Loading...
HomeMy WebLinkAbout2010/01/12 Item 7 CITY COUNCIL& REDEVELOPMENT AGENCY AGENDA STATEMENT ~!~ (IWOi' ~ CHUlA VISTA JANUARY 12, 2010, Item~ SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A CONTR.i\CT WITH THE UNIVERSITY OF SAN DIEGO CENTER FOR EDUCATION POLICY AND LAW TO CONDUCT RESEARCH AND ANALYSIS NECESSARY TO ASSIST THE CITY IN THE RECRUITMENT OF HIGHER EDUCATION PARTNERS FOR THE;lVERSITY PARK AND RESEARCH CENTER . DEVELOPMENT SERVICES DIRECT EPUTY CITY MANAGER CITY MANAGER ITEM TITLE: REVIEWED BY: SUMMARY For several years, the City ofChula Vista has worked towards a goal of bringing a higher education institution and related research facilities to the City. The City's vision, knoWn as the University Park and Research Center (UPRC), will be located on property currently owned by the City of Chula Vista and on adjacent property still to be acquired by the City in the Olay Ranch community. In order for the City to recruit academic partners for the UPRC, it is necessary to retain a consultant to conduct higher education market research and analysis to assist in these efforts. 4/5THS VOTE: YES D NO 0 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that there is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to Section 15061(b)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION N/A DISCUSSION For several years, the City has pursued a vision to develop the UPRC. The UPRC will consist of one or more higher education providers, as well as a related research park. The City's General 7-1 JANUARY 12, 2010, 1tem~ Page 2 Plan shows that the UPRC will be located on land owned by the City within the Otay Ranch community as well as on adjacent property still to be acquired by the City. In April of 2008, the City entered into Land Offer Agreements (LOA) with JPB Development and the Otay Land Company (OLC). The LOA with IPB Development states that upon the City's approval of its entitlements within the Otay Ranch, JPB Development would convey 160 acres of land to the City for the development of the proposed UPRC. The LOA with OLC would convey 50 acres for the UPRC upon approval of its entitlements. OLC also agreed to convey an additional 160 acres of habitat land which will be used to mitigate the future UPRC. The LOA also requires the City to process the entitlement applications within two years of their being deemed complete. In August ofthis year, OLC's applications were deemed complete, thus starting the two year processing corrunitment. OLC also provided funds towards the recruitment of university partners and the initiation of the University Land Plarming efforts, including the research and analysis that is the subject of this report. With land planning and entitlement efforts underway on land adjacent to the UPRC, it is prudent for the City to begin the initial steps for the recruitment of academic partners. Over the past few years, staff has conducted research and met with higher education leaders regarding the UPRC concept. Based upon this analysis, it is staffs conclusion that it is necessary to provide academic institutions with a base of information about the demand for a higher education facility. The information universities are seeking would include such topics as the types of programs needed and desired by the community, the demographics of college going students and the factors utilized by students and their families in determining the type and location of a university to attend. In conjunction with the City's need to provide information to potential educational partners, it is also necessary for the City and the community to gain a better understanding of the considerations that university administrators and faculty will utilize in their decision making. To aid in the process, staff has determined that it is necessary to obtain information regarding the types and structures of institutions and which ones are most likely to lead to the establishment of a four-year university; the tools used by other California communities to attract and establish higher education institutions in recent years; potential local and regional corporate and philanthropic funding capacity for the establishment of a four-year university; regional university faculty views on the establishment of a university; and an analysis of the factors that facilitated and challenged other communities seeking to establish an institution of higher education. In order to obtain the above described data, City staff issued a Request for Proposals (RFP) for a consultant to conduct research related to the City's pursuit of higher education partners. In response to the RFP, the City received proposals from the University of San Diego Center For Education Policy and Law, Ira Fink and Associates, MGT of America, Inc., and the Washington Advisory Group. 7-2 JANUARY 12, 2010, Item~ Page 3 The University of San Diego Center For Education Policy and Law (CEP AL) has the ability and expertise to conduct legal analysis, as well as qualitative and quantitative analysis. Their staff has expertise in educational policy and higher education operations. CEP AL staff has served state- wide educational agencies and boards, giving them a broad knowledge of Cali fomi a K-12 and higher education policy dcvelopment and educational operation. Further, CEP AL has extensive knowledge and insight into the San Diego regional K-12 and higher education issues. Based upon the unique experience and qualifications of CEP AL, staff is recommending that they be selected to conduct the rescarch and analysis necessary to assist the City in its educational recruitment efforts. