9 SPA Plans to identify the amount, location, timing and financing
mechanisms necessary to build and deliver required public facilities and services to the project, and
to identify the overall, net fiscal impact that the project will have on the City in terms ofrevenues
and expenditures and to meet the City of Chula Vista Municipal Code Requirements.
5. Detailed Scope of Work ("Detailed Services"):
The following tasks shall be performed by the Consultant to the reasonable satisfaction ofthe
Director of Development Services:
Public Facilities Financing Plans (PFFP) for Villages 8 West and Nine
Task A: Preliminary Research/Data Gathering
Gather and review all available data regarding the Village 8 West and Village 9 projects,
including the existing Otay Ranch General Development Plan, and related documents; the technical
studies prepared for the project; PFFP's for other eastern Chula Vista projects; Master Facilities
plans; related tentative maps; related City Resolutions; current environmental impact reports with all
related back-up technical reports; and any other environmental documentation including prior EIR's.
Hold meetings with City staff, the applicant or their consultants, and affected agencies as necessary
to gather and review data.
Village 8 West and 9 PFFP 3-Party Agreement
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Task B: Identify and Describe Facilities and Services Impact.
Following the review of the available data, identify in writing, (at first draft of the PFFP)
facilities and services that may be impacted by the SPA Plans pursuant to the adopted City Growth
Management Threshold Standards; provide in writing, (at first draft ofthe PFFP) a preliminary cost
estimate for the new and/or upgraded infrastructure and services required both on-site and off-site to
support the Village 8 West and Village 9 SPA Plans; and identify costs, (at first draft of the PFFP)
and financing methods for that infrastructure and services. The cost estimate for the new and/or
upgraded infrastructure and services analysis shall summarize the impact fees and any fee credits as
applicable, and shall coordinate with and incorporate any other relevant fiscal impact data,
evaluations or recommendations arising from the Fiscal Impact Analysis (FIA).
Task C: Independent Evaluation and Recommendations to Mitigate Impacts.
Conduct an independent evaluation of the Project's compliance with the adopted City
Threshold Standards and provide in writing, (at first draft ofthe PFFP Amendment) an assessment of
the probable short- and long-term impacts as well as recommendations to mitigate impacts and
maintain compliance with the City's Growth Management Threshold Standards.
Task D: Attendance at meetings and other coordination
The Consultant (and any of their subcontractors) shall attend one public forum, and up to two
Planning Commission hearings and two City Council hearings. These are in addition to meetings
with City staff, coordination with EIR consultant, or others, as the Development Services
Department deems necessary to complete the work. Attendance at said meetings or other methods of
coordination is required of the Consultant on an as needed basis as determined by the City, given
sufficient lead-time (minimum five days) for the Consultant to schedule such coordination. It is
further anticipated that informal coordination will take place between the Consultant and the EIR
consultant at various times throughout the process.
Task E: Preparation of Preliminary, Second and Final PFFP Documents
Prepare a Preliminary, Second and Final Public Facilities Financing Plans (PFFP) for the
Village 8 West and Village 9 projects, including but not limited to the statistical tables, exhibits, text,
public facilities and services phasing, methods of financing public facilities and services, and other
pertinent items to ensure that the project would have the necessary infrastructure and services prior to
or concurrent with need.
The Consultant shall deliver the requisite number of copies, which will include incorporation
of staff comments, ofthe Preliminary, Second and Final PFFP Amendment documents as set forth in
Paragraph 6.
Village 8 West and 9 PFFP 3-Party Agreement
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Fiscal Impact Analvsis (FIA)
Task F: Preliminary Research
Gather and review all available and relevant data regarding the Village 8 West and Village 9
SPA Plan's impacts upon the operation and maintenance budgets ofthe City and its General Fund,
and considering the current information associated with the City's Fiscal Year 2009/2010 and
2010/2011 budgets. Gather and review information from the Applicant regarding the land uses,
residential product types, and phasing and build-out schedules for the SPA Plans. This shall include
as many meetings with City staff and administrators, and the applicant or their consultants as are
necessary to gather and review the data.
Task G: Identify and Describe Fiscal Impacts
Conduct an analysis utilizing City ofChula Vista's current fiscal model. Update the model
with Fiscal-Year 2009/2010 and 2010/2011 data and customize it as necessary to fit the
characteristics ofthe Village 8 West and Village 9 projects. Analyze and address the fiscal impacts
that the projects will have upon the City's operation and maintenance budgets considering the costs
and revenues to the City in providing infrastructure and services to, and as a result of, the project.
Contacts with City Department heads and staff will be conducted as necessary to help identify any
unique conditions or problems with providing infrastructure and services to the project.
The analyses shall be presented (at first draft of the PFFP) in both written and tabular format,
and shall present City revenues and expenditures annually based upon the project's development
absorption schedule, and the according fiscal surpluses and deficits.
