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HomeMy WebLinkAbout2014 CON San Diego State University - Health and Safety ProjectsSDSU Agreement #40089846 Exhibit Al PROJECT AGREEMENT BETWEEN THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY SYSTEM, ON BEHALF OF SAN DIEGO STATE UNIVERSITY AND THE CITY OF NATIONAL CITY This Agreement is entered into on this 22 day of January , 20 14 by and between the City of National City, a municipal corporation (the "City") and the Board of Trustees of the California State University system, on behalf of San Diego State University, Division of Undergraduate Studies ("SDSU"). RECITALS WHEREAS, the City and SDSU entered into a Memorandum of Understanding ("MOU") dated February 4, 2014, which outlines the general parameters of the collaboration between the City and SDSU; and WHEREAS, the MOU states that the City and SDSU will enter into a separate Project Agreement for each project; and WHEREAS, the City and SDSU desire to enter into this Project Agreement for the development of projects related to health and safety for the City. NOW THEREFORE, the City and SDSU agree as follows: AGREEMENT 1. ENGAGEMENT OF SDSU. The City agrees to engage SDSU, and SDSU agrees to perform the services set forth in this Agreement in accordance with all terms and conditions contained herein. 2. SCOPE OF SERVICES. SDSU shall assist the City with the development of projects and programs that enhance the health and safety of the City's residents. SDSU will perform services as set forth in the attached Exhibit "Al". 1. PROJECT COORDINATION AND SUPERVISION. Brad Raulston is designated as the Project Coordinator for the City and will monitor the progress and execution of this Agreement. SDSU shall assign a single Project Coordinator to provide supervision and have SDSU Agreement #40089846 Exhibit Al overall responsibility for the progress and execution of this Agreement for SDSU. Jessica Barlow is designated as the Project Coordinator for SDSU. 2. COMPENSATION AND PAYMENT. The total cost for all work described in Exhibit "Al" shall be a fixed price of $25,000. Payment shall be in one lump sum and is due upon completion of the services as set forth in Exhibit "Al". This payment is the only financial responsibility of the City. The City shall not be responsible for any other expenses related to the performance of the services pursuant to this Agreement. 5. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on January 22, 2014. The duration of this Agreement is for the period of January 22, 2014 through August 31, 2015. Completion dates or time durations for specific portions of the Project are set forth in Exhibit "Al". 6. INDEPENDENT CONTRACTOR. Both parties in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. SDSU's employees and students are not employees of the City, and are not entitled to any of the rights, benefits, or privileges of the City's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. 7. CONTROL. Neither the City nor its officers, agents, or employees shall have any control over the conduct of SDSU or any of SDSU'S employees, students, or volunteers, except as herein set forth, and SDSU or SDSU's agents, servants, employees, students, or volunteers are not in any manner agents, servants, or employees of the CITY, it being understood that SDSU, its agents, servants, employees, students, and volunteers are as to the CITY wholly independent contractors, and that SDSU's obligations to the City are solely such as are prescribed by this Agreement. 8. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned by SDSU without the prior written consent of the City. SDSU shall not subcontract to any other person, entity or agency the performance of any of its obligations under this Agreement without the prior written consent of the City. 9. COMPLIANCE WITH APPLICABLE LAW. SDSU, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. 10. NON-DISCRIMINATION PROVISIONS. SDSU shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. SDSU 2 SDSU Agreement #40089846 Exhibit Al will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 11. CONFIDENTIAL INFORMATION. The City may from time to time communicate to SDSU certain confidential information to enable SDSU to effectively perform the services to be provided herein. Such confidential information shall be in writing and shall be clearly marked as "CONFIDENTIAL INFORMATION" on the face of such document. SDSU shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the City. SDSU shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 11, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of SDSU, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of SDSU without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to SDSU by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. If SDSU receives a request for documents pursuant to the California Public Records Act, California Government Code sections 6250 through 6259, which SDSU received from the City regarding the subject matter of this Agreement, SDSU shall notify the City as soon as possible to give the City the opportunity to object and seek any appropriate relief. In its performance hereunder, SDSU shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. 12. INDEMNIFICATION AND HOLD HARMLESS. A. The California State University and SDSU agree to defend, indemnify and hold harmless the City of National City, its officers, employees, agents, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the California State University's and SDSU's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, employees, or volunteers. The indemnity, defense, and hold harmless obligations contained herein shall survive 3 SDSU Agreement #40089846 Exhibit Al the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. B. The City agrees to defend, indemnify and hold harmless the California State University and SDSU, its trustees, officers, employees, agents, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the City's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the California State University and SDSU, its trustees, agents, officers, or employees, or volunteers. