HomeMy WebLinkAbout2018-05-22; City Council; Resolution 2018-072RESOLUTION NO. 2018-072
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO APPROVE A
MEMORANDUM OF UNDERSTANDING AMONG THE CITIES OF CARLSBAD,
ESCONDIDO, OCEANSIDE, SAN MARCOS AND VISTA FOR THE PURPOSES OF
CONTINUING TO IMPLEMENT THE INNOVATE 78 ECONOMIC
DEVELOPMENT INITIATIVE IN AN AMOUNT NOT TO EXCEED $38,000
WHEREAS, collaboration with the cities of 78 Corridor is recognized as a strong strategy to
promote business expansion, attraction, and retention and workforce development in the region, and
is in line with the economic development goals of the City of Carlsbad; and
WHEREAS, in June 2014 the cities of Carlsbad, Escondido, Oceanside, San Marcos and Vista (78
Corridor Cities) agreed to participate in an economic development collaborative model called Innovate
78 to promote economic development opportunities along the 78 Corridor through a Memorandum of
Understanding (MOU); and
WHEREAS, to facilitate that goal, the 78 Corridor Cities selected the San Diego Regional
Economic Development Corporation (EDC) as the organization best suited to provide the required
services through a contract administered by the City of Carlsbad with each city providing equal financial
share of the EDC work effort; and
WHEREAS, in June 2016, the 78 Corridor Cities agreed to continue to work with the EDC to
provide the services through a new contract administered by the City of Escondido with each city
contributing equal financial share for the EDC work effort; and
WHEREAS, the Innovate 78 economic collaborative model has achieved great success in
supporting hundreds of companies, impacting thousands of jobs, and promoting partnerships and
providing resources for the North County business community; and
WHEREAS, in 2018, to continue the work of the Innovate 78 economic development initiative,
the 78 Corridor Cities have designated the City of San Marcos to contract with the EDC for the required
services as set forth in a MOU and contract and incorporated by this reference; and
WHEREAS, in turn, each City will contribute an equal financial share of $38,000 per city for the
EDC work effort, with the City of Carlsbad funds being appropriated from the Community and Economic
Development Department operating budget with no additional appropriation required; and
May 22, 2018 Item #1 Page 5 of 30
WHEREAS, the City Council desires at this time and deems it to be in the best public interest to
approve said MOU.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the City Council authorizes the City Manager to execute the Memorandum of
Understanding (Attachment A to this Resolution) on behalf of the city for the purposes
of continuing to implement the Innovate 78 Economic Development Initiative.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 22nd day of May, 2018, by the following vote, to wit:
AYES:
NOES:
ABSENT:
M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard.
None.
None.
(SEAL)
May 22, 2018 Item #1 Page 6 of 30
Oceanside City Document no. 18-D0240-l
5/9/2018 (19)
Page 1 of 6
MEMORANDUM OF UNDERSTANDING BY AND AMONG THE CITIES
OF CARLSBAD, ESCONDIDO, OCEANSIDE, SAN MARCOS
AND VISTA FOR FUNDING OF
THE INNOVATE 78 ECONOMIC DEVELOPMENT INITIATIVE
This Memorandum of Understanding ("MOU") is made and entered into on
2"'\'j/\ e" ~ll_, 2018 by and among the cities of Carlsbad, Escondido, Oceanside,
San Marcos and Vista (individually "City" and collectively, "78 Corridor Cities" or
"Cities").
RECITALS
A. The 78 Corridor Cities contracted with the San Diego Regional Economic
Development Corporation ("EDC") in July of 2014 to provide the required services to
roll-out the regional branding effort, lnnovate78, and to promote economic development
opportunities within the 78 Corridor region .
B. To continue the Innovate 78 Economic Development Initiative, the 78
Corridor Cities want the City of San Marcos to contract with EDC for the required
services. In turn, each City will contribute an equal financial share to compensate EDC
based on the terms set forth in this MOU.
C. The City of San Marcos has engaged the EDC for the Innovate 78
Economic Development Initiative pursuant to a services agreement ("EDC Services
Agreement"), which is incorporated herein by this reference. The work to be provided
by EDC is set forth in a Scope of Work which is attached as Exhibit B ("Scope of
Work").
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, the five Cities agree as follows:
1. EDC Services Agreement
(A) The Cities acknowledge that EDC and the City of Carlsbad and City of
Escondido have effectively executed the first four years of EDC Services Agreement on
behalf of the 78 Corridor Cities. The 78 Corridor Cities want to execute a one-year
agreement with an option to renew for an additional year as of June 30, 2018, which will
become effective upon the complete execution of this MOU by each of the five Cities.
The One Year Service Agreement with EDC will be managed by the City of San
Marcos. Performance of the EDC Services Agreement is intended to result in furthering
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Page 2 of 6
the Innovate 78 Economic Development Initiative as described in Exhibit A. For that
work, EDC will receive an annual total base contract amount of One Hundred and
Ninety Thousand ($190,000), assuming the full expense allotment is used ("Contract
Price").
(8) The City of San Marcos makes no representation regarding the
completeness, or quality of the work that EDC will produce under the EDC Services
Agreement. In directing EDC pursuant to the EDC Services Agreement, the City of San
Marcos will, when reasonably possible, provide direction based on the consensus of all
Cities. If consensus is not obtained after a consultation period with all 78 Corridor Cities
within Thirty Days (30) days, and if the Cities have not acted collectively to amend or
terminate this MOU or the EDC Services Agreement, the City of San Marcos reserves
the right to provide direction to EDC to assure that its efforts are not stopped, stalled or
otherwise delayed.