Task H: Incorporation ofFIAs into Draft PFFP document
Prepare Preliminary Fiscal Impact Analysis Reports for incorporation into the PFFP
document for review by City staff and any affected agency in the requisite number of copies and per
the schedule presented in Paragraph 6. Prepare Second Fiscal Impact Analyses to be incorporated
into the PFFP documents. Prepare Final Fiscal Impact Analyses to be incorporated into the PFFP
documents.
Task I: Revise Drafts as City Determines Necessary
The consultant shall prepare revisions to the satisfaction of City staff to PFFP documents
based upon comments received from City statI, Planning Commission and City Council and any
other comments from outside agencies or individuals. Said revisions shall be incorporated into the
appropriate draft or final document as outlined in paragraph 6 below under "Dates or Time Limits for
Delivery of De live rabies".
Village 8 West and 9 PFFP 3-Party Agreement
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Task J: Draft Conditions of Approval
The Consultant shall collaborate with city staff to prepare the draft conditions of approval
for the Village 8 West amI Village 9 projects based on the threshold analysis of the PFFPs.
6. Schedule, Milestone, Time-Limitations within which to Perform Services.
Date for Commencement of Consultant Services:
(X) Same as Etfective Date of Agreement
Dates or Time Limits for Delivery of Deliverables:
Deliverable No.1:
Deliverable No.2
Deliverable No.3:
Deliverable No.4:
Deliverable No.5:
Delivery ofthe Preliminary PFFPs for staff and Applicant review and
distribution in the form of 25 copies (each).
Due date: Maximum of six weeks after City's notice to proceed.
Delivery of the revised Second Draft PFFPs containing all staff
comments on the Preliminary Draft in the form of25 copies (each).
Due date: Maximum of three weeks after the Consultant receives
comments back from the City's review of the preliminary draft.
Delivery of the Final PFFPs (including the Fiscal Impact Analysis
Report) for public hearings in the form of 25 copies and a computer
diskette file formatted for Microsoft Word.
Due date: Maximum of one week after City delivers pre-press
(screencheck) comments to the Consultant.
Delivery of City Council approved PFFPs (including the Fiscal
Impact Analysis Report) to City Staff in the form of 10 copies plus
one master copy set up to print additional copies to be incorporated
into binders, plus draft conditions of approval.
Due date: Maximum of two weeks following City Council hearing.
Delivery of draft conditions of approval
Village 8 West and 9 PFFP 3-Party Agreement
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Due date: Maximum of two weeks after the consultant delivers pre-
press (screencheck) copy of PFFPs (including the Fiscal Impact
Analysis Reports).
Dates for completion of all Consultant services: Ten months from the effective date of
Agreement or as extended by the Director of Development Services in the Director's sole discretion.
7. Documents to be provided by Applicant to Consultant:
(X) site plans ex) grading plans ( ) architectural elevations (X) project description.
(X ) other:
_technical studies, including water, wastewater, drainage, traftic; phasing plan
S. Contract Administrators.
City: Scott Donaghe
Principal Planner
City of Chula Vista Development Services
276 Fourth Avenue
Chula Vista, CA 91910
Applicant: Curt Noland
Otay Land Company
1903 Wright Place, Suite 220
Carlsbad, CA 92008
Consultant: Philip O. Carter
PMC
2729 Prospect Park Drive, Suite 220
Rancho Cordova, CA 95670
Village 8 West and 9 PFFP 3-Party Agreement
Page 24
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9. Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest
Code:
(X) Not Applicable. Not an FPPC Filer.
( )
Category No. 1.
( )
Category No.2.
( )
Category No.3.
( )
Category No.4.
( )
Category No. 5.
( )
Category No. 6.
( )
Category No.7.
10. Insurance Requirements:
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.
(X) Statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
() Errors and Omissions insurance: None Required (included in Commercial
General Liability coverage).
(x) Errors and Omissions insurance: $250,000 (not included in Commercial General
Liability coverage).
Village 8 West and 9 PFFP 3-Party Agreement
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Exhibit B
Additional Recitals
WHEREAS, the Applicant and City have entered into a University Villages/Otay Ranch
Project Staffing and Processing Agreement on June 23, 2009 (known as the "Processing
Agreement") for the retention of professional staffby the City for processing the Entitlements for the
Property. Notwithstanding however, City and Applicant acknowledge and agree that the provisions
of this Agreement with respect to the payment ofthe Consultant shall supersede any provisions of
the Processing Agreement pertaining to the payment of services for professional staff.
WHEREAS, On June 10,2010, the Planning Division issued a Request for Proposals (RFP)
for the preparation of PFFPs for Villages 8 West and 9; and,
WHEREAS, City staff reviewed submitted proposals from six firms and is recommending
the selection of PMC who is qualified to prepare the PFFPs because of their prior work preparing
PFFPs within the Otay Ranch, the proposed cost, and their knowledge of the project; and,
WHEREAS, the Contract Administrator has negotiated the details of this Agreement in
accordance with procedures set forth in Sections 2.56.110 of the Chula Vista Municipal Code.
