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HomeMy WebLinkAbout2007/01/23 Item 12 CITY COUNCIL AGENDA STATEMENT Item No.: ! ,.Q. Meeting Date: 1/23/07 SUBMITTED BY: CONSIDERATION OF WAIVING THE FORMAL BIDDING PROCESS AND APPROVAL OF AN AGREEMENT WITH COOPER ROBERTSON & PARTNERS FOR CONSULTANT SERVICES RELATED TO EVALUATION OF POTENTIAL STADIUM SITES FOR THE SAN DIEGO CHARGERS WITHIN THE CITY OF CHULA VISTA, ADOPTION OF GUIDING PRINCIPLES FOR CHARGER RELOCATION, AND THE REFORMATION OF THE CHARGERS SUBCOMMITTEE CHARGERS SUBCOMMITTEE ~ CITY MANAGER If ITEM TITLE: REVIEWED BY: 4/5THS VOTE: YES NO X BACKGROUND The approval of the attached consulting contract provides the City of Chula Vista with the necessary consultant resources to evaluate various sites within the City of Chula Vista for a stadium complex for the San Diego Chargers. The Three-Party Agreement ensures that the necessary work as directed by the City of Chula Vista will be paid for by the San Diego Chargers. 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 statutorily exempt from environmental review pursuant to Section 15262 of the State CEQA Guidelines. Therefore, no environmental review is necessary. RECOMMENDATION That the City Council adopt the resolution waiving the formal consultant selection process, approving a Three-Party Agreement with Cooper Robertson and Partners, for consulting services 12-1 Date, Item No.: I "2... Meeting Date: 1/23/07 Page 2 of4 related to the evaluation of potential stadium sites within the City of Chula Vista and authorize the Mayor to sign the agreement. That the City Council adopt the guiding principles for Chargers' relocation. That the City Council reform the Chargers subcommittee. BOARDS/COMMISSION RECOMMENDATION N/A. DISCUSSION On May 9, 2006 the City Council unanimously voted for the City of Chula Vista to have initial conversations with the San Diego Chargers on the potential for a new stadium for the Chargers in Chula Vista. Over the next several months meetings were held between the City and the Chargers. The San Diego Chargers have expressed a continuing interest in working with the City. On December 19, 2006 the City Council created a subcommittee (Mayor Cox, Councilmember John McCann, City Attorney Ann Moore and Director of Planning and Building Jim Sandoval). The primary purpose of planning staff's presence on the subcommittee was to use their experience in developing a Scope of Work and contract for necessary consultant services. The site( s) evaluation is the first step of a process, which could result in the development of a stadium within Chula Vista. In order to conduct this analysis, expert consultant assistance is needed. There are very few firms nationally that have experience working on major professional sport complexes. Through extensive research, planning staff identified four firms that are nationally recognized experts in the area of stadium design. These firms are HOK, Ellerbe Becket, HNTB, and Cooper Robertson and Partners. The Chargers have retained HOK as their stadium consultant, leaving the other three firms available for proposal submittal. A proposed scope of work for consultant services was drafted by Planning Department staff and sent to Ellerbe Becket, HNTB, and Cooper Robertson and Partners. Proposals from all three firms were received by the City based upon the scope of work. A City staff committee comprised of the Director of Planning and Building, as well as other planning staff members, reviewed and evaluated the proposals consistent with City standards. The proposals were evaluated on a point system pursuant to the following criteria: firm's experience; quality of management tearn/project manager; capacity to perform work; project understanding; proposal quality; local experience and knowledge; and billing rates. Cooper Robertson's proposal received the most points from the evaluation committee. The cost of proposed services is as follows: Ellerbe Becket $508,800; HNTB $460,000; and Cooper Robertson $199,680. Pursuant to the criteria noted above, planning staff recommended the firm of Cooper Robertson and Partners. Based on planning staff's recommendation, the subcommittee concurred that Cooper Robertson and Partners provided the best and most responsive proposal. Not only does the firm have extensive experience in the analysis and development of stadium venues, for 12-2 r Date, Item No.: -- Meeting Date: 1/23/07 Page 3 of 4 example they recently assisted the New Yark Jets in its search for a new stadium site, they also have Chula Vista experience. Cooper Robertson and Partners was the lead planning consultant on the development of the Bay Front Master Plan. The subcommittee recommends the approval of a Three-Party agreement between the City of Chula Vista, the consulting firm of Cooper Robertson and Partners, and the San Diego Chargers. It is estimated it will take approximately three months to conduct the site analysis. Once the analysis of potential sites is completed, the City Council's Charger Subcommittee will meet with the San Diego Chargers in order to gauge their further interest. The results will then be brought to the full City Council in order to determine the City's continuing involvement. With the consultant selection process completed it is no longer necessary to have the Director of Planning and Building and the City Attorney as part of the subcommittee. The Subcommittee recommends a reformation of the subcommittee with the removal