2. Cooperative Efforts
For EDC to successfully carry out the scope of work for the Innovate 78
Economic Development Initiative, each 78 Corridor City must: (1) provide EDC with
information about the city, its community, its businesses, and its other attributes; (2)
make available to EDC representatives from city government, civic groups, business
groups and others comprising the city; (3) identify venues within the city for meetings,
(4) participate in meetings with EDC and other 78 Corridor Cities for the development
and refinement of elements of the Innovate 78 Economic Development Initiative; and (5)
otherwise participate in the development of the Innovate 78 Economic Development
Initiative in the manner described in the Scope of Work.
3. Term
This MOU shall be effective as of the first date written above and shall continue
in full force and effect unless sooner terminated as provided in Section 4 of this MOU,
below.
4. Termination
Should any City wish to terminate this MOU, the City desiring to terminate this
MOU shall provide written notice of such termination to the 78 Corridor Cities at least
fifteen (15) days in advance of the termination date. Upon the expiration of the fifteen
(15)-day notice period, each City's rights and obligations to the other City as set forth
shall cease and be of no further force or effect.
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Page 3 of 6
3. Payments for Funding the EDC Services Agreement
(A) To fund the EDC Services Agreement, each City will allocate and pay on
July 1 to the City of San Marcos a sum of Thirty-eight Thousand ($38,000), representing
one-fifth of the Contract Price ("City Contract Share"). The City of San Marcos will hold
the City Contribution for each City, including the City of San Marcos, and collectively
use those City Contributions to make payments due to EDC under the EDC Services
Agreement.
(B) Should it be determined that a change in the Scope of Work is advisable
which will require additional funds beyond the base Contract Price as detailed in the
Scope of Work, the City of San Marcos shall notify the 78 Corridor Cities of the
additional services ("Additional Services") and the price for those services
("Supplemental Cost"). With that notice, the City of San Marcos will provide the 78
Corridor Cities with a proposed Addendum to the EOG Services Agreement ("Services
Agreement Addendum") describing the Additional Services to be provided at the
Supplemental Cost. Based on those materials, each 78 Corridor City will be asked to
execute an addendum to this MOU ("MOU Addendum ") to enable the City of San
Marcos to fund the Additional Services. Should each 78 Corridor City execute the MOU
Addendum, then within ten (10) days thereafter: (1) each 78 Corridor City shall transfer
to the City of San Marcos a sum equal to one-fifth of the Supplemental Cost; and (2) the
City of San Marcos will execute the Services Agreement Addendum.
(C) Following the completion or termination of the EDC Services Agreement,
the City of San Marcos shall determine if any amount is left unexpended from the
collective City Contributions and shall return to each 78 Corridor City a sum equal to
one-fifth of that amount.
4. TRADEMARK AND COPYRIGHT OF WORKS
The 78 Corridor Cities recognize that EDC will generate graphics, taglines and
other materials ("Works") which may require a trademark, copyright, or similar registry to
be protected under Federal or State law, which shall be obtained by EDC, or its
subcontractor, for the benefit of the 78 Corridor Cities. The 78 Corridor Cities
acknowledge that each, as an owner of a trademark, will responsible to police infringing
uses of its trademark. If the 78 Corridor Cities do not enforce its trademark rights or
otherwise fail to maintain quality control over the trademark (i.e. a naked license),
trademark rights may be lost. This is also true regarding the responsibility to police
infringing uses of their copyrights. The 78 Corridor Cities agree that they will
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Page 4 of 6
reasonably police their intellectual property rights and promptly take reasonable steps to
prevent infringing and unauthorized use of their trademarks and copyrights. Upon
learning of a potential infringement or unauthorized use, the 78 Corridor Cities shall
meet, discuss and select an appropriate course of action to reasonably prevent
infringement or unauthorized use of their intellectual property rights.
5. MISCELLANEOUS
(A) The terms of this MOU are intended by the parties as a final expression of
their agreement with respect to such terms as are included in this MOU and may not be
contradicted by evidence of any prior or contemporaneous agreement. This MOU
specifically supersedes any prior written or oral agreement between the parties.
(B) This MOU may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the
date first above written.
CITY OF VISTA CITY OF ESCONDIDO
By:~~ Jeff~. Epp~a~
ATTEST: ATTEST:
Kathy Valdez, City Clerk Diane Halverson, City Clerk
ROVED AS TO FORM: APPROVED AS TO FORM:
Darold Pieper, City Attorney Michael R. McGuinness, City Attorney
By:-1#~-
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May 22, 2018 Item #1 Page 10 of 30
Page 5 of 6
(Signatures continue on next page).
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May 22, 2018 Item #1 Page 11 of 30
CITY OF OCEANSIDE
ATTEST:
Zach Beck, City Clerk
By: -fJ2:~ u
APPROVED AS TO FORM:
John Mullen, City Attorney
ATTEST:
Page 6 of 6
CITY OF SAN MARCOS
By:_-;£------>.---->.-----=,,,c--+-----1---------
Jack
ATTEST:
Phillip Scollick, City Clerk
By:~
APPROVED AS TO FORM:
Helen Holmes Peak, City Attorney
By ~~~ .,
By: __)
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May 22, 2018 Item #1 Page 12 of 30
Exhibit B --Scope of Work-Innovate 78 Contract-July 2018 through June 2019
The following lnnovate78 scope of work was created with the input of the five cities as well as
recommendations from San Diego Regional EDC. This document serves as a plan for the goals
and activities to be managed by the lnnovate78 Regional EDC staff with the participation of the
economic development staff of each city.
2018 activities will focus on the following areas:
1. Business Expansion, Attraction and Retention (BEAR) Work
a. Company Project Work
b. Startup78 Ecosystem Development
c. Business Attraction Toolkit and Tracking
d. Industry Supply Chain Mapping: Life Sciences, Tech and Construction
2. Talent Pipeline Development
a. Career Development Events
b. Industry Talent Pipeline Mapping: Life Sciences, Tech
3. Data and Research
a. Track and update key economic indicators
b. Conduct research studies
4. Communications and Branding
a. Inbound marketing: Website Content, Print Collateral, Media Relations and
Social Media
b. Outbound marketing: Sponsorships, Community Engagement Events
5. Contract Support
a. Regional Integration
b. Strategic Partnerships
c. Reporting
1. BEAR Work
1. a. Company Project Work
Goal: Support economic growth along the 78 Corridor through retaining and expanding
businesses.
