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2010 05-18 CC CDC AGENDA PKT
Agenda Of A Regular Meeting - National City City Council / Community Development Commission of the City of National City Council Chambers Civic Center 1243 National City Boulevard National City, California Regular Meeting - Tuesday — May 18, 2010 — 6:00 P.M. Open To The Public Please complete a request to speak form prior to the commencement of the meeting and submit it to the City Clerk. It is the intention of your City Council and Community Development Commission (CDC) to be receptive to your concerns in this community. Your participation in local government will assure a responsible and efficient City of National City. We invite you to bring to the attention of the City Manager/Executive Director any matter that you desire the City Council or Community Development Commission Board to consider. We thank you for your presence and wish you to know that we appreciate your involvement. ROLL CALL Pledge of Allegiance to the Flag by Mayor Ron Morrison Public Oral Communications (Three -Minute Time Limit) NOTE: Pursuant to state law, items requiring Council or Community Development Commission action must be brought back on a subsequent Council or Community Development Commission Agenda unless they are of a demonstrated emergency or urgent nature. Upon request, this agenda can be made available in appropriate alternative formats to persons with a disability in compliance with the Americans with Disabilities Act. Please contact the City Clerk's Office at (619) 336-4228 to request a disability -related modification or accommodation. Notification 24-hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Spanish audio interpretation is provided during Council and Community Development Commission Meetings. Audio headphones are available in the lobby at the beginning of the meetings. Audio interpretaci6n en espatiol se proporciona durante sesiones del Consejo Municipal. Los audiofonos estan disponibles en el pasillo al principio de !a junta. Council Requests That All CeII Phones And Pagers Be Turned Off During City Council Meetings COPES OF THE CITY COUNCILOR COMMUNITY DEVELOPMENT COMMISSION MEETING AGENDAS AND MINUTES MAY BE OBTAINED THROUGH OUR WEBSITE AT www.nationalcitvca.uov CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 - Page 2 PROCLAMATIONS Proclaiming the week of May 16 — 22, 2010 as: "NATIONAL PUBLIC WORKS WEEK" 2. Proclaiming May 21, 2010 as: "BIKE TO WORK DAY" 3. Proclaiming May 22, 2010 as: "NATIONAL MARITIME DAY" CITY COUNCIL CONSENT CALENDAR Consent Calendar: Consent calendar items involve matters, which are of a routine or noncontroversial nature. All consent calendar items are adopted by approval of a single motion by the City Council. Prior to such approval, any item may be removed from the consent portion of the agenda and separately considered, upon request of a Councilmember, a staff member, or a member of the public. 4. Approval of the Minutes of the Special City Council/Community Development Commission Meeting of February 16, 2010, and the Regular Meetings of April 20, 2010 and May 4, 2010. (City Clerk) 5. Approval of a motion to waive reading of the text of the Ordinances considered at this meeting and provides that such Ordinances shall be introduced and/or adopted after a reading of the title only. (City Clerk) 6. Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. (TSC Item No. 2010-4) (Development Services/Engineering) 7. Resolution of the City Council of the City of National City authorizing the City Engineer to approvepinstallation of 12 feet of red curb "no parking" on the south side of E. 15t Street at National City Boulevard to provide better clearance for vehicles turning right from National City Boulevard onto E. 15th Street. (TSC Item No. 2010-5) (Development Services/Engineering) CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 - Page 3 CONSENT CALENDAR (Cont.) 8. Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of Yield sign traffic control at the intersections of E Avenue & E. 15`h Street, and F Avenue & E. 151h Street to enhance traffic safety. (TSC Item No. 2010-6). (Development Services/Engineering) 9. Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of a Stop sign with Stop pavement legend on E. 15 Street at N Avenue to enhance traffic safety. (TSC Item No. 2010-7) (Development Services/Engineering) 10. Resolution of the City Council of the City of National City initiating proceedings for the levy and collection of assessments for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010-2011. (Redevelopment Division) 11. Resolution of the City Council of the City of National City declaring the intention to levy and collect assessments for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010/2011. (Redevelopment Division) 12. Resolution of the City Council of the City of National City approving the Annual Report for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010-2011. (Redevelopment Division) 13. Resolution of the City Council of the City of National City authorizing the Mayor to execute an Agreement with CDWG, Inc. in the amount of $89,344.20 to install and configure network storage infrastructure. (MIS/City Manager) 14. WARRANT REGISTER #42 Warrant Register #42 for the period of 04/14/10 through 04/20/10 in the amount of $1,596,247.17. (Finance) 15. WARRANT REGISTER #43 Warrant Register #43 for the period of 04/21 /10 through 04/27/10 in the amount of $218,762.95. (Finance) CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 - Page 4 PUBLIC HEARING 16. Public Hearing — Proposal to install red Tight cameras at various intersections throughout the City with the following locations under consideration: Plaza Blvd./Euclid Ave.; Highland Ave./30th St.; Paradise Valley Rd./8th St.; Highland Ave./8th St.; and Highland Ave./Plaza Blvd. The public and interested parties have been invited to appear at this meeting to be heard at this public meeting or in written correspondence delivered to the City Clerk or to the City Council at, or prior to the Public Hearing. (Police) **Companion Item #20** ORDINANCES FOR ADOPTION 17. An Ordinance amending the City of National City Municipal Code by adding Chapter 4.70 relating to recovering costs for the deployment of emergency services by the National City Fire Department. (Fire) 18. An Ordinance