of the two staff positions. As stated previously, the purpose of this phase is to analyze potential stadium locations, not a stadium proposal. Should a draft stadium proposal be brought forth in the future, the Chargers Subcommittee recommends that the following principles should apply: A future stadium would: I. Include extensive public input 2. Have extensive public review of its design 3. Not involve existing City ofChula Vista general fund monies (new monies generated by the project may possibly be used as an incentive) 4. Not create either short or long-term fiscal deficits to the City 5. Identify environmental impacts and provide appropriate mitigation measures 6. Identify fmancial impacts and benefits to Chula Vista 7. Blend in with the character of the community 8. Give attention to the area surrounding the stadium complex 9. Not be detrimental to the Bay Front Master Plan 10. Not be detrimental to the future University Master Plan DECISION-MAKER CONFLICTS: Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section I 8704.2(a)(l) is not applicable to this decision. FISCAL IMPACT There will be no net fiscal impact to the General Fund from this contract. The contract will be paid directly by the San Diego Chargers through a deposit account. The amount of the contract 12-3 ----.~ Date, Item No.: ~ Meeting Date: 1/23/07 Page 4 of 4 is for $199,680. The staffing costs will also be paid by the San Diego Chargers through a deposit account. ATTACHMENTS 1. Three-Party Agreement 2. Resolution approving Three-Party Agreement Prepared by: Jim Sandoval, AlCP, Director of Planning and Building, Planning & Building Dept. Document25 12-4 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL BIDDING PROCESS AND APPROVING A THREE- PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA; COOPER ROBERTSON AND PARTNERS, CONSULTANT; AND THE SAN DIEGO CHARGERS, APPLICANT, FOR CONSULTING SERVICES RELATED TO THE PREPARATION OF SITE FEASIBILITY ANALYSIS FOR THE POTENTIAL CONSTRUCTION OF FOOTBALL STADIUM WITHIN THE CITY OF CHULA VISTA. WHEREAS, the Applicant has deposited or will deposit an initial sum for the consulting services necessary for the preparation of a site feasibility analysis; and WHEREAS, it was determined by the Director of Planning and Building that staff has neither the available time or expertise to perform the subject work; and WHEREAS, the City is in immediate need of an experienced project site evaluation consultant that is familiar with the City's policies and procedures; and WHEREAS, the Consultant is uniquely qualified to serve as the Consultant for the preparation of a site feasibility analysis and associated documents based upon the fact that they are recognized experts in a highly specialized and technical field, and their experience with projects of a similar nature; and WHEREAS, the City Council fmds that the City's competitive bidding requirements as applied to this contract would be impractical and hereby waives the competitive bidding process; and WHEREAS, the Planning and Building Director has negotiated the details of the Three- Party Agreement in accordance with applicable City of Chula Vista policies and procedures; and WHEREAS, 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 statutorily exempt from environmental review pursuant to Section 15262 of the State CEQA Guidelines. Therefore, no environmental review is necessary. NOW THERERFORE BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve a Three-Party Agreement between the City of Chula Vista; CooperLRobertson and Partners ("Consultant"), and The San Diego Chargers ("Applicant") for consulting services for the preparation and submittal of site feasibility analysis. 12-5 BE IT FURTHER RESOLVED that the Mayor of the City of City ofChula Vista is hereby authorized and directed to execute said Agreement on behalf of the City ofChula Vista. Presented by ~~~~ 1" City Alto . - . James D. Sandoval, AICP Director of Planning and Building 12-6 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL pi I ~nn City Attorney Dated: \ /,Q/07 Three Party Agreement Between City of Chula Vista, Cooper, Robertson & Partners, and San Diego Chargers for Consulting Work to be Rendered With regard to Chargers' Project 12-7 DRAFT Three Party Agreement Between City of Chula Vista, Cooper, Robertson & Partners, and San Diego Chargers For Consulting Work to be Rendered with regard to Chargers' Project 1. Parties This Agreement (~Agreement") is made as of the reference date set forth in Exhibit A, for the purposes of reference only, and effective as of the date last executed by the parties hereto, between the City of Chula Vista ("City") herein, a municipal corporation of the State of California, the person designated on the attached Exhibit A as ("Consultant") whose business form and address is indicated on the attached Exhibit A, and the San Diego Chargers ("Chargers") whose business form and address is indicated on the attached Exhibit A, and is made with reference to the following facts: 2. Recitals, Warranties and Representations. 2.1 Chargers are interested in investigating potential sites within the City for the location of a stadium. 2.2. In order to aide the City investigating various stadium sites, Work of the general nature and type described in Exhibits A and A-1, will need to be completed. 