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HomeMy WebLinkAbout2007/01/16 Item 4 CITY COUNCIL AGENDA STATEMENT ~f:.. (llY OF ~~ CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: January 16, 2007 Item~ a) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN AGREEMENT WITH THE GAS TECHNOLOGY INSTITUTE, A NOT FOR PROFIT RESEARCH & DEVELOPMENT ORGANIZATION, TO ANALYZE ENERGY, ECONOMIC AND ENVIRONMENTAL IMPACTS OF BOTH PLANNED AND ALTERNATIVE BUILDING DESIGN OPTIONS FOR THE DEVELOPMENT OF THE WAKELAND AFFORDABLE HOUSING PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENTS b) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN AGREEMENT WITH THE GAS TECHNOLOGY INSTITUTE, A NOT FOR PROFIT RESEARCH & DEVELOPMENT ORGANIZATION, TO ANALYZE ENERGY, ECONOMIC AND ENVIRONMENTAL IMP ACTS OF BOTH PLANNED AND ALTERNATIVE BUILDING DESIGN OPTIONS FOR THE DEVELOPMENT OF THE CREEKSIDE VISTAS MIXED-USE RESIDENTIAL PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT ^ (l \y ACTING DIRECTOR OF CO~ITY DEVELOPMENT J.W\ \ INTERIM CITY MANAGER 'd I 4/5THS VOTE: YES D NO ~ BACKGROUND The San Diego Gas & Electric (SDG&E) Partnership Grant Program adopted on September 19, 2006 challenges staff to provide energy efficiency services for City, commercial and residential facilities through December 31,2008, In an effort to provide energy saving design inputs for the Wakeland affordable residential and Creekside Vistas mixed-use developments in western Chula Vista, staff is seeking to contract with the National Energy Center for Sustainable Communities (NECSe) and the Gas 4-1 January 16, 2007, Iteml Page 2 of 4 Technology Institute (GTI). NECSC and GTI will analyze the energy, economic and environmental impacts of both planned and alternative building design options, for these developments. The implementation of designs based upon these research findings will result in more energy efficient developments in western Chula Vista and reduce energy costs for residents of those developments, as mandated under the SDG&E Energy Partnership Grant Program. 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 Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION The Chula Vista City Council adopt the resolution approving the agreements between the City of Chula Vista and the Gas Technology Institute for the provision of analyzing energy, economic and environmental impacts of both planned and alternative building design options for the Wakeland Affordable Housing Project and the Creekside Vistas Mixed-Use Residential Project, and authorizing the Mayor to execute the agreements. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION Since March of 2006, staff has been working with the National Energy Center for Sustainable Communities (NECSC) to advance responsible use of energy reSOl)fces through the planning efforts of three master-planned developments in eastern Chula Vista. Today, staff is requesting approval of two agreements with GTI, a partner of the NECSC, which will extend these efforts to infill projects in western Chula Vista. These planning efforts are intended to accelerate the integration of renewable resources and cleaner, more efficient energy technologies and strategies into local commercial and residential development projects, resulting in more energy efficient developments and reduced energy costs for residents of those developments. In addition to the immediate benefits developed for the Wakeland and Creekside Vistas projects, the GTI recommendations will set a precedent for high quality energy efficient types of construction that can be provided throughout the City at a reasonable cost. The two development projects identified to become models for energy efficiency are as follows: 4-2 January 16, 2007, 1tem~ Page 3 of 4 Wakeland Affordable Housing Project Wakeland is interested in developing approximately 40 units for an affordable, family rental project on the fOrmer Tower Lodge Motel site located at 1501 Broadway within the Merged Chula Vista Redevelopment Project Area. The proposed project will benefit the surrounding area by providing residential units, which will serve primarily large families (3 bedroom units). and extremely low and very low-income households (30 to 50 percent of the AMI), meeting the City's critical needs for very low income housing. Wakeland has significant experience in developing in-fill affordable housing in redevelopment areas such as a 74-unit project ("Lillian Place") in the East Village .and ("Town Square Row Homes") a 6-unit, for-sale project in downtown National City. Wakeland is well qualified, and has demonstrated their desire and commitment to partner with the City and Chula Vista Redevelopment Corporation, to develop a project that meets the City's affordable housing objectives, and to work cooperatively with the public in the design of the project. For more information regarding the proposed development site, please refer to Exhibit A, attached. Creekside Vistas Mixed-Use Residential Project The Douglas Wilson Companies have received approvals to develop a mixed-use residential project on a vacant 5.5-acre site located at 912-944 Third Avenue. The project proposes construction of 167 multi-family residential units and 3,793 square feet of commercial/retail space. The Creekside Vista project represents the first significant urban infill project to occur in western Chula Vista since adoption of the General Plan The proposed project will benefit the surrounding area by ensuring that housing supply will accommodate future population growth, providing entry-level housing to first-time homebuyers, creating open space amenities and street level retail, and by eradicating a homeless camp that has been established on the property. The Douglas Wilson Company has significant experience in developing in-fill mixed-use projects in redevelopment areas such as The Mark, a $155 million full block, mixed-use development located in Downtown San Diego's East Village neighborhood, one block from the San Diego Padres Petco Park. The project includes a 33-story tower with 233 condominium units, ground floor retail space, and approximately 450 