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundarics of the property which is the subject of this action. CURRENT YEAR FISCAL IMPACT The City of Chula Vista entcred into a Land Offer Agreement with the Otay Land Company for the conveyance of land to the City for the development of the University Park and Research Center. The Land Offer Agreement also ineluded the acceptance by the City of$1 million dollars for university planning and recruitment purposes. The $1 million dollars has been deposited into a University Deferred Revenue account for such activitics as the subject study. The fiscal year 20 I 0 budget for the Economic Development Division included $150,000 for costs related to university consultants. Therefore, no additional appropriation is necessary. Further, the expenditure of the funds from the University Deferred Revenue will not result in an impact to the City's General Fund. ONGOING FISCAL IMPACT Over the next two years, staff antICipates expending additional funds for planning and recruitment activities for the University Park and Research Center. These future activities are anticipated to be funded in whole or in part with funds from the University Deferred Revenue, and will also not result in an impact to the City's General Fund. ATTACHMENTS Contract between the City ofChula Vista and the University of San Diego Center For Education Policy and Law Prepared by Craig Rut::, Principal Economic Development Specialist, Development Services Department, Economic Development Division 7-3 RESOLUTION NO. 2010- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CI-IULA VISTA APPROVING A CONTRACT WITH THE UNIVERSITY OF SAN DIEGO CENTER FOR EDUCATION POLICY AND LAW TO CONDUCT RESEARCH AND ANAL YSIS NECESSARY TO ASSIST THE CITY IN THE RECRUITMENT OF HIGHER EDUCATION PARTNERS FOR THE UNIVERSITY PARK AND RESEARCH CENTER WHEREAS, the City ofChula Vista has had a long term vision for the creation of higher education and research facilities to serve both Chula Vista and the entire South Bay region; and WHEREAS, the City's vision, known as the Chula Vista University Park and Research Center, is to be located on property currently owned by the City of Chula Vista and on adjacent property still to be acquired by the City in the Otay Ranch community; and WHEREAS, in April of 2009, the City entered into Land Offer Agreements with two property owners to allow for the future acquisition of the land necessary for the development of the University Park and Research Center; and WHEREAS, in order to facilitate the development of the University Park and Research Center, it is necessary for the City to retain a consultant to conduct research related to the City's desire to recruit higher education partners for the new campus; and WHEREAS, the City seeks to retain the University of San Diego Center for Education Policy and Law to perform the necessary research and analysis to assist the City in the recruitment of higher education partners for the new campus; and WHEREAS, based upon the consultant selection process, the University of San Diego Center for Education Policy and Law was selected to perform the requested work due to its extensive knowledge and experience in conducting similar analysis in California and throughout the United States, and its knowledge of the California educational system and regulations, its knowledge of the local education area and educational systems, and its demonstrated ability to complete the work in a timely and cost effective manner; and WHEREAS, the University of San Diego Center for Education Policy and Law warrants and represents that they are experienced and staffed in a manner such that they are and can deliver the services required; and WHEREAS, after a preliminary revIew for compliance with the Califomia Environmental Quality Act (CEQA) staff has determined that there is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to Section 15061(b)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. 7-4 Resolution No. 2010- Page 2 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the contract between the City of Chula Vista and the University of San Diego Center for Education Policy and Law in the amount of Eighty Two Thousand Nine Hundred Forty-Five Dollars ($82,945) to conduct the necessary research and analysis to assist the City in the recruitment of higher education partners for the new University Park and Research campus and authorizing the Mayor to execute the agreement. Presented by Approved as to form by James D. Sandoval City Manager J:\Anorney\FTh'AL RESOS\2010\Ol 12 IO\UCSD Higher Education-FINAL doc 7-5 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORlvI BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL /C lOc. --.f-7-~ - r~ City Attomeyl', Dated: AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND UNIVERSITY OF SAN DIEGO CENTER FOR EDUCATION POLICY AND LAW TO CONDUCT A RESEARCH STUDY RELATED TO PURSUIT OF HIGHER EDUCATION PARTNERS IN A PLANNED UNIVERSITY CAMPUS 7-6 Parties and Recital Pages Agreement between City of Chula Vista and The University of San Diego Center for Education Policy and Law To Conduct a Research Study Related to the City ofChula Vista's Pursuit of Highcr Education Partners in a Planned University Campus This agreement ("Agreement"), dated January 12,20 I 0 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, the City of Chula Vista has had a long term vision for the creation of higher education and research facilities to serve the cntire South Bay region; and WHEREAS, the City's vision, known as the Chula Vista University Park and Research Center, is to be located on property currently owned by the City of Chula Vista and on adjacent property still to be acquired by the City in the Otay Ranch community; and WHEREAS, in April of 2009, the City entered into Land Offer Agreements with two property owners to allow for the future acquisition of the land necessary for the development of the University Park and Research Center; and WHEREAS, in order to facilitate the development of the University Park and Research Center, it is necessary for the City to retain a consultant to conduct research (the "Project") related to the City's desire to recruit higher education partners for the new campus; and WHEREAS, the