Individual company work is one of the primary ways that EDC learns of threats and
opportunities, as well as trends within or across industries. EDC staff will hold a minimum of 4
individual company meetings each month with economic development staff. EDC will also
provide monthly "intelligence" to individual cities and/or the five cities collectively, regarding
potential opportunities or threats to expansion and growth, attraction, or retention.
2018 2019
03 04 01 02
Cal Competes Workshops -lnnovate78 and California GO-BIZ office /* /*
sponsored events that inform businesses on how to apply for Cal Competes.
Regional EDC offers free application and guidance for companies. Success
measured in number of applicants. *if renewed in new fiscal year
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May 22, 2018 Item #1 Page 13 of 30
Business Meetings -Scheduled and impromptu meetings and conversations ../ ../ ../ ../
with business leaders to learn more about their business needs. Success
measured in number of meetings held, minimum of four each month.
Industry Roundtables -gatherings of industry leaders around innovative ../ ../
strategies to spur economic activity around a specific industry. Success measured
in completion of summary report from the meetings for lnnovate78 team to use to
create action plans.
Connectory Education Workshop -The Connectory is a cloud-based ../
directory that companies can use to connect with local vendors to improve their
supply chain. Success measured in new Connectory users and three new user
testimonials.
1. b. Startup78 Ecosystem Development
Goal: Further develop the entrepreneurial ecosystem along the 78 Corridor to retain, expand
and attract startup businesses.
EDC understands that there is a growing community of entrepreneurs, investors and support
services along the 78 Corridor. This initiative will convene leaders to create a more robust
network of connected entrepreneurs, capital resources, and support services.
2018 2019
Q3 Q4 Q1
Startup78 Workstreams Meetings -a Workstream is a sub-committee of the
Regional EDC's Economic Development Committee aimed at completing tasks to spur
economic development related to a specific industry. This Workstream is responsible for ../ ../ N/A
organizing and debriefing the Startup78 day during Startup Week.
Startup78 Meetup -Quarterly meetings hosted by community startups and
facilitated by Innovate 78. Measure of success: averaqe of 20 attendees per meetinq. ../ ../ ../
Collaborate with local startup resources to promote their events -
Resources for the startup ecosystem host workshops and speakers throughout the year. N/A N/A ../ We will maintain contact with key resources to extend their reach and encourage startup
participation. Measure of success: attend and promote 3-5 events.
Startup Week Planning Participation -work with San Diego Startup Week to
help plan content for the 2019 Startup Week activities in North County. ../ ../ ../
1. c. Business Attraction Toolkit and Tracking
Goal: Encourage the use of a toolkit for the 78 Corridor cities to use in cases of company
attraction efforts, and create guidelines to encourage local CEO/ business leader referrals.
EDC will encourage Economic Development manager use of a toolkit for business attraction
that the five cities can leverage to proactively attract businesses to the 78 Corridor.
2018 2019
Q3 Q4 01 Q2
Proactive outreach to local companies -create a target list of 25 companies N/A to request business attraction leads from. N/A ../
Facilitate five business attraction deals -utilize the proactive outreach list ../ and collaborate with economic development managers to leverage relationships with N/A N/A
the broker community to help locate five businesses to the corridor, one to each city.
Track attraction referrals -each economic development manager and the ../ ../ ../ lnnovate78 team will input prospective leads into the database. Success measured in
number of leads inputted into the data base by each economic development manager.
Q2
N/A
../
../
../
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May 22, 2018 Item #1 Page 14 of 30
Respond to RF ls in a timely manner -re spond to 100% of requests for
information and ro osals received.
,/ ,/ ,/ ,/
1. d. Industry Supply Chain Mapping
Goal: Identify supply chain companies for specific industries to identify gaps and encourage the
use of products and services supplied by local companies.
EDC will leverage conversations, roundtables and the Connectory meeting conducted in 2018 to
begin to identify local suppliers for three industries: life sciences, tech and construction
companies.
2018 2019
Q3 Q4 Q1 Q2
Identify company partners -solidify relationship with at least one company in N/A N/A ,/
each industry that is willinq to share their supply chain details.
Identify industry group partners -discover and partner with appropriate ,/ industry professional groups or trade associations that can provide insight into the N/A N/A
suoolv chain.
Create supply chain list by industry -build an excel sheet that can be turned N/A NIA ,/
into an infoqraphic that lists companies alonq the supply chain for each industry.
2. Talent Pipeline
2. a. Career Development Events
Goal: Develop and connect talent to industry.
The most prominent challenge for most businesses is finding and hiring qualified talent. EDC
will execute programming to bolster the talent pipeline along the 78 Corridor. In addition to
specific activities listed, EDC will identify challenges and trends through individual company
outreach and roundtable discussions mentioned previously in this document.
2018 2019
Q3 04 01
Sponsor lnnovate78 company participation at UCSD Career Fairs -fall ,/
and sorinq events.
Sponsor lnnovate78 company participation at CSUSM Career Fair-fall ,/ ,/
and sprinq events
Link to San Diego workshops -connecting talent to career opportunities in North
County. Success measured bv four companies enqaqed.
lnnovate78 Hackathon -collaborate with CSUSM and other relevant partners to N/A N/A encouraqe and support a hackathon event that addresses a 78 Corridor challenqe.
2. b. Talent Pipeline Mapping
Goal: Show students and professionals examples of how to achieve career goals through
regional education programs, company internships and available jobs.