subterranean parking spaces. Additionally, The Douglas Wilson Companies was the managing general partner for the development of Symphony Towers, a 1.2-million-square-foot, two-tower hotel and office complex that includes a 34-story office building with 530,000 square feet of rentable space, a 264-room Marriott Suites Hotel, a five-level parking structure and the 2,255-seat Copley Symphony Hall. The project was built for $165 million in 1989 and is the largest private mixed-used project in downtown San Diego. The Douglas Wilson Company is well qualified and has demonstrated their desire and commitment to partner with the City and Chula Vista Redevelopment Corporation, to develop a project that meets the City's redevelopment objectives, and to work 4-3 cooperatively with the public in the design of the project. For more information regarding the proposed development site, please refer to Exhibit B, attached. Objective and Approach The objective of the proposed research project is to analyze energy, economic and environmental impacts of both planned and alternative building design options for the redevelopment sites. This project approach will entail modeling building envelope energy losses, internal loads, and space conditioning and ventilation for the planned residential structures. The modeling will consider 8,760 hour-by-hour measurements representing seasonal and time of day consumption of five types of energy including: . Electricity; . Natural Gas; . Cooling; . Heating; . Domestic Hot Water California's Title-24, 2005 residential building energy-efficiency standard will serve as the baseline for modeling minimum requirements for building energy efficiency. The software tools that will be used to conduct this analysis will include: . Building Energy Analyzer™ (BEA), - a product developed by GTI; . Energy-! OTM - a product developed by the Sustainable Building Industry Council BEA will be used to model energy, economic and environmental parameters for larger structures (multiple single family units) and Energy-!OTM will be used to model details of individual single family residential building floor plans. This project is in line with the City's and the NECSC's desired objective of conducting applied research that examines technological, economic, social and institutional barriers that prevent the use of existing energy-efficient technologies, materials and management practices that produce solutions to those barriers. The ultimate goal for the City and SDG&E, our private sector partner, is more energy efficient developments and reduced energy costs for residents of those developments. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. FISCAL IMP ACT Energy research funds in the amount of $137,014 ($55,839 for Wakeland; $83,957 for Creekside) have been appropriated for these agreements in the City's Conservation Fund under the San Diego Gas & Electric Energy Partnership Grant Program, as approved and adopted on December 12, 2006, for costs associated with the scope of work. There will be no impact to the City's General Fund. J:\COMMDEV\STAFF.REP\2007\Ol~16-07\agenda statement - gti (2).doc Prepared by: Denny Stone. Acting Asst. Director. Community Development Department Gustava Perez, Senior Community Development Specialist, Community Development Dept. 4-4 RESOLUTION NO. 2007- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN AGREEMENT WITH THE GAS TECHNOLOGY INSTITUTE, A NOT FOR PROFIT RESEARCH & DEVELOPMENT ORGANIZATION, TO ANAL YZE ENERGY, ECONOMIC AND ENVIRONMENTAL IMPACTS OF BOTH PLANNED AND ALTERNATIVE BUILDING DESIGN OPTIONS FOR THE DEVELOPMENT OF THE WAKELAND AFFORDABLE HOUSING PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENTS WHEREAS, on September 19, 2006, the City Council accepted the grant for the San Diego Gas & Electric (SDG&E) Partnership Program and appropriated funding for the 2006 calendar year of the SDG&E Partnership Program to 2007 fiscal year; and WHEREAS, the SDG&E Partnership Program grant budget has allocated $139,840.00 to the Gas Technology Institute, a 50 I c3 not for profit research and development organization, for professional services related to energy modeling; and WHEREAS, the City would like to retain the services of the Gas Technology Institute (GTI) to analyze energy, economic and environmental impacts of both planned and alternative building design options for the Wakeland affordable housing project located at ISO I Broadway; and WHEREAS, the project approach will errtail modeling building envelope energy loses, internal loads, and space conditioning and ventilation for the planned residential structures. The modeling will consider 8,760 hour-by-hour consumption of five types of energy including: electricity, natural gas, cooling, heating and domestic hot water; and WHEREAS, California's Title-24, 2005 residential building energy-efficiency standard will serve as the baseline for modeling minimum requirements for building energy efficiency; and WHEREAS, the modeling of alternatives will provide design input for specific western Chula Vista residential and mixed use developments that are targeted for construction in 2008; and WHEREAS, the design input will result in more energy efficient developments and reduced energy costs for residents of those developments; and WHEREAS, the results of the modeling and design input may be applied to reduce energy consumption and energy costs for residents of future developments throughout Chula Vista and the SDG&E service area; and 4-5 Council Resolution No. 2007 Page 2 WHEREAS, GTI will be retain for their services in an amount not to exceed $55,839; and WHEREAS, the City of Chula Vista's Community Development Department is investigating new opportunities for the development of energy-efficient affordable housing within the City's redevelopment area; WHEREAS, GTI 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 NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista approves the contract between the City of Chula Vista and the Gas Technology Institute for the provision of analyzing energy, economic and environmental impacts of both planned and alternative building design