2.3. resources review by City does not presently have the "inhouse" staff or to perform the Work within the time frame needed for the Chargers and the City. 2.4. This Agreement proposes an arrangement by which the Chargers shall retain, and be liable for the costs of retaining, Consultant, who shall perform the services required of Consultant by this Agreement solely on behalf of, and under the direction of, the City. 3. Agreement. NOW, THEREFORE, IT IS MUTUALLY AGREED TO AND BETWEEN THE CITY, CONSULTANT, AND THE CHARGERS AS FOLLOWS: Page 1 12-8 3.1. Employment of Consultant by Chargers. Consultant is hereby engaged by the Chargers, not the City, and at the Chargers sole cost and expense, to perform to, and for the primary benefit of, City, and solely at City's direction, all of the services described on the attached Exhibit A-1, ("General Services"), and all services reasonable necessary to accomplish said General Services, and shall deliver such documents required ("Deliverables") herein, all within the time frames herein set forth, and in particular as set forth in Exhibit A, Paragraph 3, and if none are set forth, within a reasonable period of time for the diligent execution of Consultant's duties hereunder. Time is of the essence of this covenant. The Consultant does hereby agree to perform said General Services to and for the primary benefit of the City for the compensation herein fixed to be paid by the Chargers. The Chargers' sole obligation is to pay the amounts provided in this Agreement. The Chargers are not responsible for, and make no representations or warranties with respect to, the services to be provided by Consultant. In delivering the General Services hereunder, the Consultant shall do so in a good, professional manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations, at its own cost and expense except for the compensation and/or reimbursement, if any, herein promised, and shall furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, machinery, equipment, printing, vehicles, transportation, office space and facilities, calculations, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by the City or the Chargers, necessary or proper to perform and complete the work and provide the Services required of the Consultant. 3.2. Compensation of Consultant. Chargers shall compensate Consultant for all services rendered by Consultant without regard to the conclusions reached by the Consultant, and according to the terms and conditions set forth in Exhibit B adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, by paying said amount to the City, within 15 days of Consultant's billing, or in accordance with the security deposit Page 2 12-9 provisions of Paragraph 3.3 and Exhibit B, if checked, and upon receipt of such payment by the City, City shall promptly, not later than 15 days, or in accordance with the Bill Processing procedure in Exhibit B, if checked, pay said amount to the Consultant. City is merely acting in the capacity as a conduit for payment, and shall not be liable for the compensation unless it receives same from the Chargers. The Chargers shall not make any payments of compensation or otherwise directly to the Consultant, and so long as the Chargers pay the amounts due hereunder to the City, Consultant will look solely to the City for payment, and will have no rights to seek payment directly from Chargers. 3.2.1. Additional Work. If the Chargers, with the concurrence of City, determines that additional services ("Additional Services") are needed from Consultant of the type Consultant is qualified to render or reasonably related to the Services Consultant is otherwise required to provide by this Agreement, the Consultant agrees to provide such additional services on a time and materials basis paid for by Chargers at the rates set forth in Exhibit B, unless a separate fixed fee is otherwise agreed upon in writing for said Additional Work between the parties. 3.2.1.1. In the event that the City shall determine that additional work is required to be performed above and beyond the scope of work herein provided, City will consult with the Chargers regarding the additional work, and the Chargers may, in its sole and absolute discretion, either agree in writing to payor decline to pay for said additional work. If the Chargers decline or otherwise refuse to arrange and pay for said additional work, the City may, at its option, suspend any further consideration of potential sites for location of a stadium within the City unless and until the Chargers deposit the City's estimate of the costs of the additional work which the City determines is or may be required. If the Chargers agree in writing to pay for any such additional work, the Chargers shall pay any and all agreed additional costs for the additional work. 3.2.2. Reductions in Scope of Work. City may independently, or upon request from Consultant, from time to time reduce the Services to be performed by the Consultant under this Agreement. Upon doing so, City, Consultant and Chargers agree to meet in good faith and confer Page 3 12-10 for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. Upon failure to agree, the Fixed Fee may be unilaterally reduced by the City by the amount of time and materials budgeted by Consultant for the Services deleted. 3.3. Security for Payment of Compensation by Chargers. 3.3.1. Deposit. As security for the payment of Consultant by Chargers, Chargers shall, upon execution of this Agreement, deposit the amount indicated on Exhibit B as "Deposit Amount" with the City, as trustee for Consultant, the conditions of such trust being as indicated on Exhibit B and as hereinbelow set forth: 3.3.1.1 Other Terms of Deposit Trust. 