Navigating career pathways can be challenging for new and established professionals. By
working with industry and educational partners EDC will work to create examples of talent
pipelines available along the 78 Corridor.
Q2
,/
,/
,/
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May 22, 2018 Item #1 Page 15 of 30
2018 2019
03 04 01
Maintain Relationships with Education Partners -one-on-one and
group meetings with key education partners CSUSM and the ,/ ,/ ,/
Community College leaders
Establish Private Sector Talent Pipeline Partners -Conduct meetings and ,/ achieve buy-in from HR professionals at key companies with internship programs. Goal N/A N/A
of at least two life sciences companies and two tech companies.
Life Sciences and Tech Talent Pipeline Document -Work with existing
industry and education partners to identify ways students and professionals can receive N/A N/A
traininq to achieve their career qoals.
3. Data and Research
Goal: Provide a better understanding of economic drivers in North County and provide data
reports and pamphlets that make data clear and easy to understand.
EDC strives to take a data-backed approach to its work. Research informs trends, highlights
challenges, and quantifies industry growth. EDC will conduct specific research for the 78
Corridor to understand key trends.
2018 2019
03 04 01 02
Digital Economic Dashboard -Ongoing updates to the data displayed on
the website.
,/ ,/ ,/ ,/
Small Business Study -research, survey and analysis of the small business ,/
environment along the 78 Corridor.
Research TBD -research , survey and analysis of new topic TBD in 2018. ,/
Explore City Data Sharing Possibilities -roundtable meetings with data ,/ ,/ architects at each city to start exploring how to better share data with each other N/A N/A
and the public to benefit the corridor
02
,/
,/
,/
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May 22, 2018 Item #1 Page 16 of 30
4. Communications and Branding
4. a. Inbound marketing: Website Content, Print Collateral, Media Relations and Social
Media
Goal: Further elevate the 78 Corridor brand to businesses, talent and key stakeholders.
While the scope of work focuses on core economic development work, it remains imperative to
maintain and grow the lnnovate78 brand strength. EDC will publish regular and periodic content
through various channels like social media, e-newsletter, website, and traditional media with the
goal of capturing contact information to build our target audience.
2018 2019
Q3 Q4 Q1 Q2
Strategic Messaging Document -create talking points for city officials based N/A N/A / on data and reaional success stories
Print version of the 78 Corridor Dashboard (updated quarterly) -design / / / / and maintain current data in a downloadable .pdf form available on the website
5 New Business Profiles -collect information on five businesses not currently N/A N/A / featured on lnnovate78.
Pitch Media Contacts on Stories -maintain relationships with press / / / / contacts to pitch lnnovate78 activities as stories for publication
Social Media and Digital Marketing Presence -ongoing twitter and blog / / / / posts plus email newsletter
4. b. Outbound marketing: Sponsorships, Community Engagement
Goal: Expand the 78 Corridor brand to new audiences through strategic event sponsorships.
EDC will continue to recommend sponsorships by lnnovate78 of strategic events and/or
programs that will draw exposure to the 78 Corridor. EDC will recommend events with qualified
audiences of businesses or talent, within or external to the region.
2018 2019
Q3 Q4 Q1 Q2
CALED annual conference -Date TBD /
EDC annual dinner -Date TBD /
ICSC RECon in partnership with Team California *dependent on / results of 2018 participation
5. Contract Support
5. a. Regional Integration
Goal: Ensure the 78 Corridor is represented in broader regional efforts.
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May 22, 2018 Item #1 Page 17 of 30
In addition to the specific services listed above, EDC will work to ensure inclusion of lnnovate78
cities and companies in broader EDC programming like:
• Regional Inclusive Growth Strategies
• MetroConnect
• San Diego Life. Changing Campaign
• Operation San Diego defense strategy
5. b. Strategic Partnerships
• Talent Pipeline Management Program
• Regional trade missions and relevant
inbound delegations
Goal: Engage organizations with domain expertise to expand support in areas beyond EOG
expertise.
At the request of the five cities, EDC will pursue strategic partnerships with organizations that
can bolster creative retail support strategies and/or further strengthen commercial real estate
activity. EDC will also work to develop strategic relationships with organizations that can quickly
implement core strategies, like Startup78. EDC will pursue discussions with the following
organizations to evaluate potential partnerships.
• ULI • San Diego Venture Group
• NAIOP • Entrepreneurs Organization
• Startup Week -San Diego • CSU San Marcos
• EvoNexus • SBDC/SBA
• San Diego Coworking Alliance • Chambers of Commerce
5. c. Reporting
Goal: Ensure the five 78 Corridor cities stay informed of progress at appropriate intervals.
EDC recognizes that reporting is an important way to maintain transparency and communication
with 78 Corridor stakeholders. To ensure timely and complete report, EDC will perform the
following updates:
• Monthly City Staff update with in-depth topic discussion
• Quarterly Mayor's update
• Semi-annual reporting to City Council as requested by lnnovate78 cities
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Exhibit 3
SAN MARCOS CITY COUNCIL MEETING
April 10, 2018
Exhibit "C"
CONSULTANT SERVICES AGREEMENT NO.
BE'IWEEN CITY OF SAN MARCOS AND
SAN DIEGO REGIONAL ECONOMIC DEVELOPMENT COPRORATION (EDC)
This Agreement for CONSULT ANT Services ("Agreement") is entered into as of this __ day of____,
20_, between the CITY of San Marcos, a chartered municipal corporation ("CITY"), and San Diego
Regional EDC, a California non-profit organization ("CONSULTANT") hereinafter referred to
individually as "Party" and collectively, the "Parties".