options for the Wakeland Affordable Housing Project and authorizing the Mayor to execute the agreement. Presented by Approved as to form by Ann Hix Acting Community Development Director J:\COMMDEV\ST AFF.REP\20U7\Ol-16-07\GTI\RESO - COUNClL.gri wakeland. doc 4-6 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: 1/" I c> 7 Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling and Consulting Services for the Wakeland affordable housing development at 1501 Broadway 4-7 Parties and Recital Paget s) Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting S"rvices This agreement (" Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph I, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, on September 19,2006, the City Council accepted the grant for the San Diego Gas & Electric (SDG&E) Partnership Program and appropriated funding for the 2006 calendar year of the SDG&E Partnership Program to 2007 fiscal year; and Whereas, the SDG&E Partnership Program grant budget has allocated $139,840.00 to the Gas Technology Institute, a 501c3 not for profit research and development organization, for professional services related to energy modeling; and Whereas, the City would like to retain the services of the Gas Technology Institute (GTI) to analyze energy, economic and environmental impacts of both planned and alternative building design options for the Wakeland affordable housing development located at 150 I Broadway; and Whereas, the project approach will entail modeling building envelope energy loses, internal loads, and space conditioning and ventilation for the planned residential structures. The modeling will consider 8,760 hour-by-hour consumption of five types of energy including: electricity, natural gas, cooling, heating and domestic hot water; and Whereas, California's Title-24, 2005 residential building energy-efficiency standard will serve as the baseline for modeling minimum requirements for building energy efficiency; and Whereas, the modeling of alternatives will provide design input for specific western Chula Vista residential and mixed use developments that are targeted for construction in 2008; and Whereas, the design input will result in more energy efficient developments and reduced energy costs for residents of those developments; and Page I 4-8 Whereas, the results of the modeling and design input may be applied to reduce energy consumption and energy costs for residents of future developments throughout Chula Vista and the SDO&E service area; and Whereas, OIl will be retain for their services in an amount not to exceed $55,839; and Whereas, the City ofChula Vista's Community DevelopmeI)< Department is investigating new opportunities for the development of energy-efficient affordable housing within the City's redevelopment area; and Whereas, OIl 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; (End of Recitals. Next Page starts Obligatory Provisions.) Page 2 4-9 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: l. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defmed Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph lO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard 0 f Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a 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. Page 3 4-10 F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to COII1J;llencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (l) Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: 1. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liabilitv or . Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence Page 4 4-11 Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the (:ity guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause 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. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. Page 5 4-12 (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a m,inimum offive (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. 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. Subcontractors Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject . to all of the requirements included in these specifications. G. Security for Performance (1) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, httn://""",,,w.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and 4-13 Page 6 which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate 4-14 Page 7 Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. All billings submitted by Consultant shall contain sufficient ~nformation as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph l7(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term This Agreement shall terminate when the Parties have complied with all executory provisions hereo f. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant Page 8 4-15 A. Consultant is Designated as an FPPC Filer If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. 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 fmancial interest other than the compensation promised by this Agreement. C. 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. D. Promise Not to Acquire Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. 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 of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. 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 any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 4-16 Page 9 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 in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnifY, protect and hold harmless the City, its elected and appointed officers and employees, and San Diego Gas and Electric Company 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 firms for whom Consultant is legally responsible in connection with the execution of the 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, employees and San Diego Gas and Electric Company. 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 and San Diego Gas and Electric Company 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. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnifY, protect and hold harmless the City, its elected and appointed officers and employees and San Diego Gas and Electric Company, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees and San Diego Gas and Electric Company. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees and San Diego Gas and Electric Company 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. Page 10 4-17 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective d;lte of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defmed Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material Page 11 4-18 All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject 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. " Consultant may publish or make available to interested public on a non-discriminatory basis, in a timely and reasonable manner, the results any or all of the information concerning the results of the defined services, which is the subject of this agreement, upon prior written consent of the City, which consent will not be unreasonably withheld." City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration 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 and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs 4-19 Page 12 In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defmed Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amolUlts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Othernise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. 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 herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and lUlderstanding 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. E. 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, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing LawNenue Page 13 4-20 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. (End of page. Next page is signature page.) 4-21 Page 14 Signature Page to Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City ofChula Vista By: Cheryl Cox, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: Gas Technology Institute By: 8f......, .[!J'L. fu ~ I <:? Fred M. Vitalo, Director, Contract Services Exhibit List to Agreement (X) Exhibit A. Page 15 4-22 Exhibit A to Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting S~ices 1. Effective Date of Agreement: January 16, 2007 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Gas Technology Institute 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 1700 S. Mount Prospect Road Des Plaines, IL 60018 Voice Phone: (847) 768-0911 Fax Phone: (847) 768-0984 4-23 Page 16 7. General Duties: Consultant will analyze energy, economic and environmental impacts of both planned and alternative building design options for the Chula Vista/Wakeland redevelopment site. 8. Scope of Work and Schedule: A. Detailed Scope of Work: GTI proposes to a scope of work (SOW) consisting of five interdependent tasks; Task 1. Development of Research Methodology GTI will prepare a research methodology document that will include all assumptions and features to be modeled in the Wakeland affordable housing project. This document will include specific details of the modeling approach and will itemize the Title-24'05 compliant prescriptive building features as well as alternative energy-efficient (EE) materials, equipment and control measures and their assumed installed costs. Economic assumptions for Life Cycle Costs (LCC) or Return on Investment (ROI) will also be included along with all applicable utility rate structures. Once a draft of the methodology document is produced, it will be discussed in detail with Wakeland personnel and City officials and modified as appropriate to ensure accuracy before any actual modeling is conducted. . Task 2. Development of Title-24'OS Prescriptive Baseline Load Profiles Using GTI's Building Energy Analyzer™ and Energy-IOTM modeling tools, and the modeling assumption developed and approved in Task 1, GTI will develop 8,760 hour-by- hour load profiles for baseline models ofT-24'05 compliant prototypical buildingslfloor plans similar to those planned for the Wakeland affordable housing project. These will include electric consumption (kW), natural gas consumption (Btu), domestic hot water energy usage (Btu) and cooling and heating loads (Btu)[may want to delete last sentence as it duplicated information previously provided]. Based on the local utility rates/schedules, monthly and annual electric and gas utility costs will be calculated for the building(s) as well. It is assumed that the developer will provide GTI with the site layout, floor plans and elevations, as well as other building construction details necessary to model the buildings. Additionally and if available, the developer will provide GTI with the T -24 compliance calculations generated for similar buildings that will serve as the prototypes for the modeling effort. Task 3. Evaluation of Energy Efficiency Alternatives The baseline models developed in Task 2 will be modified to enable subsequent modeling of the economic and environmental impact of using 12 alternative EE building materials and equipment configurations. Each of these configurations will enhance the Title-24'05 prescriptive building requirements. The alternative configurations include: Page 17 4-24 1. An energy-efficient glazing alternative 2. Improved envelope insulation (roof, walls) 3. EE 1 & 2 combined 4. Energy efficient lighting 5. EE 1 & 2 & 4 combined 6. High efficiency cooling 7. High efficiency heating, domestic hot water 8. EE 5 & 6 & 7 combined 9. EnergyStar appliances 10. EE 8 & 9 combined 11. Photovoltaics array (where applicable, will assume net metering unless advised otherwise) 12. EE 10 & 11 combined Impacts ofEE measures will be analyzed by comparing electric consumption (kW), natural gas consumption (Btu), domestic hot water energy usage (Btu) and cooling and heating loads (Btu) with that of the baseline designs analyzed in Task 2. The annual electric and gas utility costs will be calculated and compared with the baseline design as well. In addition, based on the utility cost savings and the first/installed cost of EE measures LCC, or ROI will be calculated. Environmental impacts