3.3.1.1.1. City shall also be entitled to retain from said Deposit all costs incurred by City for which it is entitled to compensation by law or under the terms of this Agreement. 3.3.1.1.2. All interest earned on the Deposit Amount, if any, shall accrue to the benefit of, and be used for, Trust purposes. City may, in lieu of deposit into a separate bank account, separately account for said deposit in one or more of its various bank accounts, and upon doing so, shall proportionately distribute to the Deposit Trust, the average interest earned during the period on its general fund. 3.3.1.1.3. Any unused balance of Deposit Amount, including any unused interest earned, shall be returned to Chargers not later than 30 days after the termination of this Agreement and any claims resulting therefrom. 3.3.1.1.4. Chargers shall be notified within 30 days after of the use of the Deposit in any manner. Nothing herein shall invalidate use of the Deposit in the manner herein authorized. 3.3.1.1.5. At such time as City shall reasonably determine that inadequate funds remain on Deposit to secure future compensation likely due Consultant or City, City may make demand of Chargers to supplement said Deposit Amount in such amount as City shall reasonably specify. The Chargers may in its sole and absolute discretion agree in writing to supplement said Deposit Amount or decline to do so. If the Page 4 12-11 Chargers agree, the Chargers shall, within 15 days pay said amount ("Supplemental Deposit Amount") to City. Said Supplement Deposit Amount or Amounts shall be governed by the same terms of trust governing the original Deposit. 4. Non-Service Related Duties of Consultant. 4.1. Insurance. Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: 4.1.1. Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 7. 4.1.2. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 7, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City and Chargers as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City and Chargers in the same manner as members of the general public ("Cross-Liability Coverage") . 4.1.3. Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 7, unless Errors and Omissions coverage is included in the General Liability policy. 4.2. Proof of Insurance Coverage. 4.2.1. Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. Page 5 12-12 4.2.2. Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City and Chargers demonstrating same. 4.2.3 Security for Performance - Performance Bond. In the event that the need for a Consultant to provide a Performance Bond arises, 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://www.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount shall be indicated in an attachment as "Performance Bond" Exhibit. 4.3. Public Statements. All public statements and releases to the news be the responsibility of the City and the Chargers. Consultant shall not publish or release news items, articles or present lectures on the Project, either course of the study or after its completion, except concurrence of the City and the Chargers. media shall The comments, during the on written 4.4. Communication to Chargers. Consultant shall not communicate directly to the Chargers except in the presence of the City, or by writing an exact copy of which is simultaneously provided to City, except with the express consent of City. The Consultant may request such meetings with the City and the Chargers to ensure the adequacy of services performed by Consultant. 5. Documents Access. The Chargers shall provide to the Consultant, through the City, for the use by the Consultant and City, such documents, or Page 6 12-13 copies of such documents requested by Consultant, within the possession of the Chargers reasonably useful to the Consultant in performing the services herein required of Consultant, including but not limited to those described in Exhibit A, Paragraph 4. Notwithstanding this or any other provision of this Agreement, the Chargers will not be required to provide the Consultant, the City or anyone else any documents or information which the Chargers, in its sole and absolute discretion, deems confidential or proprietary. 6. Administrative Representatives. Each party designates the individuals ("Administrators") indicated in Exhibit A, Paragraph 5, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this Agreement. 7. Conflicts of Interest 7.1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 6, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report his economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 6 of Exhibit A, or if none are specified, then as determined by the City Attorney. 7.2. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 7.3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's Page 7 12-14 knowledge, have an economic interest which would conflict with Consultant's duties under this Agreement. 7 . 4 . Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 7.5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 7.6. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any of the properties which may be the subject matter of this investigation, or in any property within 10 radial miles from the exterior boundaries of any of the properties which may be the subject matter of this investigation, or ("Prohibited Interest"). Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates by Chargers or by any other party as a result of Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Notwithstanding said promise, nothing in this Agreement will prevent consultant, after its work hereunder is completed or its services terminated, from accepting an engagement with another entity with respect to a possible Chargers stadium in a venue other than in the City of Chula Vista. Page 8 12-15 During the term hereof, Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement. 8. Default of the Consultant for Breach. This Agreement may be terminated by the CITY for default if the Consultant breaches this Agreement or if the Consultant refuses or fails to pursue the work under this Agreement or any phase of the work with such diligence which would assure its completion within a reasonable period of time. Termination of this Agreement because of a default of the Consultant shall not relieve the Consultant from liability of such default. 9. Right to Terminate Agreement for Convenience, Documents. 9.1. Notwithstanding any other section or provision of this Agreement, the CITY and the Chargers shall each have the right, in its sole and absolute discretion, to terminate this Agreement or any work to be performed pursuant to this Agreement at any time. 9.2. In the event of termination of this Agreement by the CITY or the Chargers in the absence of default of the Consultant, the City shall pay the Consultant for the reasonable value of the services actually performed by the Consultant up to the date of such termination, less the aggregate of all sums previously paid to the Consultant for services performed after execution of this Agreement and prior to its termination in accordance with Section 3.2 herein. 9.3. The Consultant hereby expressly waives any and all claims for damage or compensation arising under this Agreement, except as set forth herein, in the event of such termination. 9.4. In the event of termination of this Agreement by any party hereto, the Consultant shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all other materials and documents prepared by the Consultant in performance of this Agreement, and all such documents and materials shall be the property of the City; provided however, that the Consultant may retain copies for their own use and the City shall provide a copy, at Chargers' cost, of all such documents to the Chargers. 9.5. Chargers shall not exercise any control or direction over Consultant's work. Page 9 12-16 10. Administrative Claims Requirement and Procedures No suit shall be brought arising out of this Agreement, against the City, unless a claim has first been presented in writing and filed with the City of Chula Vista and acted upon by the City of Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, the provisions of which are incorporated by this reference as if set fully set forth herein. 11. Hold Harmless and Indemnification Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, and the Chargers 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 the 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 or of the Chargers. 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 or of the Chargers 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 the Chargers, from and against all claims for damages, liability, cost and expense (including without limitation attorney fees) except for those claims arising from the negligence or willful misconduct of City, its officers, employees, or of the Chargers. Consultant's indemnification shall include any and all costs, expenses, attorney fees and liability incurred by the City, its officers, agents or employees or the Chargers in defending against such claims, whether the same proceed to Page 10 12-17 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. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising out of any services performed in accordance with this Agreement, except liability for Professional Services covered under Section 11.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees and of the Chargers from and against all liability. 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 or of the Chargers, 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. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees or of the Chargers. This section in no way alters, affects or modifies the Consultant's obligation and duties under Exhibits A and A-1 to this Agreement. (2) Indemnification for Professional Services As to the Consultant's professional obligation, work or services involving this Agreement the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees and the Chargers from and against any and all liability, claims, costs, and damages, including but not limited to, attorney fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance of services under this Agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to Page 11 12-18 property, or other loss, arising from sole negligence, willful misconduct or defects in design by City or the agents, servants, independent contractors or of the Chargers who are directly responsible to City, or arising from the active negligence of City. 12. 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 date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation 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 breech. 13. Business Licenses Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 14. Miscellaneous. 