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. SDSU. 13. STATUS OF STUDENTS. Students are not officers, agents, or employees of 14. INSURANCE. A. The California State University system has elected to be insured for its General Liability exposure through the self -insured CSU Risk Management Authority. B. The State of California has elected to be self -insured for its vehicle liability and Workers' Compensation and property exposures. As a State agency, the California State University, Office of the Chancellor, the Trustees. and the CSU system of campuses are included in this self -insured program. C. SDSU shall provide professional and personal general liability coverage for students performing services pursuant to this Agreement through the Student Academic Field Experience for Credit Liability Insurance Program (SAFECLIP). The coverage limits under this program are $1,000,000.00 for each Loss and S2,000,000.00 Aggregate for all Covered Parties, and not per student. The City shall be named as an additional insured under the SAFECLIP Program. D. The self-insurance and SAFECLIP Program above shall constitute primary insurance as to the City, its officers, employees, and volunteers, so that any policies held by the City shall not contribute to any loss under said self-insurance and SAFECLIP Program. Said self-insurance and SAFECLIP Program shall provide for thirty (30) days prior written notice to the City of cancellation or material change. 4 SDSU Agreement #40089846 Exhibit Al E. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City's Risk Manager. If such self- insurance and SAFECLIP Program are not kept in full force and effect at all times during the terms of this Agreement, the City may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 15. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, the parties shall pay their own costs and expenses of suit, including attorneys' fees. 16. DISPUTE RESOLUTION. Any dispute arising under the terms of this Agreement which is not resolved within a reasonable period of time by the Project Coordinators of the City and SDSU shall be brought to the attcntion of the City Manager, or designee, of the City and the Associate Vice President, Financial Affairs, or designee, of SDSU for joint resolution. If resolution of the dispute through these means is pursued without success, either party may seek resolution employing whatever remedies exist in law or equity beyond this Agreement. Despite an unresolved dispute, the City and SDSU shall continue without delay to perform its responsibilities under this Agreement. The Parties shall keep accurate records of its services in order to adequately document the extent of its services under this Agreement. 17. TERMINATION. If either party wishes to terminate this Agreement due to non- performance or failure to meet expectations, the terminating party will consult with the other party to seek resolution. Notwithstanding the above, this Agreement may be terminated with or without cause by the either party upon 30 days written notice to the other party. In the event of termination, all finished or unfinished Reports, Data, Methods, Analysis, Recommendations, and other documents prepared by SDSU, whether paper or electronic, shall immediately be delivered to the City. SDSU 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 the Notice of Termination, not to exceed the amounts payable pursuant to this Agreement, and less any damages caused the City by SDSU, if any. 18. LOGOS. Neither party shall use any identifying logos or marks of the other without the express written permission of the other party. 19. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally 5 SDSU Agreement #40089846 Exhibit Al delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To City: To SDSU: Brad Raulston Executive Director City of National City 1243 National City Boulevard National City, CA 91950-4301 Cathy Garcia Director Reference Agreement #40089846 Al Contract and Procurement Management San Diego State University 5500 Campanile Dr. AD 116 San Diego, CA 92182-1616 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 20. CAPACITY AND AUTHORITY. All individuals signing this Agreement represent and warrant that they have the necessary capacity and authority to act for, sign and bind the respective party on whose behalf they are signing. 21. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. 6 SDSU Agreement #40089846 Exhibit Al B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The tel of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000). the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity 7 SDSU Agreement #40089846 Exhibit Al to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY Leslie Deese, City Manager PROVED AS TO FORM: alio, CI pia G. Sil 0 City Attorney SDSU Agreement #40089846 Exhibit Al SAN DIEGO STATE UNIVERSITY By: Agnes Wong Nickerson Associate Vice President Financial Operations By: 8 0,7L- Kathy L'a Master Associate Vice President for Academic Affairs Exhibit A 1 For the Corner Store Conversion project, SDSU shall conduct surveys, prepare business models and prepare marketing plans. SDSU shall prepare a Disaster Preparedness and Response Plan. SDSU shall survey residents on the Westside regarding noise levels. SDSU shall take measurements of the noise levels and make recommendations regarding noise mitigation. SDSU shall take measurements of the air quality on the Westside and make recommendations for air pollution mitigation. SDSU shall assist City staff with the coordination of the City of National City Community Service Day. The City shall provide SDSU with all necessary data and background information for each project and program listed. 9 SDSU Agreement #40089846 Exhibit Al CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk SAN DIEGO STATE UNIVERSITY Development of Health and Safety Projects Denise Davis (Planning) Forwarded Copy of Agreement to San Diego State University