Village 8 West and 9 PFFP 3-Party Agreement
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Exhibit C
Compensation Schedule and Deposit: Terms and Conditions.
(X) Single Fixed Fee Arrangement.
For performance of all of the General and Detailed Services of Consultant as herein
required, Applicant shall pay a single fixed fee in the amounts and at the times or milestones set
forth below:
(X) Single Fixed Fee Amount: $82,720
Milestone or Event
Amount or Percent
of Fixed Fee
1. Signing of this agreement by all parties and upon the
. request of the contractor.
($12,408) 15%
2. Deliverable #1 - Submittal of Preliminary PFFP (including
Fiscal Impact Analysis)
($28,952) 35%
3. Deliverable #2 - Submittal of Second PFFP (including
Fiscal Impact Analysis Report)
($16,544) 20%
4. Deliverable #3 - Submittal of Final PFFP
(including the Fiscal Impact Analysis Report)
($16,544) 20%
5. Deliverable #4 - Completion of all remaining tasks as
outlined in Exhibit "A" to this agreement (retention)
6. 25% Contingency Fee · (for additional work if requested
by the City, and agreed to by the applicant, pursuant to Section
1.2.3)
($8,272) 10%
($12,408) 15%
.
The Development Services Director in in accordance with the provisions set forth in
Section 1.2.3 of this Agreement, may trom time to time, 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 PFFPs and FlAs ("Additional
Services"). The cost of Additional Services in connection with the PFFP and FIA
documents shall not exceed 15% of the total contract amount.
Village 8 West and 9 PFFP 3-Party Agreement
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In the event progress on any milestone is stopped or delayed, for reasons outside
Consultant's control, for longer than thirty (30) days, Consultant may invoice for the amount of
work completed at that point, and in such event, Applicant shall be responsible for making
payment up to the point of stoppage or delay for those services which have been performed in
accordance with this Agreement.
( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the General and Detailed Services of
Consultant as are separately identified in Exhibit C, under the category labeled "Phased Fixed Fee
Arrangement", Applicant shall pay the fixed fee associated with each phase of Services, in the
amounts and at the times or milestones set forth hereinbelow ("Phase Fixed Fee Arrangement").
Consultant shall not commence Services under any Phase, and shall not be entitled to the.
compensation for a Phase, unless Applicant shall have issued a notice to proceed to Consultant as to
said Phase.
Fee for
Phase Said Phase
1.
$
2.
$
3.
$
4.
$
Village 8 West and 9 PFFP 3-Party Agreement
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( ) Time and Materials
For performance of the General and Detailed Services of Consultant as hercin required,
Applicant shall pay Consultant for the productive hours of time and material spent by Consultant in
the performance of said Services, at the rates or amounts set forth hereinbelow according to the
following terms and conditions:
() Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Consultant of time and materials in excess of said
Maximum Compensation amount, Consultant agrees that Consultant will perform all of the
General and Detailed Services herein required of Consultant for $
including all Materials, and other "reimburseables" ("Maximum Compensation").
( ) Limitation without Further Authorization on Time and Materials Arrangement
At such time as Consultant shall have incurred time and materials equal to
("Authorization Limit"), Consultant shall not be entitled to any
additional compensation without further authorization issued in writing and approved by the
City Council. Nothing herein shall preclude Consultant from providing additional Services
at Consultant's own cost and expense.
Rate Schedule
Category of Employee
of Consultant
Houdy
Rate
Principal
Principal Associate
Survey Manager
Engineer/S urveryor
Technician
Clerical
$165
$130
$130
$100
$90
$60
( ) Hourly rates may increase by 6% for services rendered after June, 1992, if delay in providing
services is caused by City or Applicant.
Village 8 West and 9 PFFP 3-Party Agreement
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Materials Separately Paid For by Applicant
Cost or Rate
( ) Materials
Actual
Reports
Copies
( ) Travel
( ) Printing
( ) Postage
( ) Delivery
( ) Long Distance Telephone Charges
( ) Other Actual Identifiable Direct Costs
Actual
Actual
Actual
Actual
Actual
Actual
Deposit
( ) Deposit Amount:
( ) Use of Deposit to Pay Consultant.
Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this paragraph is
"checked", upon City's receipt of billing by Consultant, and determination by City in good faith that
Consultant's billing is proper, a judgment for which Applicant agrees to hold City harmless and
waive any claim against City, City shall pay Consultant's billing from the amount of the Deposit. If
Applicant shall protest the propriety of a billing to City in advance of payment, City shall consider
Applicant's protest and any evidence submitted prior to the due date for the payment of said bill by
Applicant in making its good faith determination of propriety.
( ) Use of Deposit as Security Only; Applicant to Make Billing Payments.
Upon determination by City made in good faith that 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
( ) Q uarterl y
Village 8 West and 9 PFFP 3-Party Agreement
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(X ) Other: Upon completion of milestones identified herein
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number:
Village 8 West and 9 PFFP 3-Party Agreement
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