RECITALS
WHEREAS, CITY desires to obtain the services of CONSULTANT to continue the "Innovate
78"economic development initiative in collaboration with the cities of Carlsbad, Escondido,
Oceanside and Vista for one-year with an option to renew for an additional year; and
WHEREAS, CONSULTANT warrants and represents that they are experienced and staffed in a manner
such that they are and can deliver such services to CITY; and
WHEREAS, CITY has authorized the preparation and execution of this Agreement to retain the
services of CONSULTANT as set forth below.
NOW, THEREFORE, the Parties agree as follows:
1. Scope of Work
CONSULTANT will provide services to CITY as described in Exhibit B entitled "Scope of Work"
attached hereto and incorporated by reference. CONSULTANT must perform the Scope of Work in
accordance with Exhibit B and approved by CITY, but in no event will any work be performed under
this Agreement before the same is executed by both Parties.
CITY must consent in writing to any changes to the Scope of Work, with such consent to be in CITY's
sole discretion, affected by written addendum or amendment to this Agreement. Exhibit B will be
deemed revised in accordance with any revisions for which CITY's consent has been issued. Any
revisions to the Scope of Work for which CITY's consent has not been issued will be null and void.
2. Funding
This project is funded by Local Funds.
3. Compensation and Reimbursement
May 22, 2018 Item #1 Page 19 of 30
The CITY will pay the CONSULTANT in accordance with the conditions specified in "Exhibit A-MOU"
an annual sum of $190,000. Any breach of this Agreement will relieve CITY from the obligation to pay
CONSULT ANT, if CONSUL TANT has not corrected the breach after CITY provides notice and a
reasonable time to correct it.
4. Term of Agreement
This Agreement shall go into effect on July 1, 2018 contingent upon approval by CITY, and
CONSULTANT shall commence work after notification to proceed by CITY. The Agreement shall end
on June 30, 2019 unless extended by Agreement addendum or amendment, as provided in Section 6
of this Agreement, below, or earlier termination pursuant to Section 7 of this Agreement, below.
CONSULTANT is advised that any recommendation for Agreement award is not binding on CITY until
the Agreement is fully executed and approved by CITY.
5. Time of Essence
Time is of the essence with respect to the obligations of each Party under this Agreement.
6. Time for Completion of Work -Extensions
CITY and CONSULTANT have agreed on a time schedule, as provided in "Scope of Work-Exhibit B".
All professional services required by this Agreement must be satisfactorily completed within the
indicated time after CONSUL TANT receives written authorization from the CITY Manager or
Delegated Designee to proceed.
Should CONSUL TANT begin work in advance of receiving written authorization to provide any
professional services performed by it, then such services will be considered as having been done by
CONSULTANT at its own risk and as a volunteer unless said professional services are authorized by
the CITY.
Any delay determined to be occasioned by causes beyond the control of CONSUL TANT will be reason
for the granting of extension of time for the completion of such services. When such delay occurs,
CONSULT ANT must immediately notify the CITY in writing of the cause and the extent of the delay,
whereupon the CITY will ascertain the facts and the extent of the delay and grant an extension of time
for the completion of the professional services when, in his or her judgment, his or her findings of
fact justify such an extension of time. The CITY's findings of fact will be final and conclusive as to the
Parties. This is not intended to deprive CONSULTANT of its civil legal remedies in the event of a
dispute.
7. Termination
This Agreement may be terminated with or without cause by CITY. Termination without cause will
be effective only upon 15-day written notice to CONSULTANT. During said 15-day period
CONSUL TANT must continue to perform all consulting services in accordance with this Agreement,
after which CITY will pay CONSULTANT for its reasonable costs and expenses incurred prior to
receipt of the termination notice. This Agreement may be terminated by CITY for cause in the event
of any of the following: (i) a material breach of this Agreement by CONSULT ANT; (ii)
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May 22, 2018 Item #1 Page 20 of 30
misrepresentation by CONSULT ANT in connection with the formation of this Agreement or the
performance of services; and/or (iii) CONSULTANT's failure to perform services under this
Agreement as directed by CITY. Termination for cause will be effective immediately upon the
delivery of written notice of termination to CONSULT ANT, after which CITY will pay CONSULT ANT
for its reasonable costs and expenses incurred prior to receipt of the termination notice. Upon
termination of this Agreement, CONSULT ANT must return any confidential information which was
provided by CITY, in the event such information is in a format that makes it feasible to return to CITY.
8. Office Space and Clerical Support
Unless otherwise specified in Exhibit B, CONSULTANT will provide its own office space and clerical
support at its sole cost and expense.
9. Confidential Relationship
CITY may from time to time communicate to CONSULTANT certain information to enable
CONSULTANT to effectively perform the services. CONSULTANT must treat all such information as
confidential, whether or not so identified, and must not disclose any part thereof without the prior
written consent of CITY. CONSULTANT must limit the use and circulation of such information, even
within its own organization, to the extent necessary to perform the services. The foregoing obligation
of this Section 8, however, will 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 CONSUL TANT, hereafter
disclosed in publicly available sources of information; (iii) is now in the possession of CONSULTANT
without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to
CONSULTANT 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.
CONSULTANT must not disclose any reports, recommendations, conclusions or other results of the
services or the existence of the subject matter of this Agreement without the prior written consent
of CITY. In its performance hereunder, CONSULTANT will comply with all legal obligations it may
now or hereafter have respecting the information or other property of any other person, firm or
corporation.
Consultant must only use and/or disseminate such confidential information for purposes required
by this Agreement and/or otherwise required by federal, state or local law. Consultant acknowledges
and agrees that it is responsible for the unauthorized collection, receipt, transmission, access,
storage, disposal, used and disclosure of such confidential information under its control or in its
possession by Consultant and/or its employees, agents, contractors and representatives. If such
confidential information is disseminated by Consultant under circumstances not authorized by this
Agreement or City, Consultant must contact City immediately and work with City to remedy the
wrongful dissemination of such confidential information, including but not limited to cooperating
with and assisting City with any investigation of the data or security breach, providing City with
access to all relevant records, logs, files, data reporting and other materials required by City, and
facilitating interviews between the City and its employees, agents, contractors and/or
representatives. Any act or omission by Consultant and/or its employees, agents, contractors and
representatives that compromises either the security, confidentiality or integrity of the Confidential
Information or the safeguards put in place by City or Consultant relating to the protection of the
security, confidentiality or integrity of confidential information constitutes a material breach of this
Agreement for which City may immediately terminate the Agreement without further liability or
obligation to Consultant.
