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Contract and Procurement Management Business and Financial Affairs
5500 Campanile Drive
San Diego CA 92182-1616 619-594-5243/619-594-5919 (fax)
Web address: http://bfa.sdsu.edu/prosrvcs/
October 8, 2009
Attn: Loretta A. Hearn, Executive Director 5500 Campanile Dr.
San Diego CA 92182
Cathy Garcia, C.P.M. Manager
SUBJECT: Research Site Agreement #40067481
Any modifications or renovations of the space must be performed and managed by the University. After obtaining approval from the Dean, College of Professional Studies and Fine Arts, contact SDSU Physical Plant Work Control, 619-594-4754 to initiate your work request.
At this time we are attaching the exhibits to your copy only. All exhibits will be attached to the remaining copies when you return them to us.
Please attach a certified copy of the resolution, order, motion, or ordinance of the local governing body who, by law, has power to execute the proposed contract authorizing execution by the official signing the contract.
A Certificate of Insurance is required in accordance with the agreement requirements. Please forward the appropriate Certificate with Endorsement to Contract & Procurement Management.
Attached is the above referenced fully executed Agreement for your files.
Cc: Bob Schulz, BFA
Dean Gattas, PSFA Kathy LaMaster, PSFA
Lawrence Peralez, Business Services Deb Sandy, BFA
Mark DeMay, Accounting File
SDSU Agreement #40067481 Page 1 of8
RESEARCH SITE AGREEMENT BETWEEN
SAN DIEGO STATE UNIVERSITY AND
San Diego State University (hereinafter "University") hereby licenses as of October 1, 2009, on the terms hereinafter set forth to Watchdog Institute a California Corporation, (hereinafter referred to as "Licensee") the right to utilize University campus space located in Professional Studies and Fine Arts Building, School of Journalism & Media Studies, 3rd Floor, Room 327, 5500 Campanile Drive, County of San Diego, State of California (hereinafter referred to as ''Facilities'') to conduct Licensee's business and for instructionaily related research and development to support a new master's degree program for the School of Journalism & Media Studies. This license is granted upon the following terms and conditions which each party acknowledges and accepts by signature below and both parties hereby agree that the License is granted for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged.
1. The Facilities shall consist of Office Space in Professional Studies and Fine Arts Building (PSFA 327) including utilities. The total space is approximately 175.5 square feet. The Licensee will provide their furniture and equipment. The space is more fully described in the attached Exhibit A, Floor Plan, consisting of one page, which by reference is hereby incorporated and made a part of this Agreement. In connection therewith Licensee has the right to do all work necessary to prepare and maintain the Premises for Licensee operations. All of Licensee construction and installation work shall be performed at Licensee's sole cost and expense and in a good and workmanlike manner. Title to the Facilities shall be held by University. All of Facilities shall remain University property and are not fixtures. Licensee has the right to remove all equipment and furnishings purchased by Licensee at its sole expense on or before the expiration or earlier termination of the License. Prior to any construction or remodeling of the Facility, Licensee shall submit plans to University for approval.
University shall approve any plans and proposed plan modifications required to remodel the Facility prior to construction and installation. University shall give such approval or provide Licensee with its request for changes within five (5) working days of University's receipt of Licensee plans. University shall not be entitled to receive any additional consideration in exchange for giving its approval of Licensee plans. The actual date the Facilities are substantially completed shall be referred to as the "Completion Date."
The Facilities shall be modified by Licensee at its own expense.
University represents and warrants that Licensee will be able to contact University personnel twenty-four hours a day at (619) 594-2802; in the event of emergency, if Licensee has attempted to contact the University but has been unable to reach University personnel, Licensee shall be allowed to access the Premises. Identification
of Licensee staff will be provided to University for purposes of record check by the Department of Public Safety.