of the City Council of the City of National City amending Sections 4.52.050 and 4.52.140 of Chapter 4.52, Title 4, of the National City Municipal Code pertaining to Transportation Development Impact Fees. (Development Services/Engineering) NON CONSENT RESOLUTIONS 19. Resolution of the City Council of the City of National City to waive the formal bid process and authorize the Mayor to sign a Service Agreement between the City of National City and Fire Recovery USA, LLC for implementing a Cost Recovery Program. (Fire) 20. Resolution of the City Council of the City of National City authorizing approval of an Agreement for red light photo. enforcement cameras with Redflex Traffic Systems, Inc. for a Red Light Photo Enforcement Program and waiving the formal bid process. (City Manager/Police) **Companion Item #16** 21. Resolution of the City Council of the City of National City implementing changes in wages, hours, and other terms and conditions of employment for employees in the bargaining unit represented by the National City Municipal Employees' Association for the period from January 1, 2010 through December 31, 2010. (Human Resources) CITY COUNCIUCOMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 - Page 5 NON CONSENT RESOLUTIONS (Cont.) 22. Resolution of the City Council of the City of National City approving changes in wages, hours, and other terms and conditions of employment for Confidential employees for the period from January 1, 2010 through December 31, 2011. (Human Resources) NEW BUSINESS 23. Temporary Use Permit — St. Anthony of Padua Festival on June 5-6, 2010 from 11:00 a.m. to 6:30 p.m. daily at 1816 Harding Avenue with no waiver of fees. (Neighborhood Services Division) 24. Temporary Use Permit — Baptism and BBQ sponsored by Cornerstone Church of San Diego at Las Palmas Park on August 23, 2010 from 12 p.m. to 8 p.m. with no waiver of fees. A Facilities Use Permit is required for the use of the Municipal Pool. (Neighborhood Services Division) 25. Temporary Use Permit — National City Parade of Flags sponsored by the Rotary Club of National City flag placement to display American flags along the Mile of • Cars, between 18th Street and W. 33rd Street during set holidays, between May 31st and November 11, 2010. The applicant is requesting a waiver of fees. (Neighborhood Services Division) COMMUNITY DEVELOPMENT COMMISSION CONSENT CALENDAR 26. Authorize the reimbursement of Community Development Commission expenditures in the amount of $104,583.41 to the City of National City for the period of 04/14/10 through 04/20/10. (Finance) 27. Authorize the reimbursement of Community Development Commission expenditures in the amount of $30,189.06 to the City of National City for the period of 04/21/10 through 04/27/10. (Finance) CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 - Page 6 CONSENT CALENDAR (Cont.) 28. Resolution of the Community Development Commission of the City of National City (CDC) appropriating $75,000 and approving an Environmental Oversight Agreement with the California Department of Toxic Substance Control to provide qualified oversight for the environment remediation planning and implementation for the Westside Affordable Transit Oriented Development (TOD) site. (Redevelopment Division) 29. Resolution of the Community Development Commission of the City of National City (CDC) approving the May, 2010 Amendment to an Exclusive Negotiations Agreement (ENA) with Marina Gateway Development Company for the Marina Gateway sites north of Bay Marina Drive identified as APN #s 559-118-002, 117-04, 05, 06, 07, 12 and the adjacent vacant parcel immediately adjacent to the Caltrans right of way for Interstate 5. (Redevelopment Division) 30. Resolution of the Community Development Commission of the City of National City (CDC) approving a 30-year lease at $1 per year with the Unified Port of San Diego for property in Pepper Park on which to construct the National City Aquatic and Education Center. (Redevelopment Division) NEW BUSINESS 31. Old Town Neighborhood Action Plan Update Report to Council. (Community Development) STAFF REPORTS 32. General Plan update — Community Workshop (Executive Director, Community Development) 33. Closed Session Report. (City Attorney) CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 5/18/2010 Page 7 MAYOR AND CITY COUNCIL ADJOURNMENT Adjourned Regular City Council/Community Development Commission Meeting - General Plan Workshop - Tuesday — May 25, 2010 - 6:00 p.m. — Council Chambers - National City, California Regular City Council and Community Development Commission Meeting - Tuesday — June 1, 2010 - 6:00 p.m. - Council Chambers - National City, California ITEM #3 5/18/10 ITEM #4 5/18/10 APPROVAL OF THE MINUTES OF THE SPECIAL CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION MEETING OF FEBRUARY 16, 2010, AND THE REGULAR MEETINGS OF APRIL 20, 2010 AND MAY 4, 2010. (CITY CLERK) ITEM #5 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 To: Honorable Mayor and Council From: Michael R. Dalla, City Clerk Subject: Ordinance Introduction and Adoption 5/18/10 It is recommended that the City Council approve the following motion as part of the Consent Calendar: "That the City Council waive reading of the text of all Ordinances considered at this meeting and provide that such Ordinances shall be introduced and/or adopted after a reading of only the title." ® Recycled Paper CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 6 EM TITLE: Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue (TSC Item No. 2010-4) PREPARED BY: Stephen Manganiello, Traffic Engineer DEPARTMENT: D PHONE: 619-336-4382 ;I,j APPROVE EXPLANATION: See attached. • ervices/Eng. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: X Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: At their meeting on April 14, 2010 the Traffic Safety Committee approved the staff recommendation to install a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. ATTACHMENTS: :xplanation L. Resolution 3. Staff Report to the Traffic Safety Committee (April 14, 2010) Explanation Mr. Alfonso Cendejas, resident of 1923 K Avenue, requested the installation of a blue curb handicap parking space in front of his home. Mr. Cendejas is a disabled senior citizen who uses a cane or walker for assistance. Mr. Cendejas has a valid Disabled Person Placard from the State of California Department of Motor Vehicles. Staff visited the site and observed that there is no "useable" parking available on the property. The driveway and garage are both too short to accommodate a standard vehicle. Currently, there are no blue curb handicap parking spaces provided nearby. The City Council's Disabled Persons Parking Policy requirements for "Special Hardship" cases are as follows: 1. Applicant (or guardian) must be in possession of valid license plates for "disabled persons" or "disabled veterans". This condition is met. 2. The proposed disabled parking space must be in front of the applicant's (or guardian's) place of residence. This condition is met. 3. The residence must not have useable off-street parking available or an off- street space available that maybe converted into disabled parking. This condition is met. Since all three conditions are met for this "Special Hardship" case, staff recommends installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. All work will be completed by the City Public Works Department. TSC 2010-4 RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO APPROVE THE INSTALLATION OF A BLUE CURB HANDICAP PARKING SPACE WITH SIGN IN FRONT OF THE RESIDENCE AT 1923 K AVENUE WHEREAS, Mr. Alfonso Cendejas, a handicapped person and resident at 1923 K Avenue, requested the installation of a blue curb handicap parking space in front to his home due to his physical limitations; and WHEREAS, since all of the "Special Hardship" requirements are met, on April 14, the Traffic Safety Committee approved the installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Engineer to approve the installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney 1 NATIONAL CITY TRAFFIC SAFETY COMMITTEE AGENDA REPORT FOR APRIL 14, 2010 ITEM TITLE: ITEM NO. 2010-4 REQUEST FOR INSTALLATION OF A BLUE CURB HANDICAP PARKING SPACE IN FRONT OF 1923 K AVENUE (BY A. CENDEJAS) PREPARED BY: Stephen Manganiello, Engineering Department DISCUSSION: Mr. Alfonso Cendejas, resident of 1923 K Avenue, has requested the installation of a blue curb handicap parking space in front of his home_ Mr. Cendejas is a disabled senior citizen who uses a cane or walker for assistance. Mr. Cendejas has a valid Disabled Person Placard from the State of California Department of Motor Vehicles. Staff visited the site and observed that there is no "useable" parking available on the property. The driveway and garage are both too short to accommodate a standard vehicle. Currently, there are no blue curb handicap parking spaces provided nearby. The City Council has adopted a policy, which is used to evaluate requests for handicap parking spaces. The City Council Policy requirements for "Special Hardship" cases are as follows: Applicant (or guardian) must be in possession of valid license plates for "disabled persons" or "disabled veterans". This condition is met. The proposed disabled parking space must be in front of the applicant's (or guardian's) place of residence. This condition is met. The residence must not have useable off-street parking available or an off-street space available that maybe converted into disabled parking. This condition is met_ STAFF RECOMMENDATION: Since all three conditions of the City Council's Disabled Persons Parking Policy are met for this "Special Hardship" case, staff recommends installation of a blue curb handicap parking space with sign in front of the residence at 1923 K Avenue. EXHIBITS: 1_ Correspondence 2. Location Map 3. Photo 4. Disabled Persons Parking Policy 2010-4 1. Alfonso Cendejas 1923 K Avenue National City, CA 91950 619-477-4531 st i V:_li ENGINEERING DEPT. Mr. Stephen Manganiello Traffic Engineer 1243 National City Boulevard National City, CA 91950 Mr. Manganiello: 2DIO APR -8 P 2. 28- I am a disabled senior citizen who uses a cane or walker to move around. Despite my disability, most of the time I drive my own car, as many other disabled citizens do. So, as you may imagine, I was pleased to hear that the city of National City has the ability to designate a marked handicapped parking space in front of my residence. My home was built in the 1900's and doesn't have a proper size garage to park a vehicle. The drive way is also too small for my size vehicle to park without blocking the side walk. If I had a designated parking space in front of my home I could drive anywhere I need to and have a fair chance of being able to park in front of my home. There are several apartment complexes in front and on the side of my house. This makes it virtually impossible for me to find a descent parking space on a daily basis. I urge you to please consider my situation and grant me a marked designated handicapped parking space in front of my home. If there is any way I might be of assistance, please don't hesitate to call on me. Thank you for your support and consideration. Sincerely, Alfonso Cendejas THIS VALIDATED REGISTRATION CARD OR A FACSIMILE COPY IS TO BE KEPT WITH THE VEHICLE FOR WHICH IT IS ISSUED_ THIS REQUIREMENT DOES NOT APPLY WHEN THE VEHICLE IS LEFT UNATTENDED_ IT NEED NOT BE DISPLAYED_ PRESENT IT TO ANY PEACE OFFICER UPON DEMAND. IF YOU DO NOT RECEIVE A RENEWAL. NOTICE, USE THIS FORM TO PAY YOUR RENEWAL FEES OR NOTIFY THE DEPARTMENT OF MOTOR VEHICLES OF THE PLANNED NON -OPERATIONAL STATUS (PNO) OF A STORED VEHICLE_ RENEWAL FEES MUST BE PAID ON OR BEFORE THE REGISTRATION EXPIRATION DATE OR PENALTIES WILL BE DUE PURSUANT TO CALIFORNIA VEHICLE CODE SECTIONS 9552 - 9554. EVIDENCE OF LIABILITY INSURANCE FROM YOUR INSURANCE COMPANY MUST BE PROVIDED TO THE DEPARTMENT WITH THE PAYMENT OF RENEWAL FEES_ EVIDENCE OF LIABILITY INSURANCE IS NOT REQUIRED WITH REGISTRATION RENEWAL OF OFF -HIGHWAY VEHICLES, TRAILERS, VESSELS, OR IF YOU FILE A PNO ON THE VEHICLE. WHEN WRITING TO DMV, ALWAYS GIVE YOUR FULL NAME, PRESENT ADDRESS, AND THE VEHICLE MAKE, LICENSE, AND IDENTIFICATION NUMBERS. ************ DO NOT DETACH - REGISTERED OWNER INFORMATION ************** i MAKE YR MODEL CHBV 2006 BODY TYPE MODEL UT TYPE VEHICLE USE AUTOMOBILE i i i i i i i i i i i i i i i A REGISTRATION CARD VALID FROM: 07/08/2009 YR 1ST SOLD VLF CLASS TYPE VEH 2006 HV 120 MP MO G QV DATE ISSUED 08/04/09 REGISTERED OWNER ULLOA MARTHA C/ CENDEJAS ALFONSO 1923 K AVE NATIONAL CITY CA 91950 (HOLDER MAC PO BX 8127 CC/ALCO 37 DT FEE RECVD PIC 06/30/09 8 AMOUNT DUE $ NONE N i i i i tl i i i i i 11 