will be evaluated based on reduction of Greenhouse Gas Emissions resulting from reduced consumption of electricity and natural gas. Task 4. Presentations and Reviews of EE Alternatives Impact Task 4 will include the preparation and delivery of preliminary research finding to Wakeland personnel and to City officials and the participation in discussions necessary to reach fmal research conclusions. WebEx Internet-based visual presentations and teleconferences will be used as standard means of communication with all proj ect participants Task 5. Reporting and Management Activities in Task 5 cover preparation of the fmal report and include formulation of the fmal design recommendations for the Wakeland affordable housing project as well as results of any additional modeling that may be needed to address issues identified in Task 4. B. Date for Commencement of Consultant Services: ( ) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I: Development of Research Methodology Deliverable NO.2: Development of Title-24'05 Prescriptive Baseline Load Profiles 4-25 Page 18 Deliverable No.3: Evaluation of Energy Efficiency Alternatives Deliverable No.4: Presentations and Reviews ofEE Alternatives Impact Deliverable No.5: Reporting and Management D. Date for completion of all Consultant services: June 30,:2007, or compliance with all executory provisions to the satisfaction of the City. 9. Materials Required to be Supplied by City to Consultant: Planning documents 10. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $55,839, payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (X) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defmed Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not Page 19 4-26 commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. Consultant shall develop a research $ 6,932 methodology resulting in a Report on Assumptions and Features to be Modeled in the Mixed-Use Housing Project. 2. Consultant shall use its Building Energy $ 11,395 Analyzer™ and Energy-lOTM modeling tools resulting in the Title-24'05 Prescriptive Baseline Load Profiles. 3. Consultant shall modify the baseline models $ 24,108 developed in Task 2 resulting in a Report on Evaluation of Energy Efficiency Alternatives. 4. Consultant shall prepare and deliver $ 6,632 preliminary research [mdings resulting in WebEx Internet-based visual presentations and teleconferences on EE Alternatives Impact. 5. Consultant shall prepare [mal [mdings $ 6,772 resulting in a Final Report on Formulation of the Final Design Recommendations. ( ) I. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. Page 20 4-27 C. ( ) Hourly Rate Arrangement F or performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions: (1) ( ) 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 Defmed Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Category of Employee Rate Schedule Name of Consultant Hourly Rate $ $ $ $ $ ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. II. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes all costs. Page 21 4-28 Cost or Rate $ $ $ $ $ $ $ $ $ $ () Reports, not to exceed $ () Copies, not to exceed $ ( ) Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Gustavo Perez, Senior Community Development Specialist City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista, CA 91910 Consultant: Nancy Bryla, Contracts Administrator Gas Technology Institute 1700 S. Mount Prospect Road Des Plaines, IL 60018 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest Code: ( ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. Page 22 4-29 ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No. 5. Investments 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. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: IS. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: Marek Czachorski, Institute Engineer, GTI R&D Market Units Tim Kingston, Project Manager, GTI R&D Market Units 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X) Other: Fixed Phase B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month Page 23 4-30 ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: XXX-XXXX 18. 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, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: J:\COMMDEV\STAfF.REP'2007\OI-16-07\GTJI2PTYI4 GTl Wakeland Dee 2006.doe Page 24 4-31 RESOLUTION NO. 2007- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN AGREEMENT WITH THE GAS TECHNOLOGY INSTITUTE, A NOT FOR PROFIT RESEARCH & DEVELOPMENT ORGANIZATION, TO ANALYZE ENERGY, ECONOMIC AND ENVIRONMENTAL IMP ACTS OF BOTH PLANNED AND AL TERNA TIVE BUILDING DESIGN OPTIONS FOR THE DEVELOPMENT OF THE CREEKSIDE VISTAS MIXED-USE RESIDENTIAL PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, on September 19, 2006, the City Council accepted the grant for the San Diego Gas & Electric (SDG&E) Partnership Program and appropriated funding for the 2006 calendar year of the SDG&E Partnership Program to 2007 fiscal year; and WHEREAS, the SDG&E Partnership Program grant budget has allocated $139,840.00 to the Gas Technology Institute, a 501 c3 not for profit research and development organization, for professional services related to energy modeling; and WHEREAS, the City would like to retain the services of the Gas Technology Institute (GTI) to analyze energy, economic and environmental impacts of both planned and alternative building design options for the Creekside Vistas mixed-use residential development located at 912-944 Third Avenue; and WHEREAS, the project approach will entail modeling building envelope energy loses, internal loads, and space conditioning and ventilation for the planned residential structures. The modeling will consider 8,760 hour-by-hour consumption of five types of energy including: electricity, natural gas, cooling, heating and domestic hot water; and WHEREAS, California's Title-24, 2005 residential building energy-efficiency standard will serve as the baseline for modeling minimum requirements for building energy efficiency; and WHEREAS, the modeling of alternatives will provide design input for specific western Chula Vista residential and mixed use developments that are targeted for construction in 2008; and WHEREAS, the design input will result in more energy efficient developments and reduced energy costs for residents of those developments; and WHEREAS, the results of the modeling and design input may be applied to reduce energy consumption and energy costs for residents of future developments throughout Chula Vista and the SDG&E service area; and 4-32 Council Resolution No. 2007- Page 2 WHEREAS, GTI will be retain for their services in an amount not to exceed $83,957; and WHEREAS, the City of Chula Vista's Community Development Department is investigating new opportunities for the development of energy-efficient affordable housing within the City's redevelopment area; , WHEREAS, GT! 