2. University hereby grants to Licensee a License to use the Facilities for an initial term of twenty four (24) months with an option of renewal for an additional twelve (12) month period upon agreement of both parties commencing on the date Licensee identifies. The University recognizes the value of the in kind contributions that Licensee will be making to the University as detailed in the attached In Kind Contributions Summary, Exhibit B, consisting of one page, which is hereby referenced and made a part of this agreement. In acknowledgement of such contributions, the University will waive the rent ($263.25IMO) and maintenance/utilities ($157.95/MO) for the initial agreement term. The University Office of the Provost in consultation with the College Dean will review the in kind contributions annually at the end of the spring semester. The University Office of the Provost in consultation with the College Dean will determine if value of the in kind contributions is commensurate to value of the current rent. At the end of the initial agreement term and annually at the beginning of each renewal term the monthly rental and maintenance/utilities rates shall be increased at a fixed rate of three percent (3%). In the event the University determines the in kind contributions are not comparable to the current rental rate with any increases, Licensee shall immediately be obligated for payment to the University for rental and maintenance/utilities. Should this occur, in kind contributions shall no longer be a valid form of payment for the remainder of the lease term.
During the term of this License, Licensee shall utilize the Premises as an instructional research facility, for support in the development of a new master's degree program and to conduct investigative journalism activities in support of its mission and for no other purpose without the permission of University. Licensee shall not use, nor allow others to use, the Premises for any other purpose without the approval of University, which approval shall not be unreasonably withheld.
3. It is understood and agreed that Licensee's ability to use the Premises may be dependent upon Licensee obtaining any certificates, permits, Licenses, and other approvals which may be required from any federal, state or local authority. University shall cooperate with Licensee but at no expense to University and University shall take no action which will adversely affect the status of the Property or Premises with respect to Licensee's proposed uses thereof.
4. The University agrees to furnish all necessary utilities for the said property, including heat, water, phone and data lines, and also light if the property is specified to be "with lights" except when such services cannot be supplied for causes beyond the control of the University and except when there is a failure or defect in the physical plant or utility lines, whether or not such failure or defect is beyond the control of the University, if the failure or defect cannot reasonably be remedied in time for use by the Licensee during the term hereof. The University agrees to furnish all janitorial services required for said property. Licensee shall be responsible for the initial activation costs and monthly charges of telephone and data lines.
5. During the operation of the Facilities, Licensee shall comply with all applicable laws ordinances, regulations and requirements of federal, state, University and local governmental authorities having jurisdiction over the Property.
Licensee shall observe campus parking rules and regulations al all times. No properly issued citation will be waived. It will be the responsibility of the Licensee to obtain and provide necessary parking permits to personnel requiring access. University employees pay for parking; permits required by Licensee or Licensee employees must be paid for by the Licensee and/or Licensee's employees. Contact the Department of Public Safety, 619-594-6671, for information. The vehicle laws of the State of California, the ordinances of the City of San Diego, and the parking and traffic regulations of San Diego State University are in effect on University controlled property twenty four (24) hours a day.
Licensee shall comply with the key control policy issued by the University's Department of Public Safety. It is the Licensee's responsibility to obtain a copy of this policy. Licensee must notify the Department of Public Safety within twenty four (24) hours of the discovery of lost of stolen keys. In the event of loss, Licensee shall be held liable for the total cost of labor and ma.terials to re-key the entire area accessible with the lost keys. Unauthorized duplication or use of key to a public building is a punishable offense under California Statutes.
6. Campus-owned furniture or apparatus may not be removed or displaced by Licensee or any agent, employee, or invitee of the Licensee without permission of the University. The Licensee shall cause any furniture or apparatus displaced to be replaced to the satisfaction of the University immediately after any event or occasion for which the property is used by Licensee.
7. Licensee shall maintain the Premises in a neat and clean condition and upon completion shall remove all rubbish, tools, equipment and surplus materials, leaving the Premises in a "broom clean" or equivalent condition.
8. Licensee shall conduct its operations at all times while on University Property in such a manner as to cause no unreasonable interference with the normal operations and activities of University, and its guests.
9. Licensee shall repair and restore to its original condition, reasonable wear and tear and damages beyond the control of or without the fault or neglect of Licensee excepted, any of the University's property, including (but not necessarily limited to) roads, buildings and fences, which may be damaged or destroyed in connection with the exercise by Licensee or its agents, employees or contractors of the rights granted by this License. Such repair or replacement shall be made within a reasonable time but in no case later than fourteen (14) days after the date of written notice from University to Licensee of such damage or loss.