TO: 07/08/2010 TYPE LIC LICENSE NUMBER 11 5VDR051 VEHICLE ID NUMBER 1GNES16S166120174 STICKER ISSUED V8221424 PR EXP DATE: 07/08/2010 AMOUNT PAID $NFEE AMOUNT RECVD CASH _ CHCK : CRDT . COCKEYSVILLE MD 21030 3 ***CUSTOMER RECEIPT COPY*** EXPIRES: 06/30/2011 *** D I S A B L E D PERSON PLACARD*** DATE ISSUED: 05/04/09 PLACARD NUMBER: 071102A PIC: I TV: 91 MO/YR: QS CENDEJAS ALFONSO DT FEES RECVD: 05/04/09 1923 K AVE AMT DUE : NONE AMT RECVD - CASH : NATIONAL CITY - CHCK CA 91950 - CRDT CO: 37 E10 C90 5B 0000000 0011 CS E10 050409 Ni 071102A 4 DEPARTMENT OF MOTOR VEHICLES PLACARD IDENTIFICATION CARD THIS IDENTIFICATION CARD OR FACSIMILE COPY IS TO BE CARRIED BY THE PLACARD OWNER. PRESENT IT TO ANY PEACE OFFICER UPON DEMAND. IMMEDIATELY NOTIFY DMV BY PHONE ;OR MAIL OF ANY CHANGE OF ADDRESS. WHEN PARKING, HANG THE PLACARD FROM THE REAR VIEW MIRROR. REMOVE IT WHEN DRIVING. iCARD## : EXPIRES: DOB: ISSUED: TYPE: 071102A 06/30/2011 01/26/1939 05/04/09 Ni PLACARD HOLDER: CENDEJAS ALFONSO 1923 K AVE NATIONAL CITY CA 91950 PURCHASE OF FUEL (BUSINESS & PROFESSIONS CODE 13660): STATE LAW REQUIRES SERVICE STATIONS TO REFUEL A DISABLED PERSON'S VEHICLE AT SELF-SERVICE RATES, EXCEPT SELF-SERVICE FACILITIES WITH ONLY ONE CASHIER. WHEN YOUR PLACARD IS PROPERLY DISPLAYED, YOU MAY PARK IN/ON: *DISABLED PERSON PARKING SPACES (BLUE ZONES) *METERED ZONES WITHOUT PAYING *GREEN ZONES WITHOUT RESTRICTIONS TO TIME LIMITS *STREETS WHERE PREFERENTIAL PARKING PRIVILEGES ARE GIVEN TO RESIDENTS AND MERCHANTS_ YOU MAY NOT PARK IN/ON: *RED ZONES *TOW AWAY ZONES *WHITE OR YELLOW ZONES *SPACES MARKED BY CROSSHATCH LINES NEXT TO DISABLED PERSON PARKING SPACES. IT IS CONSIDERED MISUSE: *TO DISPLAY A PLACARD UNLESS THE DISABLED OWNER IS•BEING TRANSPORTED *TO DISPLAY A PLACARD WHICH HAS BEEN CANCELLED OR REVOKED *TO LOAN YOUR PLACARD TO ANYONE, INCLUDING FAMILY MEMBERS. MISUSE IS A MISDEMEANOR (SECTION 4461VC) AND CAN RESULT IN CANCELLATION OR REVOCATION OF THE PLACARD, LOSS OF PARKING PRIVILEGES, AND/OR FINES. 5 Location Map 1923 K Avenue (looking east) 7 DISABLED PERSONS PARKING POLICY The purpose of a disabled persons parking zone is to provide designated parking spaces at major points of assembly for the exclusive use of physically disabled persons whose vehicle displays a distinguishing license plate as authorized by the California Department of Motor Vehicles_ The City Council may upon recommendation of the City Engineer, designate specially marked and posted on -street parking spaces for disabled persons pursuant to California Vehicle Code 21101, et seq. at the following facilities: 1. Government buildings serving the public such as administration buildings, public employment offices, public libraries, police stations, etc. 2. Hospitals and convalescent homes with more than 75-bed capacity. 3. Medical facilities and doctors' offices staffed by a maximum of five practitioners. Zones shall be located to serve a maximum number of facilities on one block_ 4 Community service facilities such as senior citizens service centers, etc. 5. Accredited vocational training and educational facilities where no off- street parking is provided for disabled persons. Employment offices for major enterprises persons. 7. Public recreational facilities recreation halls, museums, etc. Public theaters, auditoriums, than 300 seating capacity. employing more than 200 including municipal swimming pools, meeting halls, arenas, stadiums with more 9 Other places of assembly such as schools and churches. 10. Commercial and/or office building(s) with an aggregate of more than 50,000 square feet of usable floor space. Zone shall be located to serve a maximum number of facilities on one block. 11. Hotels catering to daily guests, maintaining a ground floor lobby and a switchboard that is operated 24 hours per day. 8 12. A hotel or apartment house catering to weekly or monthly guests and containing more than 30 separate living units. In addition, disabled persons parking spaces may be provided within all publicly owned, leased or controlled off-street parking facilities as specified in the General Requirements_ General Requirements Each disabled persons parking space shall be indicated by blue paint and a sign (white on blue) showing the international symbol of accessibility (a profile view of a wheelchair with occupant). Where installed under the above criteria the total number of disabled persons curb parking spaces will be limited to 3% of the total number of on -street parking spaces available in the area and shall be distributed uniformly within the area. Disabled persons parking will not be installed at locations with a full-time parking prohibition. When a disabled persons parking zone is installed where a part-time parking prohibition is in effect, the disabled persons parking zone will have the same time restrictions as the part-time parking prohibition. The cost of installing disabled persons parking will be assumed by the City on public streets and public off-street parking facilities. In establishing on -street parking facilities for the disabled there shall be a reasonable determination made that the need is of an on -going nature. The intent is to prevent the proliferation of special parking stalls that may be installed for a short-term purpose but later are seldom used. Unjustified installation of such parking stalls unnecessarily increases the City's maintenance and operations costs, reduce available en - street parking for the general public, and detract from the overall effectiveness of the disabled persons parking program. Special Hardship Cases It is not the intention of the City to provide personal reserved parking on the public right-jof-way, especially in residential areas. However, exceptions may be made, in special hardship cases, provided all of the following conditions exists: CO Applicant (or guardian) must be in possession of valid license plates for "disabled persons" or "disabled veterans." (2) The proposed disabled parking space must be in front of the applicant's (or guardian's) place of residence. 