14.1. Consultant not authorized to Represent City. Unless specifically authorized in writing by City, neither Consultant nor Chargers shall have authority to act as City's agent to bind City to any contractual agreements whatsoever. 14.2. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt Page 12 12-19 requested, at the addresses identified for the parties in Exhibit A. 14.3. Entitlement to Subsequent Notices. No notice to or demand on the parties for notice of an event not herein legally required to be given shall in itself create the right in the parties to any other or further notice or demand in the same, similar or other circumstances. 14.4. Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 14.5. Capacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement; that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 14.6. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 14.7. Modification. No modification or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the parties hereto, and then shall be valid only in the specific instance and for the purpose for which given. 14.8. Counterparts. Page 13 12-20 This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original but all of which, when taken together shall constitute but one instrument. 14.9. Severability. In the event that any provision of this Agreement shall for any reason, be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements to this Agreement or such other appropriate action as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein. 14.10. Headings. The captions and headings in this Agreement are for convenience only and shall not define or limit the provisions hereof. 14.11. Waiver. No course of dealing or failure or delay, nor the single failure or delay, or the partial exercise of any right, power or privilege, on the part of the parties shall operate as a waiver of any rights herein contained. The making or the acceptance of a payment by either party with knowledge of the existence of a breach shall not operate or be construed to operate as a waiver of any such breach. 14.12. Remedies. The rights of the parties under this Agreement are cumulative and not exclusive of any rights or remedies which the parties might otherwise have unless this Agreement provides to the contrary. 14.13. No Additional Beneficiaries. Despite the fact that the required performance under this Agreement may have an affect upon persons not parties hereto, the parties specifically intend no benefit therefrom, and agree that no performance hereunder may be enforced by any person not a party to this Agreement. Notwithstanding the foregoing, this is a three party agreement and the City is an express third party Page 14 12-21 beneficiary of the promises of Consultant to provide services paid for by Chargers. 15. 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 exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 16. This Agreement shall terminate when the Parties have complied with all executed provisions herein, unless terminated in accordance with paragraph 8 or 9 of this Agreement. (End of Page. Next Page is Signature Page.) Signature Page Page 15 12-22 NOW THEREFORE, THE PARTIES HERETO, having read and understood the terms and conditions of this Agreement, do hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto. Dated: City of Chula Vista by: Attest: Susan Bigelow City Clerk Approved as to Form: Ann Moore City Attorney Dated: Consultant: by: Dated: Chargers: by: J:\Attorney\MichaelSh\CHARGERS\3PartyAgt-Interim Final.doc Page 16 12-23 Exhibit A NOTE: Exhibit A to be finalized and Exhibit A-l (the Scope) to be inserted prior to the City Council meeting. Reference Date of Agreement: Effective Date of Agreement: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: Business Form of Consultant: Sole Proprietorship Partnership Corporation Address: Chargers: Business Form of Chargers: ( ) Sole Proprietorship ( ) Partnership ( ) Corporation Address: 1. Project Description ("Project"): See Exhibit A-I 2. General Nature of Consulting Services ("Services- General") : See Exhibit A-I 3. Schedule, Milestone, Time-Limitations within which to Perform Services. Date for Commencement of Consultant Services: ( ) Same as Effective Date of Agreement Page 17 12-24 Dates or Time Limits for Delivery of Deliverables: Deliverable No.1: Deliverable No.2: Deliverable No.3: Dates for completion of all Consultant services: 4 . Documents to be ( ) site plans elevations ( ) ( ) other: provided by Chargers ( ) grading plans ( project description. to Consultant: ) architectural 5. Contract Administrators. City: Chargers: Consultant: 6. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: Not Applicable. Not an FPPC Filer.' Category No.1. Investments and sources of income. Category No.2. Interests in real property. 1. If Consultant, in the performance of its services under this agreement: 1) conducts research and arrives at conclusions with respect to its rendition of information, advice, recommendations or counsel independent of the control and direction of the City or of any City official, other than normal contract monitoring; and 2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendations or counsel, he should not be designated as an FPPC Filer. Page 18 12-25 ) Category No.3. ) Category No.4. ) Category No.5. ) Category No.6. ) Category No.7. 7. Insurance Requirements: Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. Business positions. Statutory Worker's Compensation Insurance Employer's Liability Insurance coverage: $1,000,000. Commercial General Liability Insurance: $1,000,000. Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). Errors and Omissions insurance: $250,000 (not included in Commercial General Liability coverage) . Page 19 12-26 Exhibit B Compensation Schedule and Deposit: Terms and Conditions. Single Fixed Fee Arrangement. For performance of all of the General and Detailed Services of Consultant as herein required, Applicant shall pay a single fixed fee in the amounts and at the times or milestones set forth below: ( X) Single Fixed Fee Amount: $199,680 Milestone or Event Percent and Amount of Fixed Fee 1. Signing of this agreement by all parties and upon the request of the consultant. 10% ($19,968) 2. Completion of Phase I 40% ($79,872) 3. Completion of Phase II 50% ($99,840 4. 25% Contingency Fee** $49,920 **The Director of Planning and Building in his discretion independently or upon request from the Consultant, from time to time, may negotiate additional services to be performed by the Consultant under this Agreement in order to cover unforeseen issues that may be identified during the preparation of the document ("Additional Services"). The cost of Additional Services in connection with the document shall not exceed 25% of the total contract amount ($49,920). Phased Fixed Fee Arrangement. For the performance of each phase or portion of the General and Detailed Services of Consultant as are separately identified in Exhibit C, under the category labeled "Phased Fixed Fee Arrangement", Applicant shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones set forth hereinbelow ("Phase Fixed Fee Arrangement") . Consultant shall not commence Services under any Phase, and shall Page 20 12-27 not be entitled to the compensation for a Phase, unless Applicant shall have issued a notice to proceed to Consultant as to said Phase. Time and Materials For performance of the General and Detailed Services of Consultant as herein required, Applicant shall pay Consultant for the productive hours of time and material spent by Consultant in the performance of said Services, at the rates or amounts set forth hereinbelow according to the following terms and conditions: Not-to-Exceed Arrangement Limitation on Time and Materials Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the General and Detailed Services herein required of Consultant for including all Materials and other "reimburseables" ("Maximum Compensation"). The City will also receive a standard administrative fee amounting to 10% of the contract. ( X ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $199,680 (plus 25% if negotiated as set forth above) ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City Council. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Consultant's Rate Schedule Category of Employee Hourly Rate Cooper, Robertson & Partners: Partner-in-Charge Project Manager Project Architect $125 $300 $175 P&D Consultants: Page 21 12-28 Principal-in-Charge Project Director Project Engineer Senior Engineer Staff Engineer $220 $195 $175 $180 $105 (X) Permitted Subconsultants: P&D Consultants 8954 Rio San Diego Drive, Suite 610 San Diego, CA 92108 (619) 291-1475 Materials Separately Paid For by Applicant - Cost or Rate Materials NA Reports Copies Travel Printing Postage Delivery ( ) Long Distance Telephone Charges (X) Other -SANDAG Model Run Fees NA NA NA NA NA Actual Deposit (X) Deposit Amount: $199,680 - As agreed to by the Applicant, 100% of the Deposit ($199,680) is to be made by the San Diego Chargers. Applicant agrees to deposit within 15 days if City requests to do so, for additional Materials separately paid for by the Applicant, and up to $49,920 if additional services are required, in accordance with Section 3.2.1.1. Page 22 12-29 (X) Use of Deposit to Pay Consultant. Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this paragraph is "checked", upon City's receipt of billing by Consultant, and determination by City in good faith that Consultant's billing is proper, a judgment for which Applicant agrees to hold City harmless and waive any claim against City, City shall pay Consultant's billing from the amount of the Deposit. If Applicant shall protest the propriety of a billing to City in advance of payment, City shall consider Applicant's protest and any evidence submitted prior to the due date for the payment of said bill by Applicant in making its good faith determination of propriety. () Use of Deposit as Security Only; Applicant to Make Billing Payments. Upon determination by City made in good faith that Consultant is entitled to compensation which shall remain unpaid by Applicant 30 days after billing, City may, at its option, use the Deposit to pay said billing. (X) Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X) Other: Milestone B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month ( ) End of the Month (X) Other: Upon Completion of Milestone C. City's Account Number: To be assigned after agreement is processed. D. Security for Performance Performance Bond, $ Letter of Credit, $ Other Security: Page 23 12-30 Type: Amount: $ (X ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, the following Retention Percentage until the City determines that the Retention Release Event, listed below, has occurred: Retention Percentage: 10% Retention Amount: $ Retention Release Event: (X) Completion of All Consultant Services to the satisfaction of the Director of Planning and Building. ( ) Other: Page 24 12-31