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In the event of termination of this Contract, CONSULT ANT agrees that it will return any confidential
information which was provided by CITY. In the event such information is in a format that makes it
feasible to return same to CITY.
10. Covenant Against Contingent Fees
CONSULT ANT declares that it has not employed or retained any company or person, other than a
bona fide employee working for CONSULTANT, to solicit or secure this Agreement, that it has not
paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission,
percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the
award or making of the Agreement. For breach of violation of this warranty, CITY has the right, but
not the obligation, to annul this Agreement without liability, or, at its sole discretion, to deduct from
the Agreement price or consideration, or otherwise recover the full amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
I
11. Ownership of Doruments
All memoranda, reports, plans, specifications, maps and other documents prepared or obtained
under the terms of this Agreement will be the property of CITY. CONSULTANT must promptly
provide such documentation to CITY in electronic and/ or other format as determined by CITY. In the
event of any re-use or alteration of the documents, such re-use or alteration will be the responsibility
of CITY. Upon expiration or earlier termination of this Agreement, CONSULTANT must return to CITY
any and all equipment, documents or materials and all copies made thereof which CONSUL TANT
received from CITY or produced for CITY for the purposes of this Agreement.
12. Conflict of Interest and Political Reform Act Obligations
During the term of this Agreement, CONSUL TANT will not act as Consultant or perform services of
any kind for any person or entity whose interests conflict in any way with those of CITY.
CONSULTANT will at all times comply with the terms of the Political Reform Act and the local conflict
of interest ordinance. CONSULTANT will immediately disqualify itself and will not use its official
position to influence in any way any matter coming before the CITY in which the CONSULTANT has
a financial interest as defined in Government Code Section 87103. CONSULTANT represents and
warrants that it has no knowledge of any financial interests which would require it to disqualify itself
from any matter on which it might perform services for CITY.
CONSULT ANT must comply with all of the reporting requirements of the Political Reform Act and
local ordinance. Specifically, CONSULT ANT must file Statements of Economic Interest with the CITY
Clerk in a timely manner on forms which CONSULT ANT must obtain from the CITY Clerk.
13. No Assignments/Work by Subcontractor
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise
specifically provided herein, or to which CITY, in its sole discretion, consents to in advance thereof in
writing. Any assignment or subcontracting in violation of this provision shall be void.
All subcontractors listed (if any) must provide a meaningful element of work within the defined
scope of work. Changes to the subcontractor list during the term of the Agreement shall be approved
in writing by the City prior to the start of work by the subcontractor. If applicable, Subcontractor's
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subject to prevailing wage will be required to register with the Department of Industrial Relations
(DIR).
14. Maintenance of Agreement Documentation
CONSUL TANT must maintain all books, documents, papers, employee time sheets, accounting
records and other evidence pertaining to costs incurred and must make such materials available at
its office at all reasonable times during the term of this Agreement and for three (3) years from the
date of final payment under this Agreement, for inspection by CITY and copies thereof must be
furnished, if requested.
15. Ownership of Records
All memoranda, reports, plans, specifications, maps and other documents prepared or obtained
under the terms of this Agreement will be the property of CITY. CONSULT ANT must promptly
provide such documentation to CITY in electronic and/or other format as determined by CITY.
16. Independent Contractor. Consultant Not an Agent
At all times during the term of this Agreement, CONSULT ANT will be an independent contractor and
will not be an employee, agent, partner or joint venturer of CITY. Except as CITY may specify in
writing, CONSULT ANT has no authority, expressed or implied, to act on behalf of CITY in any capacity
whatsoever as an agent. CONSUL TANT has no authority, expressed or implied, pursuant to this
Agreement to bind CITY to any obligation whatsoever. CITY has the right, but not the obligation, to
control CONSULTANT insofar as the results of CONSUL TANT's services rendered pursuant to this
Agreement; however, CITY does not have the right to control the means by which CONSULT ANT
accomplishes such services.
17. Warranties and Representations
CONSULTANT warrants and represents that CONSULTANT possesses the requisite skills and
resources to perform the services required by the Scope of Work in a reasonable and worker like
manner. CONSULT ANT further represents and decl.ares to CITY that it has all licenses, permits,
qualifications and approvals of whatever nature which are legally required to practice its profession,
and that it will at its sole cost and expense, keep in effect at all times during the term of this
Agreement, any such license, permit or approval.
18. Personnel
CONSULTANT must assign qualified and certified personnel to perform services under this
Agreement. CONSULT ANT's personnel must at all times comply with CITY's drug and alcohol policies
then in effect. CITY has the right, but not the obligation, to review and disapprove personnel
performing work under this Agreement. CITY has the unrestricted right, but not the obligation, to
require the removal of any person(s) assigned by CONSULTANT by giving oral or written notice to
CONSULTANT to such effect.
19. Licenses. Permits. Etc.
CONSULTANT represents and declares to CITY that it has all licenses, permits, qualifications and
approvals of whatever nature which are legally required to practice its profession. CONSULTANT
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represents and warrants to CITY that CONSULTANT will, at its sole cost and expense, keep in effect
at all times during the term of this Agreement, any license, permit or approval which is legally
required for CONSULTANT to practice its profession.