9 (3) Subject residence must not have useable off-street parking available or off-street space available that may be converted into disabled parking_ NOTE:It must be emphasized that such parking spaces do not constitute "personal reserved parking" and that any person with valid "disabled persons" license plates may park in the above stalls. Jha:p 10 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 7 EM TITLE: Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of 12 feet of red curb "no parking" on the south side of E. 15th Street at National City Boulevard to provide better clearance for vehicles turning right from National City Boulevard onto E. 15th Street (TSC Item No. 2010-5) PREPARED BY: Stephen Manganiello, Traffic Engineer/POI DEPARTMENT:Deve PHONE: 619-336-4382 /rI PPROVED B EXPLANATION: / See attached. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: X Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: At their meeting on April 14, 2010 the Traffic Safety Committee approved the staff recommendation to install 12 feet of red curb "no parking" on the south side of E. 15th Street at National City Boulevard. ATTACHMENTS: xplanation L. resolution 3. Staff Report to the Traffic Safety Committee (April 14, 2010) Explanation Mr. Kilean Roever, resident of National City, requested the installation of red curb "no parking" on south side of E. 15th Street at National City Boulevard to provide better clearance for vehicles turning right onto E. 15th Street. Mr. Roever stated that vehicles parked at the corner partially block the intersection, making it difficult to turn right onto E. 15th Street from National City Boulevard. He is concemed about traffic safety. Staff visited the site and measured 32 feet of available parking on the south side of E. 15th Street between the intersection curb return and the auto shop driveway. This distance does not allow for two standard vehicles to park without partially blocking the intersection and/or driveway. There have been no "reported" accidents at this location in recent years. Staff recommends installation of 12 feet of red curb "no parking" to provide clearance at the intersection, while still providing parking for one standard vehicle. All work will be completed by the City Public Works Department. TSC 2010-5 RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO APPROVE THE INSTALLATION OF 12 FEET OF RED CURB "NO PARKING" ON THE SOUTH SIDE OF EAST 15TH STREET AT NATIONAL CITY BOULEVARD TO PROVIDE BETTER CLEARANCE FOR VEHICLES TURNING RIGHT FROM NATIONAL CITY BOULEVARD ONTO EAST 15TH STREET WHEREAS, Mr. Kilean Roever, a resident of National City, requested the installation of red curb "no parking" on the south side of East 15th Street at National City Boulevard to provide better clearance for vehicles turning right onto East 15th Street because vehicles parked at the corner partially block the intersection, making it difficult to turn right onto East 15th Street from National City Boulevard; and WHEREAS, after inspecting the site, staff recommends installation of 12 feet of red curb "no parking" to provide clearance at the intersection, while providing parking for one standard vehicle; and WHEREAS, at its meeting on April 14, 2010, the Traffic Safety Committee approved staffs recommendations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Engineer to approve the installation of 12 feet of red curb "no parking" on the south side of East 15th Street at National City Boulevard to provide clearance at the intersection, while providing parking for one standard vehicle. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney 2 NATIONAL CITY TRAFFIC SAFETY COMMITTEE AGENDA REPORT FOR APRIL 14, 2010 ITEM NO. 2010-5 ITEM TITLE: REQUEST FOR INSTALLATION OF RED CURB "NO PARKING" AT THE SOUTHEAST CORNER OF THE INTERSECTION OF NATIONAL CITY BOULEVBARD AND E. 15TH STREET (BY K. ROEVER) PREPARED BY: Stephen Manganiello, Engineering Department DISCUSSION: Mr. Kilean Roever, resident of National City, has requested the installation of red curb "no parking" on the southeast corner of the intersection of National City Boulevard and E_ 15th Street to provide better clearance for vehicles turning right onto E. 15th Street. Mr. Roever states that vehicles parked at the corner partially block the intersection, making it difficult to turn right onto E. 15th Street from National City Boulevard. He is concerned about traffic safety. Staff visited the site and measured 32 feet of available parking on the south side of E. 15th Street between the intersection curb return and the auto shop driveway. This distance does not allow for two standard vehicles to park without partially blocking the intersection and/or driveway. There have been no "reported" accidents at this location in recent years. STAFF RECOMMENDATION: Staff recommends installation of 12 feet of red curb "no parking" on the south side of E. 15th Street at National City Boulevard to provide better clearance for vehicles turning right from National City Boulevard onto E. 15th Street. EXHIBITS: 1. Location Map 2. Photo 2010-5 1 Location Map Intersection of National City Blvd. & E. 15th St. (looking northeast) 3 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 8 EM TITLE: Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of Yield sign traffic control at the intersections of E Avenue & E. 15th Street and F Avenue & E. 15th Street to enhance traffic safety (TSC Item No. 2010-6) PREPARED BY: Stephen Manganiello, Traffic Engineer/01 PHONE: 619-336-4382 EXPLANATION: See attached. DEPARTMENT:Dev APPROVED Service/Eng. ♦ FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: At their meeting on April 14, 2010 the Traffic Safety Committee approved the staff recommendation to install Yield sign traffic control at the intersections of E Avenue & E. 15th Street and F Avenue & E. 15th Street. ATTACHMENTS: Explanation z. resolution 3. Staff Report to the Traffic Safety Committee (April 14, 2010) Explanation While driving to a site inspection on E. 16th Street, staff observed that currently no traffic control is provided at the intersections of E Avenue & E. 15th Street and F Avenue & E. 15th Street. Staff visited the sites and determined that warrants for Two -Way Stop Control and All -Way Stop Control are not met due to low traffic volumes. Staff observed that Yield signs are provided for similar low -volume intersections throughout the City. Staff reviewed the traffic collision history at both locations and found no "reported" accidents in recent years. Yield sign recommendations are for the observed, lower -volume approaches. Staff recommends the following traffic safety enhancements: 1) Install Yield signs with Yield pavement legends on E Avenue at E. 15th Street. 