10. Licensee shall keep the Premises free from any liens arising from work performed, material furnished, or obligations incurred by Licensee. Notwithstanding the foregoing, Licensee shall have the right to contest the validity, nature or amount of any such lien, upon the final determination of such questions, shall immediately pay any adverse judgment rendered with all proper costs and charges and shall have the lien released as its own expense. If Licensee desires to contest any such lien, then prior to commencing such contest, it will furnish University with a bond, if requested, to secure the payment of such obligation.
1l. The University agrees that the Licensee, while keeping and performing the covenants herein contained, shall at all times during the existence of this License peaceably and quietly have, hold, and enjoy the Licensed premises, without suit, trouble or hindrance from the University, or any person claiming under University.
12. Nothing in this License shall be construed as a dedication by University to Licensee or to the public, or as a grant to Licensee of an easement, right-of-way, or other real property interest in any portion of the campus or Property.
13. University shall not be liable for damages or loss of income by Licensee due to disruption of any public services except when damage or loss of income is the direct result of willful negligence on the part of University, its agents, employees, representatives or contractors.
14. It is understood and agreed that the University and its agents shall have the right to enter the said property or any part thereof at any time for the purpose of examination or supervision, or for the purpose of making repairs and alterations thereto as may be determined necessary by the University.
15. The Licensee agrees to indemnify, defend, and save harmless the University, it's officers, agents, and employees, from any and all loss, damage, or liability that may be suffered or incurred by the University, it's officers, agents, and employees, caused by, arising out of, or in any way connected with the use by the Licensee of the said property, and any views expressed or published by the Licensee.
16. Licensee shall furnish to the University prior to the commencement of work an underwriter's endorsement with a certificate of insurance stating that there is liability insurance presently in effect in accordance with the following minimum requirements:
• General Liability: comprehensive or commercial form minimum limits each occurrence and $1,000,000, General Aggregate $2,000,000.
• Employer Liability: $1,000,000.
• Business Automobile Liability: minimum limits for Owned, Scheduled, NonOwned, or Hired Automobiles with a combined single limit of not less than $1,000,000 per occurrence.
• Workers' Compensation as required by State law.
The certificate of insurance shall provide:
(a) That the insurer will not cancel the insured's coverage without thirty (30) days prior notice to the University;
(b) That the State of California, the Trustees of the California State University, the University, and the employees, officers, and agents of each of them, are included as additional insureds, but only insofar as the operations under this contract are concerned;
( c) That the State, the Trustees, and the University, and the employees, officers, and agents of each of them will not be responsible for any premiums or assessments on the policy;
(d) Acceptability of Insurers rating AM Best - A VII or equivalent.
Licensee agrees that the bodily injury liability insurance herein provided shall be in effect at all times during the term of this License. In the event said insurance coverage expires at any time or times during the term of this License, Licensee agrees to provide at least thirty (30) days prior to said expiration date, a new certificate of insurance evidencing insurance coverage as provided herein for not less than the remainder of the term of the License, or for a period of not less than one (1) year. New certificates of insurance are subject to the approval of the University, and the Licensee agrees that no work or services shall be performed prior to the giving of such approval. In the event Licensee fails to keep in effect at all times insurance coverage. as herein provided, the University may in addition to any other remedies it may have, terminate this License upon the occurrence of such event.
17. Possessory Interest. The San Diego County Assessor may value the possessory interest created by this license. Under California Revenue and Taxation Code section 107, a property interest tax may be levied on that possessory interest. The Licensee is obligated to pay this property tax, and failure to do so -may be considered a material breach of the license.
18. In the event Licensee or any of its agents, employees, or contractors shall fail to perform any of the conditions set forth herein, University may give Licensee written notice of such default, and Licensee shall then have fifteen (15) calendar days within which to initiate measures to cure such default. This License shall terminate on the sixtieth (60th) calendar day following the service of written notice of default if Licensee fails to cure the default within the time specified in said notice, provided, however, if such default cannot be cured within the sixty (60) day period, University may not terminate this License if Licensee commences to cure within such fifteen (15) day period and diligently proceeds to cure same to completion. The sole remedy in the event of breech by either party shall be termination of this License agreement.
19. No failure or delay on the part of either party in exercising any right or privilege under this License shall operate as a waiver thereof or preclude the further exercise thereof.