City seeks to retain the University of San Diego Center for Education Policy and Law to perform the necessary research and analysis to assist the City in the recruitment of higher education partners for the new campus; and WHEREAS, to facilitate the recruitment effort, the City conducted a Request for Proposal process to identify and select a consultant to provide the necessary research and anal ysis; and WHEREAS, based upon the consultant selection process, the University of San Diego Center for Education Policy and Law was selected to perform the requested work due to its extensive knowledge and experience in conducting similar analysis in California and throughout the United States its knowledge of the California educational system and regulations, its Page 1 7-7 knowledge of the local education area and educational systems, and its demonstrated ability to complete the work in a timely manner; and WHEREAS, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can 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 7-8 NOW, THEREFORE, BE IT RESOLVED for valuable consideration the City and Consultant do hereby mutually agree as follows: All of the Recitals above are hereby incorporated into this Agreement. ARTICLE I. CONSULTANT'S OBLIGATIONS A. General I. General Duties. Consultant shall perform all of the services described on the attachcd Exhibit A, Paragraph 7, entitled "General Duties". 2. 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 trames 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, terminate this Agreement. 1. 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. 11. Additional Services. In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph I O(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. 1. No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. Page 3 7-9 B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of the Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of the Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, tenninate the Project, or portions thereof, expeditiously. I. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all Project participants, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting Project implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall assure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance I. General. Consultant must procure and maintain, during the period of performance of this Agreement, and for twelve (12) months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. 2. Minimum Scope ofInsurance. Coverage must be at least as broad as: I. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOI). 11 Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). 111. We. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. IV. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Contractor must maintain limits no less than those included in the table below: Page 4 7-10 i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Inc I uding (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $ I ,000,000 each occurrence Liability or Errors & Omissions Liability: 4. Oeductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policics are to contain, or be endorsed to contain, the following provisions: 1. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf 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. 11. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 5 7-11 consultant and in no way relieves the consultant from its responsibility to provide msurance. 111. Cancellation. The insurance policies req11ired must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. The words "will endeavor" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives" shall be deleted from all certificates. IV. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligcnce of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. v. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: 1. Retro Date. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. 11. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. lll. Cancellation. 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 minimum of five (5) years after completion of contract work. IV. Copies. A copy ofthe claims reporting requirements must be submitted to the City for review. 7. 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. 8. Verification of Coverage.' Consultant shall furnish the City with original certificates and amendatory endorsements affecting coverage required by Section C. The endorsements should be on insurance industry forms, provided those endorsements or policies conform Page 6 7-12 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. 9. Subcontractors. Consultants must include all suoconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants is subject to all of the requiremcnts included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under rhis Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance I. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the 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 rhe 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 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 lctter 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 Securitv. 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 Page 7 7-13 --.:/ other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule 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. I. Following Receipt of Billing. 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 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 II. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable thereunder is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost I) incurred prior to the effective date of this Agreement; 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. 1. 