2) Install Yield signs with Yield pavement legends on E. 15th Street at F Avenue. All work will be completed by the City Public Works Department. TSC 2010-6 RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO APPROVE THE INSTALLATION OF A YIELD SIGN TRAFFIC CONTROL AT THE INTERSECTIONS OF E AVENUE AND EAST 15TH STREET, AND F AVENUE AND EAST 15TH STREET TO ENHANCE TRAFFIC SAFETY WHEREAS, City staff has observed that currently no traffic controls are provided at the intersection of E Avenue and East 15th Street, and F Avenue and East 15th Street; and WHEREAS, staff recommends installation of Yield signs with Yield pavement legends at both locations; and WHEREAS, at its meeting on April 14, 2010, the Traffic Safety Committee approved staffs recommendations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Engineer to approve the installation of Yield signs with Yield pavement legends at the intersections of E Avenue and East 15th Street, and F Avenue and East 15th Street. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney NATIONAL CITY TRAFFIC SAFETY COMMITTEE AGENDA REPORT FOR APRIL 14, 2010 ITEM TITLE: ITEM NO. 2010-6 REQUEST FOR INSTALLATION OF YIELD SIGNS AT THE INTERSECTIONS OF E AVENUE & E. 15T" STREET AND F AVENUE & E. 15T" STREET (BY CITY ENGINEERING) PREPARED BY: Stephen Manganiello, Engineering Department DISCUSSION: Currently no traffic control is provided at the intersections of E Avenue & E. 15" Street and F Avenue & E. 15th Street. Staff visited the sites and determined that warrants for Two -Way Stop Control and All - Way Stop Control are not met due to low traffic volumes. Staff observed that Yield signs are provided for similar low -volume intersections throughout the City. Staff reviewed the traffic collision history at both locations and found no "reported" accidents in recent years. Yield sign recommendations are for the observed, lower -volume approaches. STAFF RECOMMENDATION: Staff recommends the following traffic safety enhancements: 1) install Yield signs with Yield pavement legends on E Avenue at E. 15' Street. 2) Install Yield signs with Yield pavement legends on E. 15`t' Street at F Avenue. EXHIBITS: 1. Location Map 2. Photos 2010-6 1 Location Map Intersection of F Avenue & E. 15`h Street (looking south) Intersection of F Avenue & E. 15`h Street (looking east) 3 Intersection of E Avenue & E. 15' Street (looking north) 4 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 9 "EM TITLE: Resolution of the City Council of the City of National City authorizing the City Engineer to approve installation of a Stop sign with Stop pavement legend on E. 15th Street at N Avenue to enhance traffic safety (TSC Item No. 2010-7) PREPARED BY: Stephen Manganiello, Traffic Engineer/7M DEPARTMENT:Deve PHONE: 619-336-4382 % 1i,, APPROVED BY: EXPLANATION: See attached. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: X Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: At their meeting on April 14, 2010 the Traffic Safety Committee approved the staff recommendation to install a Stop sign with Stop pavement legend on E. 15th Street at N Avenue to enhance traffic safety. ATTACHMENTS: Explanation z. Resolution 3. Staff Report to the Traffic Safety Committee (April 14, 2010) Explanation After attending a meeting at the National School District staff observed that currently no traffic control is provided at the intersection of N Avenue & E. 15th Street. E. 15th Street ends at N Avenue, forming a "T" intersection. The National School District facilities are located on the west side of N Avenue between E. 14th Street and E. 16th Street. Therefore, students and parents often walk through this intersection to attend events. At the April 14, 2010 meeting of the Traffic Safety Committee, staff initially proposed Yield sign traffic control since Stop control was not warranted based on low traffic volumes. Upon further discussion at the meeting staff determined that Stop control would be warranted for the following reasons: 1) The approach in question is part of a "T" intersection, rather than a typical 4- leg intersection. Stop control is commonly used throughout the City and region at "T" intersections, rather than Yield control. 2) Stop control would provide consistency with the east end of E. 15th Street at Palm Avenue, another Stop -controlled "T" intersection. . Staff's final recommendation is to install a Stop sign with Stop pavement legend on E. 15th Street at N Avenue to enhance traffic safety. All work will be completed by the City Public Works Department. TSC 2010-7 RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO APPROVE THE INSTALLATION OF A STOP SIGN WITH STOP PAVEMENT LEGEND ON EAST 15TH STREET AND N AVENUE TO ENHANCE TRAFFIC SAFETY WHEREAS, City staff has observed that currently no traffic control is provided at the intersection of N Avenue and East 15th Street; and WHEREAS, the National School District facilities are located on the west side of N Avenue between East 14th Street and East 16th Street, therefore, students and parents often walk through this intersection at attend events; and WHEREAS, staff recommends installation of a Stop sign with Stop pavement legends on East 15th Street and N Avenue to enhance traffic safety; and WHEREAS, at its meeting on April 14, 2010, the Traffic Safety Committee approved staff's recommendations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Engineer to approve the installation of a Stop sign with Stop pavement legends on East 15th Street and N Avenue to enhance traffic safety. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney NATIONAL CITY TRAFFIC SAFETY COMMITTEE AGENDA REPORT FOR APRIL 14, 2010 ITEM NO. 2010-7 ITEM TITLE: REQUEST FOR INSTALLATION OF YIELD SIGN TRAFFIC CONTROL ON E. 15TH STREET AT N AVENUE (BY CITY ENGINEERING) PREPARED BY: Stephen Manganiello, Engineering Department DISCUSSION: Currently no traffic control is provided at the intersection of N Avenue & E. 15th Street. E. 15th Street ends at N Avenue, forming a "T" intersection. The National School District facilities are located on the west side of N Avenue between E. 14th Street and E. 16th Street. Therefore, students and parents often walk through this intersection to attend events. Staff visited the site and determined that warrants for Two -Way Stop Control and All - Way Stop Control are not met due to low traffic volumes. Staff observed that Yield signs are provided for similar low -volume intersections throughout the City. Staff reviewed the traffic collision history and found no "reported" accidents in recent years. STAFF RECOMMENDATION: Staff recommends installing a Yield sign with Yield pavement legend on E. 15th Street at N Avenue to enhance traffic safety. EXHIBITS: 1. Location Map 2. Photo 2010-7 1 Location Map Intersection of N Avenue & E. 15`h Street (looking west) 3 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. t0 EM TITLE: (Resolution initiating proceedings for the levy and collection of assessments for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010/11). PREPARED BY: Patricia Beard ct- DEPARTMENT:,Division PHONE: 14255 APPROVED BY:' �'�u'� EXPLANATION: Each year the City Council considers a variety of resolutions to allow the Mile of Cars Landscape Maintenance District to keep operating. The District is operated through a special property tax on properties within the Mile of Cars and is used to maintain the special themed landscape and hardscape for the Auto Mall. The accompanying resolution initiates proceedings for the District for Fiscal Year 2010/11. The Mile of Cars Association has approved the scope of work, amount of levies and the District budget prior to any consideration by the City Council. There are no changes or additions to the maintained improvements for the coming year. NBS, the City's consultant, is paid out of the District's assessment funds. 13.)(at.rovY) FINANCIAL STATEMENT: ACCOUNT NO. Not applicable.1 ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: 1 Finance MIS STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY INITIATING PROCEEDINGS FOR THE LEVY AND COLLECTION OF ASSESSMENTS FOR THE LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) FOR FISCAL YEAR 2010/11 WHEREAS, the City Council previously completed their proceedings in accordance with and pursuant to the Landscape and Lighting Act of 1972, Part 2, Division 15 of the California Streets and Highways Code (commencing with Section 22500) (the "Act") to establish the City's Landscape Maintenance District No. 1 (Mile of Cars) (the "Assessment District"); and WHEREAS, NBS Local Government Solutions ("NBS") has been retained for the purpose of assisting with the annual levy of the Assessment District, and to prepare and file an Annual Report. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows: 1. Annual Report: NBS has prepared and filed with the City Clerk the Annual Report concerning the levy and collection of assessments within the Assessment District for the fiscal year commencing July 1, 2010 and ending June 30, 2011. 2. New Improvements or Changes to Existing Improvements: There are no changes to existing improvements nor are there any items being added to the list of improvements previously approved at the formation of the Assessment District. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 111 .. °M TITLE: (Resolution declaring the intention to levy and collect assessments for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010/11).. PREPARED BY: Patricia Beard�� Z' PHONE: 14251 EXPLANATION: DEPARTMENT: Redevelopment Division APPROVED BY: Each year the City Council considers a variety of resolutions to allow the Mile of Cars Landscape Maintenance District to keep operating. The District is operated through a special property tax on properties within the Mile of Cars and is used to maintain the special themed landscape and hardscape for the Auto Mall. The accompanying resolution declares the intention to levy and collect assessments for the District for Fiscal Year 2010/11. The Mile of Cars Association has approved the scope of work, amount of levies and the District budget prior to any consideration by the City Council. There are no changes or additions to the maintained improvements for the coming year. NBS, the City's consultant, is paid out of the District's assessment funds. FINANCIAL STATEMENT: ACCOUNT NO. (Not applicable.. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: "''TACHMENTS: RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY DECLARING ITS INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR THE LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) FOR FISCAL YEAR 2010/11 WHEREAS, the City Council previously completed their proceedings in accordance with and pursuant to the Landscape and Lighting Act of 1972, Part 2, Division 15 of the California Streets and Highways Code (commencing with Section 22500) (the "Act") to establish the City's Landscape Maintenance District No. 1 (Mile of Cars) (the "Assessment District"); and WHEREAS, NBS Local Business Solutions ("NBS") has been retained for the purpose of assisting with the annual levy of the Assessment District, and to prepare and file an Annual Report. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows; 1. Intention: The City Council hereby declares its intention to levy and collect assessments within the Assessment District to pay the costs of the Improvements for the fiscal year commencing July 1, 2010 and ending June 30, 2011. The Council finds that the public's best interest requires such action. 2. Improvements: The Improvements include, but are not limited to, landscape planting and irrigation, colored hardscape, lighting systems, graphic panels, banners and signage, painted crosswalks, and street furniture. Services provided include all necessary service, operations, administration, and maintenance required to keep the improvements in a healthy, vigorous, and satisfactory condition. 3. Assessment District Boundaries: The boundaries of the Assessment District are as shown by the assessment diagram filed in the offices of the City Clerk, which map is made a part hereof by reference. 4. Annual Report: Reference is made to the Annual Report prepared by NBS, on file with the Clerk, for a full and detailed description of the improvements, the boundaries of the Assessment District, and the proposed assessments upon assessable lots and parcels of land within the Assessment District. 