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 NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista approves the contract between the City ofChula Vista and the Gas Technology Institute for the provision of analyzing energy, economic and environmental impacts of both planned and alternative building design options for the Creekside Vistas mixed-use residential development and authorizing the Mayor to execute the agreement. Presented by Approved as to form by Ann Hix Acting Community Development Director / ~ ~~~(J( 7M11W An oore C y Attorney J:\COMMDEV\STAFF.REP\2007\Ol-16-07\GTI\RESO - COUNCIL GTI Creekside Vistas.doc 4-33 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL o/~~q<u JM , Ann Mo City Atto ey Dated: 1/I~J{)7 Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling and Consulting Services for the Creekside Vistas mixed-use residential development at 912-944 Third A venue 4-34 Parties and Recital Page(s) Agreement between City ofChula Vista and Gas Technology Institute for Energy Modeling & Consulting Se;rvices This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, on September 19, 2006, the City Council accepted the grant for the San Diego Gas & Electric (SDG&E) Partnership Program and appropriated funding for the 2006 calendar year of the SDG&E Partnership Program to 2007 fiscal year; and Whereas, the SDG&E Partnership Program grant budget has allocated $139,840.00 to the Gas Technology Institute, a 50lc3 not for profit research and development organization, for professional services related to energy modeling; and Whereas, the City would like to retain the services of the Gas Technology Institute (GIl) to analyze energy, economic and environmental impacts of both planned and alternative building design options for the Creekside Vistas mixed-use residential development located at 912-944 Third A venue; and Whereas, the project approach will entail modeling building envelope energy loses, internal loads, and space conditioning and ventilation for the planned residential structures. The modeling will consider 8,760 hour-by-hour consumption of five types of energy including: electricity, natural gas, cooling, heating and domestic hot water; Whereas, California's Title-24, 2005 residential building energy-efficiency standard will serve as the baseline for modeling minimum requirements for building energy efficiency. Whereas, the modeling of alternatives will provide design input for specific western Chula Vista residential and mixed use developments that are targeted for construction in 2008; and Whereas, the design input will result in more energy efficient developments and reduced energy costs for residents of those developments; and 4-35 Page I Whereas, the results of the modeling and design input may be applied to reduce energy consumption and energy costs for residents of future developments throughout Chula Vista and the SDG&E service area; and Whereas, GTI will be retain for their services in an amount not to exceed $83,957; and, Whereas, the City of Chula Vista's Community Development Department is investigating new opportunities for the development of energy-efficient affordable housing within the City's redevelopment area; Whereas, GTI 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; (End ofRecitaIs. Next Page starts Obligatory Provisions.) 4-36 Page 2 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: l. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "DefIDed Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the DefIDed Services herein set forth, City may require Consultant to perform additional consulting services related to the DefIDed Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph lO(e), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a 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. 4-37 Page 3 F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to cOII1J;l'lencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (I) Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOI). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: I. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence 4-38 Page 4 Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the ~ity guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause 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. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. Page 5 4-39 (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a lI\inimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. 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. Subcontractors Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subj ect to all of the requirements included in these specifications. G. Security for Performance (1) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://,,,ww.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and Page 6 4-40 which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 4-41 Page 7 in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and;payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph l7(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term This Agreement shall terminate when the Parties have complied with all executory provisions hereo f. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions oftime, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer 4-42 Page 8 If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. 