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 ifthere were no such negligence, errors, omissions, Consultant shall reimburse City for any Page 8 7-14 additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 4. Pavment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of !=onsultant of the terms of the Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. 1. Consul/ant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant I. Consultant is Desi[(Dated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. Page 9 7-15 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant 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. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees: 1. 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. 11. 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. 111. 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. IV. That 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. IV. LIQUIDATED DAMAGES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Page 10 7-16 2. Amount of Penaltv. 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 respcctive work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten (10) calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it ean be shown that sueh delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Professional Services covered under Article V, Section (A)(2), Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or otlicers, or any third party. 2. Professional Services. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers) ("Design Professionals"), Design Professionals shall defend, indemnify and hold the City, its otlicials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out ot; pertaining to, or relating to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials, officers, employees, agents, Page I I 7-17 consultants, and contractors arising out of or in connection with the performance of the Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Design Professional, its employees, agents or ofticers, or any third party. The Design Professional's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Design Professional's obligation and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections I and 2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, ofticers, employees, agents and/or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City.or its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, ofticials, ofticers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. Page 12 7-18 B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the 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, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as ~et forth herein. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, thc Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may reqUIre. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIll. PROJECT COMPLETION, AUDrT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, the Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Consultants. The Consultant agrees to have performed financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. The Consultant agrees that Project closeout will not alter the Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notitlcation from City Page 13 7-19 ARTICLE IX. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. I. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as "Permitted Subconsultants". B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, 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. C. 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, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income ta.x, social security ta.x 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. 1. Actions on Behalf of City. Except as City may specify in writing, Grantee shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Grantee shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, the Consultant agrees and shall require that it's agents, employees, subcontractors agree that the City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that the City may have concurred in or approved any solicitation, Page 14 7-20 subagreement, or third party contract at any tier, neither City shall have any obligations or liabilities to such other party. D. 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 tiled 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. E. 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. F. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in 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. 1. 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. J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties Page 15 7-21 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. L. 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. M. 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. (End of page. Next page is signature page.) Page 16 7-22 Signature Page to Agreement between City of Chula Vista and The University of San Diego Center for Education Policy and Law, To Conduct a Research Study Related to the City of Chula Vista's Pursuit of Higher Education Partners in a Planned University Campus 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: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: University of San Diego ::~ul"JJZ JUli6f Sullivan Executive Vice President and Provost Exhibit List to Agreement eX) Exhibit A. Page 17 7-23 Exhibit A to Agreement between City of Chula Vista and University of San Diego Center for Education Policy and Law 1. Effective Date of Agreement: Same as final City signature on page 15 of this agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City ofChula 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: Scott Himelstein, Director University of San Diego Center for Education Policy and Law 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Center for Education Policy and Law University of San Diego, MRH 149 5998 Alcala Park San Diego CA 92110 Voice Phone (619) 260-7852 Fax Phone: (619) 849-8149 Page 18 7-24 7. General Duties: The establishment of new institutions of higher education requires careful research, planning, and in most instances adherence to both statutes and policy of the State of California as well as its system of higher education. The University of San Diego Center for Education Policy and Law (CEPAL) proposes to assist the City of Chula Vista by providing research in specific critical areas that need to be addressed early in pursuit of the overall goal of establishing an institution of higher education in Chula Vista. In addition to addressing statutory and policy requirements, the results of the research are intended for use in the recruitment of higher education partners for the new campus. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Through its affiliated faculty and research assistants enrolled in the USD School of Law and in the USD School of Leadership and Education Sciences, CEP AL will conduct research in the following areas and then provide options for the City to consider. 1. Criteria and procedures necessary to establish a four-year public or private university a. Review relevant state statutes and regulations. b. Review procedures required by the California Postsecondary Education Commission (CPEe). This phase of the study will be conducted as soon as funding is obtained and will be completed by the end of June 2010. Work product will be a summary of the legal framework for establishing a postsecondary institution of the type contemplated by the City of Chula Vista. 2. Current capacity levels of existing institutions of higher education in San Diego County and the identification of instructional areas and student populations that are underserved. This part of the study will be conducted as soon as funding is obtained with completion estimated by the end of September 2010. Work product will be a listing of the capacity levels of existing institutions by degree category and a description of the underserved instructional areas and student populations. 3. The college-going rates of South Bay high school students, as well as community college transfers from Southwestern Community College to four-year institutions. a. How many are choosing to go on to college? b. In which institutions are they enrolling? c. How do criteria such as family income, proximity of postsecondary educational options, and accessibility influence the choices students make? Page 19 7-25 This part of the study will be conducted jointly with Section 8.A.2. Work product will be a listing of college-going rates/numbers by institutions and, to the extent information is available, on the factors that influence South Bay students to attend postsecondary education. 4. The growth of the South Bay student population. a. Demographic information b. Age trends of the college-going population This part of the study will be conducted jointly with Section 8.A.2 and 3. Work product will be demographic and age-trend statistics. 5. Identification of the tools that other California communities similar in size to Chula Vista have used to attract and establish an institution of higher education in recent years (e.g., land, infrastructure, capital funds, facilities, operating funds, faculty/student housing). This part of the study will encompass both conversations with California Postsecondary Education Commission (CPEC) officials and a review of documents and news reports pertaining to California communities that in recent years have been successful or have not been successful in establishing a postsecondary educational institution in their area. In addition, up to six interviews with key community leaders will be conducted. The interviews will be recorded and summarized. They will identify the strategies that were used to determine the need for a university and which ones worked and which ones did not. Work product will be a description of the communities and what community characteristics and strategies were major factors leading to the establishment of a postsecondary educational institution and which ones were not. 6. Analysis of the types and structures of institutions that provide postsecondary education and which ones are most likely to lead to the establishment of a four-year university in Chula Vista. This part of the study initially will focus on a review of CPEC documents and conversations with CPEC officials. Once the types and structures of postsecondary educational institutions that would most likely to be approved are identified, the research will shift to focus on which would be most feasible for the City of Chula Vista. Feasibility will be determined by reviewing the needs and characteristics of the City and the existence of other public and private postsecondary educational institutions in the area. Work product will be a summary of the research in a narrative form. (Note overlap of the research for this category with the research conducted for Section 8.A.8 below.) 7. Assessment of potential local and regional corporate and philanthropic funding capacity for the establishment of a four-year university in the City of Chula Vista. Through discussions with the City of Chula Vista officials, corporate entities interested in the establishment of a postsecondary educational institution in the City will be identified. Interviews will be conducted with leaders of at least five such entities to gauge the extent to which they are (I) supportive of the project concept and (2) willing and able to provide Page 20 7-26 financial support. Additionally the research tearn will identify and provide contact information for local and national private foundations, community foundations, and individual philanthropists who have a proven track record of funding similar ventures. Work product will be a \vritten summary of the interviews and a detailed profile of philanthropic organizations and individuals that have previously provided support to an education venture of this magnitude. 