20. Any notice provided for in this License shall be given in writing by personal service or deposited in the United States mail registered, postage prepaid, return receipt requested or by reliable overnight courier. The parties' respective addresses, for the purpose of giving notices, are as follows:
To the University:
San Diego State University:
Contract & Procurement Management Reference Agreement # 40067481 5500 Campanile Drive
San Diego, CA 92182-1616
Watchdog Institute Attn: Lorie Hearn 5500 Campanile Dr San Diego CA 92182
Either party may change its address by providing written notice thereof to the other party at anytime.
21. It is understood and agreed that the relationship of the parties hereunder is that of University and Licensee and not of partners or joint ventures. Licensee remains an independent contractor, not an employee of the State, under the terms of this Licensee and as such is not entitled to unemployment or Worker's Compensation Insurance benefits from the State as a result of this Licensee.
22. Licensee shall not assign to any third party all or any part of this License, nor any interest herein, without the prior written consent of University, which consent shall not unreasonably be withheld or delayed.
23. This License shall be construed and enforced in accordance with the laws of the State of California. The parties agree to resort solely to the courts of the State of California for any relief under this License.
24. Both parties shall have the right to terminate this License upon thirty (30) days advance written notice to the other party.
25. Title to any discovery, invention, finding, data, or conclusion, whether or not patentable, developed in Facilities by Licensee will be owned solely by Licensee.
26. University and Licensee each agree that they will not use the name, trademark, or other identifier of the other for any advertising, promotion, or other commercially related purpose except with advance written approval.
27. This License constitutes the entire understanding between the parties respecting the subject matter contained herein and supersedes any and all prior oral or written
Licenses respecting such subject matter. No waiver, modification or addition to this License shall be binding unless expressed in writing and signed by both parties hereto, and that no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
28. If the Premises or Facilities are damaged, destroyed or condemned, Licensee may elect to terminate this License as of the date of the damage, destruction or condemnation by giving notice to University no more than forty-five (45) days following the date of such damage, destruction or condemnation. If Licensee chooses not to terminate this License, the License Fee shall be reduced or abated in proportion to the actual reduction or abatement of use of the Premises.
29. University warrants that: (i) University owns the Property in fee simple and has rights of access thereto; (ii) University has full right to make and perform this License; and (iii) University covenants and agrees with Licensee that upon Licensee paying the License fee and observing and performing all the terms, covenants and conditions on Licensee part to be observed and performed; Licensee may peacefully and quietly enjoy the Premises.
30. Licensee must comply with the policies and standards in the San Diego State University Information Security Plan http://security.sdsu.edulpolicY/secplan.html. Paying particular attention to Section 1 containing campus approved policies, Section 2 reporting information security incidents, Section 22.214.171.124 Authorized Network Devices, and section 3.13 of the as the minimum information security standards that must be implemented to protect the campus systems, data, and networks.
In addition, Licensee shall define the PSF A Associate Dean as the "IT Manager" or "Manager" referenced in the IS Plan and with responsibility to keep Licensee advised of information security issues (i.e. Licensee shall not have access to University's distribution lists to become aware of new standards, threats and protections).
Licensee shall require that the confidentiality agreement be signed by all users with access to the University network, systems, or data.
Licensee shall require all users complete the CSU Security Awareness Orientation prior to gaining access to the SDSU network, systems, or data (both at contract commencement and ongoing new Licensee users).
Although there is no current expectation of sharing or access to SDSU or CSU information, given the close proximity of the server and users, inadvertent access may occur.
Upon separation of any employee, Licensee shall notify the "IT Manager" of their departure so they can be officially removed from the SAO database.
Any requests for future access to University data or systems shall be submitted to the Information Security Officer.
Licensee is responsible for payment of any damages or fines incurred by the campus or auxiliaries as a result of breach of Licensees systems or network use.
The University assumes no liability for any lost andlor damage of Licensees equipment.
31. Licensee agrees not to disclose any information that it may gain access to that was not provided in response to a lawful request for a public record. Should the Licensee contractor gain access to any information that would be considered confidential by law, they must destroy or return such information to the university immediately.
32. (a) If any provision of this License is invalid or unenforceable with respect to any party, the remainder of this License or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this License shall be valid and enforceable to the fullest extent permitted by law.
(b) This License shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties.
IN WITNESS WHEREOF, this indenture has been executed in quadruplicate by the parties hereto as the date hereof
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