20. Insurance
20.1 Policies. CONSULTANT must obtain and maintain during the entire term of this
Agreement the following insurance policies from companies admitted or authorized in the
State of California to transact the insurance business in the class of the type provided and
must have a general policyholder's rating of not less than an "A" and a financial size of ten
million dollars ($10,000,000) ( currently Class V) or better in the most current A.M. Best's
Key Rating Guide; which standards will be met by such the issuing company and not by means
of the standing or assets of their parent, subsidiary or affiliate entities:
a. Comprehensive General Liability. Coverage shall include premises-operations,
products/completed operations (10 years), broad form property damage, personal
injury, bodily injury and blanket contractual liability, shall be provided on a "pay on
behalf' basis, with defense costs payable in addition to policy limits, there shall be no
cross-liability exclusion, there shall be no land subsidence exclusion, and there shall be
no prohibition against payment of a SIR or deductible in the event of the named insured's
failure to do so, in the following coverage amounts:
i. $1,000,000 per occurrence (property damage and bodily injury);
ii. $2,000,000 general aggregate;
iii. $2,000,000 products/completed operations aggregate.
b. Automobile Liability. Coverage shall include owned, hired and non-owned vehicles, shall
be provided on a "pay on behalf' basis, with defense costs payable in addition to policy
limits, there shall be no cross-liability exclusion, and there shall be no prohibition against
payment of a SIR or deductible in the event of the named insure d's failure to do so, in the
following coverage amounts:
i. $1,000,000 per accident combined single limit (bodily injury and property damage).
c. Professional Liability Insurance with policy limits ofnot less than $1,000,000 combined
single limits per claim and annual aggregate.
d. Workers' Compensation Insurance in amounts in accordance with statutory
requirements.
Limits may be met by a combination of primary and umbrella/excess liability policies, provided that:
(1) the umbrella/excess policy carriers meet the requirements noted above, (2) there is sufficient
umbrella/excess coverage provided that meet or exceed the specified coverage requirements of GL
or Auto, so that any claim event will not result in a deficiency in any of the coverage requirements
described above; and (3) umbrella/excess insurance amounts may be applied only once to meet the
insurance coverage requirement for only one line of deficient underlying insurance.
20.2 Endorsements. Endorsements must be obtained so that each policy contains the
following four provisions, the wording for which will be to the satisfaction of the City Attorney:
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a. Additional Insured. (Not required for Professional Errors and Omissions Liability
Insurance or Workers' Compensation.) "City ofS'an Marcos and its elected and appointed
boards, officers, agents and employees are additional insureds with respect to this subject
project and Agreement with CITY".
b. Preferred Forms. General Liability: CG 2010 1185, CG 2037 1001 or the equivalent.
c. Notice. "Said policy shall not terminate, nor shall it be canceled or reduced in coverage
without thirty (30) days' written notice to the City of San Marcos."
d. Primary Coverage. "The policy provides primary coverage to City of San Marcos, and its
elected and appointed boards, officers, agents, and employees. It is not secondary or in
any way subordinate to any other insurance or coverage maintained by City of San
Marcos."
e. Waiver of Subrogation. "We waive any right of recovery we may have against the City of
San Marcos and its elected and appointed boards, officers and employees because of
payments we make for injury or damages arising out of your ongoing operations or your
work done under Agreement with the City of San Marcos."
20.3 Insurance and Indemnity Obligations Separate. The requirements as to the types and
limits of insurance coverage to be maintained by CONSUL TANT as required by this Section 19, and
any approval of such insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this
Agreement including, but not limited to, the indemnification provision.
20.4 Subcontracts. CONSULT ANT shall require and verify that all subcontractors maintain
insurance meeting all the requirements stated herein, including but not limited to ensuring the CITY
is listed as additional insured on insurance required from subcontractors. CONSULTANT agrees to
monitor and review all such coverage and assumes all responsibility for ensuring that such coverage
is provided in conformity with the requirements of this section. CONSULTANT agrees that upon
request, all agreements with subcontractors and all others engaged in the project will be submitted
to CITY for review.
20.5 Special Risk or Circumstance. CITY reserves the right during the term of the contract
to change the amounts and types of insurance required by giving the CONSULTANT ninety (90) days
advance written notice of such change based on a material change in the nature or scope of the risk,
experience, or events during performance, regulatory actions or changes, statutory or case law
changes, insurer's actions, coverage restrictions, coverage availability, or other special circumstances
21. Insurance Certificates
CONSULTANT must provide CITY with certificates of insurance and accompanying endorsements
showing the insurance coverages described in the paragraphs above, in a form and content approved
by CITY, prior to beginning any work under this Agreement.
CITY utilizes an online Evidence of Coverage database, PINS Advantage, to electronically maintain
the insurance documents required by this Section. CITY will send CONSULTANT an automatic email
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through the PINS system with information to provide to CONSULTANT's insurance representative to
upload insurance documents into the CITY's system.
22. Indemnification
To the fullest extent permitted by law, CONSUL TANT must indemnify, protect, defend and hold
harmless the CITY of San Marcos and its elected and appointed boards, officers, agents and employees
(collectively, "CITY Indemnified Parties") from and against any and all actions, judgments, losses,
liabilities, damages, costs and expenses, including without limitation reasonable attorneys' fees and
court costs of any kind whatsoever resulting from or in any way connected with any personal injury,
including death, or property damage that may arise out of, pertain to, or relate to the performance of
this Agreement by CONSUL TANT, its employees, agents, subconsultants or subcontractors, including
whether caused by the active or passive negligence of CITY Indemnified Parties, excepting acts
caused by the sole or willful misconduct of CITY Indemnified Parties.
23. Dispute Resolution
The Parties agree to make a diligent, good faith attempt to resolve any claim, controversy or dispute
arising out of or relating to this Agreement, or concerning the breach or interpretation thereof. If a
dispute arises between the Parties that cannot be settled after engaging in good faith negotiations,
the parties agree to resolve the dispute pursuant to the following procedures. Each Party shall
designate an authorized representative to negotiate the dispute, and said representative will attempt
to resolve the dispute by any means within their authority.