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 fmancial interest other than the compensation promised by this Agreement. C. 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. D. Promise Not to Acquire Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will i=ediately advise the City Attorney of City if Consultant leams of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Consultant warrants and represents that neither Consultant, nor Consultant's i=ediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defmed Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Page 9 4-43 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 in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Consultant agrees that Consultant Associates shall not acquir:e any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, and San Diego Gas and Electric Company 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 firms for whom Consultant is legally responsible in connection with the execution of the 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, employees and San Diego Gas and Electric Company. 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 and San Diego Gas and Electric Company 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. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees and San Diego Gas and Electric Company, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees and San Diego Gas and Electric Company. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees and San Diego Gas and Electric Company 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. 8. Termination of Agreement for Cause Page 10 4-44 If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such tennination. In that event, all finished or unfinished documents, data, studies, survey~, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. 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 sole and Page II 4-45 exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. " Consultant may publish or make available to interested public on a non-discriminatory basis, in a timely and reasonable manner, the results any or all of the information concerning the results of the defined services, which is the subject of this agreement, upon prior written consent of the City, which consent will not be unreasonably withheld." City shall have unr~stricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, inj ury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration 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 and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs Page 12 4-46 In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defmed Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. 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 herein as the places of business for each of the designated parties. D. 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. E. 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, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing LawNenue Page 13 4-47 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. (End of page. Next page is signature page.) 4-48 Page 14 Signature Page to Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its t=s: Dated: City of Chula Vista By: Cheryl Cox, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: Gas Technology Institute By: f9.--<./ I... !JlLfu~/<? Fred M. Vitalo, Director, Contract Services Exhibit List to Agreement eX) Exhibit A. Page 15 4-49 Signature Page to Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting Services IN WITh'ESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and lll1derstood same, and indicate their full and complete consent to its terms: Dated: City ofChuIa Vista By: Cheryl Cox, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: Gas Technology Institute By: Fred M. Vitalo, Director, Contract Services Exhibit List to Agreement (X) Exhibit A. Page 15 4-50 Exhibit A to Agreement between City of Chula Vista and Gas Technology Institute for Energy Modeling & Consulting S"rvices I. Effective Date of Agreement: January 16.2007 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Gas Technology Institute 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 1700 S. Mount Prospect Road Des Plaines, IL 60018 Voice Phone: (847) 768-0911 Fax Phone: (847) 768-0984 Page 16 4-,51 7. General Duties: Consultant will analyze energy, economic and environmental impacts of both planned and alternative building design options for the Chula Vista/Creekside Vistas redevelopment site. 8. Scope of Work and Schedule: A. Detailed Scope of Work: GTI proposes to a scope of work (SOW) consisting of five interdependent tasks; Task 1. Development of Research Methodology GTI will prepare a research methodology document that will include all assumptions and features to be modeled in the Creekside Vistas mixed-use housing project. This document will include specific details of the modeling approach and will itemize the Title-24'05 compliant prescriptive building features as well as alternative energy-efficient (EE) materials, equipment and control measures and their assumed installed costs. Economic assumptions for Life Cycle Costs (LCe) or Return on Investment (ROI) will also be included along with all applicable utility rate structures. Once a draft of the methodology document is produced, it will be discussed in detail with Douglas Wilson Companies personnel and City officials and modified as appropriate to ensure accuracy before any actual modeling is conducted. Task 2. Development of Title-24'05 Prescriptive Baseline Load Profiles Using GTI's Building Energy Analyzer™ and Energy-10™ modeling tools, and the modeling assumption developed and approved in Task I, GTI will develop 8,760 hour-by- hour load profiles for baseline models ofT-24'05 compliant prototypical buildingslfloor plans similar to those planned for the Creekside Vistas mixed-use housing project. These will include electric consumption (kW), natural gas consumption (Btu), domestic hot water energy usage (Btu) and cooling and heating loads (Btu)[may want to delete last sentence as it duplicated information previously provided]. Based on the local utility