8. Ascertain views oflocal area university faculty and university deans about the establishment of a four-year university in Chula Vista to determine how decisions were made in the areas of: a. Student needs not being met by local colleges and universities b. The incenti ves that might motivate faculty and administrators to consider a position at a postsecondary educational institution in Chula Vista c. The type of postsecondary educational institution that would be most attractive to faculty members as teachers and researchers. d. The possibility of a partnership among existing postsecondary educational institutions and among corporate enterprises in the area. In-depth structured interviews will be conducted with 8-10 local area university academics (vice presidents, deans, and department chairs) by June 2010.. The interviews will be recorded and summarized systematically to identify areas of agreement and disagreement relative to the research questions. The work product will be a summary of the interviews. 9. Analysis of the factors that both facilitated and challenged the efforts of other California communities opting to establish an institution of higher education. Interviews will be conducted with university administrators, faculty and other key personnel to learn: a. The strategies they employed to design a postsecondary educational institution that met their needs and the impediments they faced b. The means they employed to design academic programs that attracted faculty and students This part will add context from the university perspective to the rcsults of the research regarding communities that have been successful in securing a postsecondary educational institution (see Part 5). Three to five interviews will be conducted. The work product will be an identification and description of the factors that led to a successful result and those that did not from the university perspective (the community leaders perspective is addressed in Section 8.A.5). This information will be particularly useful in designing the process for a favorable outcome by the City of Chula Vista. 10. Recommendations for specific instmctional areas and programs appropriate for the Chula Vista campus. Page 21 7-27 This part will be conducted simultaneously with Parts 2, 4, 7, and 8. The work product will be a set of recommendations about instructional areas and programs. CEP AL will begin work once funding is secured with the expectation that the research and final report will be completed within a four-month period. Presentation and dissemination of the report will be at the discretion of the City of Chula Vista. Final Report The final report will begin by discussing the nature of the research conducted for the study and then present the key findings for each of the ten areas of inquiry. The report will set forth options for next steps based on the research findings. It will run no more than 25 pages exclusive of appendices. Wherever possible, easy-to-understand figures, charts, and graphs will be incorporated in the body of the report. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverables Sections 8.A.1-4: May 31, 20 I 0 D. Date for completion of all Consultant services: December 31, 20 II. City has the option to extend this agreement for up to two additional years. Said extension shall be by mutual agreement between City and Consultant with out going through the City's Consultant selection process as outlined in the City's Municipal Code. The City Contract Administrator shall give notice of election to extend this agreement by sending notice by letter to Consultant not later than three months prior to expiration of the term. 9. Materials Required to be Supplied by City to Consultant: None 10. Compensation: A. (X) 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: $82.945.00, payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee Page 22 7-28 ( X) 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. ( ) 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 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 1. 2. 3. Fee for Said Phase $ $ $ ( ) I. Interim Monthly Advances. The City shall make interim montWy 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 Page 23 7-29 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 montWy advances shall not convert this agreement to a time and materials basis of payment. C. () Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (I) 0 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 Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) 0 Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $500,000 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 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. 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 $ ( ) Outside Services: Page 24 7-30 ( ) Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ $ $ 12. Contract Administrators: City: Craig Ruiz, Principal Economic Development Specialist City ofChula Vista 276 Fourth Ave. Chula Vista, CA 91910 Telephone: (619) 691-5248 Fax: (619) 585-5698 Consultant: Scott Himelstein, Director Center for Education Policy and Law University of San Diego Hill Hall, Suite 149 5998 Alcala Park San Diego CA 92110 Voice Phone (619) 260-7852 Fa.x Phone (619) 849-8149 13. Liquidated Damages Rate: ( ) $ ( ) Other: pcr day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest 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. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale ofreal 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 Page 25 7-31 (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: None 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: 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: 12710-6301 18. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ Page 26 7-32 ( ) Other Security: Type: Amount: $ ( ) Retention. Ifthis 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: Page 27 7-33