,
If the issue remains unresolved after thirty (30) days, the Parties will resolve any remaining dispute
through (non-binding) arbitration. The non-binding arbitration process will provide for the
selection by both Parties of a disinterested third person arbitrator within thirty (30) days. If the
Parties cannot agree upon an arbitrator, then a single neutral arbitrator will be appointed pursuant
to Section 1281.6 of the Code of Civil Procedure. The place of the arbitration shall be in San Diego
County, California. The arbitrator will follow the substantive laws of the State of California, including
rules of evidence, and the arbitrator's decision will be supported by substantial evidence. The
arbitrator will have no power, authority or jurisdiction to award any punitive or exemplary
damages. The award will be made within six (6) months, and the prevailing Party will be entitled to
an award of reasonable attorneys' fees, CONSUL TANT and expert witness fees, and any and all costs
for services rendered to or for such prevailing Party. If non-binding arbitration does not result in
settlement of the dispute within six (6) months, either Party may pursue other legal remedies for a
determination of the dispute.
This provision is not intended to, nor shall it be construed to, change the time periods for filing any
claim or action under Government Code Sections 900, et seq. This dispute resolution process is a
material condition to this Agreement and must be exhausted as an administrative remedy prior to
either party initiating litigation. By executing this Agreement, you are agreeing to the dispute
resolution process described in this section, and are giving up any rights you might possess to have
the dispute litigated in a court or by jury trial.
CITY (init'ls) CONSULTANT (init'ls)
24. Notices
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Any and all notices, demands, requests, consents or other communications, including but not limited
to billings and payments which are required or permitted to be made hereunder must be in writing
and must be sent by personal delivery; first-class mail, return receipt requested; overnight or express
mail service; or facsimile. Notices will be deemed to have been received: upon delivery if personally
delivered; seventy-two (72) hours after deposit in the U.S. Mail; on the day of transmission via
facsimile unless sent after business hours and in that event, on the next business day. Notices may
be sent to the following addresses; the parties may deliver notice of change of address or delivery
information in the manner outlined in this Section 23.
CITY (Original):
CITY (Copy):
CONSULTANT:
City of San Marcos
Finance Department
1 Civic Center Drive
San Marcos, CA 92069-2918
Facsimile: (760) 744-9520
City of San Marcos
Administration
Attn: Economic Development Manager
1 Civic Center Drive
San Marcos, CA 92069-2918
Facsimile: (760) 591-4135
Facsimile: _______ _
25. Entire Agreement. Modification
This Agreement, and any exhibits and attachments hereto, constitutes the entire understanding
between the Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
discussions, representations, agreements and/ or understandings concerning the same. This
Agreement may not be amended, modified or altered except by an agreement in writing and signed
by both Parties. No verbal amendment or implied covenant will change any provision of this
Agreement.
26. Exhibits and Recitals
The attached Exhibits and all Recitals referenced in this Agreement, and each of them, are hereby
incorporated by reference into this Agreement as though set forth in full at this point.
27. Counterparts
This Agreement may be executed in any number of counterparts, each of which will for all purposes
be deemed to be an original, and all of which taken together will constitute one and the same
document.
28. Construction
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The terms and provisions of this Agreement will be liberally construed to effectuate the purpose of
this Agreement. In determining the meaning of, or resolving any ambiguity with respect to, any word,
phrase, or provision of this Agreement, no uncertainty or ambiguity will be construed or resolved
against either Party under any rule of construction, including the Party primarily responsible for the
drafting and preparation of this Agreement.
29. Binding Agreement
This Agreement will inure to the benefit of and be binding upon the Parties and their respective
successors.
30. Severability
The provisions of this Agreement are severable. In the event that any provision of this Agreement,
or any element thereof, is found to be invalid, illegal, or unenforceable by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will not be affected and will
remain in full force and effect.
31. Waiver
No waiver by either Party of any term or provision of this Agreement will be deemed or will
constitute a waiver of any other provision of this Agreement, nor will any waiver constitute a
continuing waiver unless otherwise expressly provided in writing.
32. Definitions
The terms "shall" and "will" used throughout this Agreement are intended to be mandatory.
33. Gender
Whether referred to in the masculine, feminine, or as "it," CONSULT ANT means the individual or
corporate CONSULTANT and any and all employees of CONSULT ANT providing services hereunder.
34. Applicable Laws
CONSULTANT shall observe and comply with all local, state and federal laws, rules, ordinances and
regulations in the performance of its obligations under this Agreement.
35. Governing Law. Venue
This Agreement will be construed under and in accordance with the laws of the State of California,
and appropriate venue for any action or proceeding arising from this Agreement shall be had in the
Superior Court of San Diego County, North County Branch.
36. Labor Requirements
NOTICE IS HEREBY GIVEN that payment of prevailing wages and compliance with the requirements
of California Labor Code Sections 1770 et. seq. IS NOT required for this project.
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[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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37. Authority to Sign
The Parties each represent that all requisite approvals have been secured and that the persons
executing this Agreement on their behalf have full authority to do so and to bind such Party to
perform pursuant to the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
AGENCY:
City of San Marcos,
a Chartered Municipal Corporation
By: _________ _
Jack Griffin, City Manager
APPROVED AS TO FORM:
By: _________ _
Helen Holmes Peak, City Attorney
ATTEST:
By: _________ _
Phillip Scollick, City Clerk
CONSULTANT:
San Diego Regional EDC
a California non-profit organization
By: ________ _
Name: ________ _
Title: ________ _
By: ________ _
Name: ________ _
Title: ________ _
[NOTE: In the event CONSULTANT is a Corporation, the signatures of two separate persons holding
different offices must be provided.]
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