rates/schedules, monthly and annual electric and gas utility costs will be calculated for the building(s) as well. It is assumed that the developer will provide GTI with the site layout, floor plans and elevations, as well as other building construction details necessary to model the buildings. Additionally and if available, the developer will provide GTI with the T-24 compliance calculations generated for similar buildings that will serve as the prototypes for the modeling effort. Task 3. Evaluation of Energy Efficiency Alternatives The baseline models developed in Task 2 will be modified to enable subsequent modeling of the economic and environmental impact of using 12 alternative EE building materials and equipment configurations. Each of these configurations will enhance the Title-24'05 prescriptive building requirements. The alternative configurations include; 4-52 Page 17 I. An energy-efficient glazing alternative 2. Improved envelope insulation (roof, walls) 3. EE I & 2 combined 4. Energy efficient lighting 5. I & 2 & 4 combined 6. High efficiency cooling 7. High efficiency heating, domestic hot water 8. EE 5 & 6 & 7 combined 9. EnergyStar appliances 10. EE 8 & 9 combined II. Photovoltaics array (where applicable, will assume net metering unless advised otherwise) 12. EE 10 & II combined Impacts ofEE measures will be analyzed by comparing electric consumption (kW), natural gas consumption (Btu), domestic hot water energy usage (Btu) and cooling and heating loads (Btu) with that of the baseline designs analyzed in Task 2. The annual electric and gas utility costs will be calculated and compared with the baseline design as well. In addition, based on the utility cost savings and the first/installed cost of EE measures LCC, or ROI will be calculated. Environmental impacts ",ill be evaluated based on reduction of Greenhouse Gas Emissions resulting from reduced consumption of electricity and natural gas. Task 4. Presentations and Reviews ofEE Alternatives Impact Task 4 will include the preparation and delivery of preliminary research finding to Douglas Wilson Companies personnel and to City officials and the participation in discussions necessary to reach final research conclusions. WebEx Internet-based visual presentations and teleconferences will be used as standard means of communication with all project participants Task 5. Reporting and Management Activities in Task 5 cover preparation of the final report and include formulation of the final design recommendations for the Creekside Vistas mixed-use housing project as well as results of any additional modeling that may be needed to address issues identified in Task 4. B. Date for Commencement of Consultant Services: ( ) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I: Development of Research Methodology 4-53 Page 18 Deliverable No.2: Development of Title-24'05 Prescriptive Baseline Load Profiles Deliverable No.3: Evaluation of Energy Efficiency Alternatives Deliverable No.4: Presentations and Reviews ofEE Alternatives Impact Deliverable No.5: Reporting and Management D. Date for completion of all Consultant services: June 30. 2007, or compliance with all executory provisions to the satisfaction of the City. 9. Materials Required to be Supplied by City to Consultant: Planning documents 10. Compensation: A. ( ) Single Fixed Fee Arrangement. F or performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $83,957, payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (X) Phased Fixed Fee Arrangement. F or the performance of each phase or portion of the Defmed Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, 4-54 Page 19 in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. Consultant shall develop a research $ 8,712 methodology resulting in a Report on Assumptions and Features to be Modeled in the Mixed-Use Housing Project. 2. Consultant shall use its Building Energy $ 16,685 Analyzer™ and Energy-l OTM modeling tools resulting in the Title-24'05 Prescriptive Baseline Load Profiles. 0 Consultant shall modify the baseline models $ 38,580 J. developed in Task 2 resulting in a Report on Evaluation of Energy Efficiency Alternatives. 4. Consultant shall prepare and deliver $ 9,598 preliminary research findings resulting in WebEx Internet-based visual presentations and teleconferences on EE Alternatives Impact. 5. Consultant shall prepare [mal [mdings $ 10,382 resulting in a Final Report on Formulation of the Final Design Recommendations. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. 4-55 Page 20 C. ( ) Hourly Rate Arrangement F or performance of the Defmed Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions: (1) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximwn Compensation amount, Consultant agrees that Consultant will perform all of the Defmed Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximwn Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Category of Employee Rate Schedule Name of Consultant Hourly Rate $ $ $ $ $ ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes all costs. 4-56 Page 21 Cost or Rate $ $ $ $ $ $ $ $ $ $ () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Gustavo Perez, Senior Community Development Specialist City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista, CA 91910 Consultant: Nancy Bryla, Contracts Administrator Gas Technology Institute 1700 S. Mount Prospect Road Des Plaines, IL 60018 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.!. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. 4-57 Page 22 ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No. 5. Investments 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. ( ) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: Marek Czachorski, Institute Engineer, GTI R&D Market Units Tim Kingston, Project Manager, GTI R&D Market Units 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X) Other: Fixed Phase 4-58 Page 23 B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: XXX-XXXX 18. 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, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: J\COMMDEV\STAFF.REP\2007\Ol-16-07\OnOTI 2 party Creekside. doc 4-59 Page 24