5. Notice of Public Hearing: The City Council hereby declares its intention to conduct a Public Hearing concerning the levy of assessments in accordance with Section 22629 of the Act. All objections to the assessment, if any, will be considered by the Council. The Public Hearing will be held on Tuesday, June 22, 2010, at 6:00 pm or as soon thereafter as is feasible in the Council Chambers located at 1243 National City Boulevard, National City, CA 91950. The Council further orders the City Clerk to publish notice of this Resolution in accordance with Section 22626 of the Act. Resolution No. 2010 — Page 2 6. Increase of Assessment: The maximum assessment is not proposed to increase from the previous year's assessment approved by the property owners, as "increased assessment" is defined in Section 54954.6 of the Government Code. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 112 'EM TITLE: (Resolution approving the Annual Report for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2010/11).1 PREPARED BY: (Patricia Beard PHONE: 42551 EXPLANATION: DEPARTMENT: Redevelopment Division APPROVED BY: Each year the City Council considers a variety of resolutions to allow the Mile of Cars Landscape Maintenance District to keep operating. The District is operated through a special property tax on properties within the Mile of Cars and is used to maintain the special themed landscape and hardscape for the Auto Mall. The accompanying resolution approves the Annual Report ("Engineer's Report") for the District for Fiscal Year 2010/11. The Mile of Cars Association has approved the scope of work, amount of levies and the District budget prior to any consideration by the City Council. There are no changes or additions to the maintained improvements for the coming year. NBS, the City's consultant, is paid out of the District's assessment funds. FINANCIAL STATEMENT: ACCOUNT NO. 'Not applicable.:; ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 2010/11 Fourteenth Amended Engineer's Report RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING THE ANNUAL REPORT FOR THE LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) FOR FISCAL YEAR 2010/11 WHEREAS, the City Council previously completed their proceedings in accordance with and pursuant to the Landscape and Lighting Act of 1972, Part 2, Division 15 of the California Streets and Highways Code (commencing with Section 22500) (the "Act") to establish the City's Landscape Maintenance District No. 1 (Mile of Cars) (the "Assessment District"); and WHEREAS, NBS Local Government Solutions ("NBS") has been retained for the purpose of assisting with the annual levy of the Assessment District, and to prepare and file an Annual Report; and WHEREAS, the Council has, by previous resolution, ordered NBS to prepare and file such Annual Report; and WHEREAS, NBS has prepared and filed with the City Clerk such Annual Report, which is incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby approves the Annual Report concerning the levy of assessments as submitted by NBS for the fiscal year commencing July 1, 2010 and ending June 30, 2011. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney City of National City Landscape Maintenance District No.1 (Mile of Cars) 2010/11 Fourteenth Amended Engineer's Report May 2010 tubmitteetby Corporate Office 32605 Temecula Parkway, Suite 100 Temecula, CA-92592 (800) 676-7516 phone (951) 296-1998 fax Regional Office 870 Market Street, Suite 1223 San Francisco, CA 94102 (800) 04-8349Phone (415) 391-8439 fax CITY OF NAIR:NAL CITY LANDSCAPE MAINTENANCE DISTRICT NO, 1 (MILE OF CARS) 1243 National City Blvd National ity, CA 91950 Phone - (81O) 3364241 •Fax (6191336-4239 MAYOFUCITY COUNCIL Ron Morrison, Mayor Alejandra Sotelo-Solis, Vice Mayor Francisco Parra, Council Member Rosalie G. Zerate, COUttil Member Jess VanDeventer, Council Meinber` AGENCY STAFF Patricia Beard, RedeVelopment Manager DISTRICT Weldon Diorierdaon, Executive Director NBS Pablo Perez, Project Direttor Dennis klinRelhofer, Assessment Engineer Brian Brown, Financial Analyst TABLE OF CONTENTS • "1. ENGINEEIVS LETTER 2. OVERVIEW 2-1 2.1 Introduction. ....................................... ...... ... .... .................... 2-1 2.2 Description of the District Boundaries 2-1 2.3 Description of Improvements 2-1 2A Description of Maintenance__ ..... .... .................... .............. ... 2-2 3. ESTIMATE OF COSTS .......... 31 4. ASSESSMENT DIAGRAM 4-1 5. ASSESS M E NTS ....................... .... ....................... 5.1 5.1 Method of Apportionment ....... ..... .. . ..... 5-1 5.2 Annual Escalation Factor ................ 5-2 5.3 Assessment Roll 1. ENGINEER'S LETTER WHEREAS, the City Council of the City :of National City (the "City"), State of California, directed NBS Government Finance Group, DBA NBS (NBS) to prepare and file a report presenting plane and specificationadescribing the general :nature, location and extentof the improvements to be maintained, an estimate of the costs of the maintenance, operations and servicing of the improvements for the City's Landscape Maintenance District No. 1 (11,1Wef Cars) the istricf) for Fiscal Year !010/11. The report inoludes,a diagram for the District, showing the areaend properties proposed to be assessed, an assessment of the estimated costs of -the maintenance,mperatiorts, and servicing the improvements, and the net amount upon all assessable lots andier parcels within the District in proportion to the special benefit received and WHEREAS, the assessment for each parcel is in compliance with the assessment balloting procedures set forth in Section 4 of Article XIII D of the Catifernia Constitution because the Distnot was formed by thfVconsent of the land owners, and the proposed assessment s not proposed to increase by more than the 10% annual increase over the Fiscal Year 400/10 asseesinent NOW THEREFORE, onlyispecial benefits .ereassessed and 'anygeneral benefits have been separated:tom the special OenefitS'fOr OurpOSOS:Of this report. The follOWIng assessment is made to cover the portion of the estimated costs of maintenance, operation" and servicing of said improvements to be paid by the assessable real property within the District in 'proportion to the,special benefit received: SUMMARV01 ASSESSMENT District _.1 . t Landscape Maintenance District No. 1 (Mile of Cars) IFIspal'Yeari201011_ActuAtAssessment ::$149,034,12 1, the undersigned, respectfully submit the eriblesed Erigineees Reportand, to -the best of my knowledge, information and belief, the Engineer's Report, Meessmeriti, arid the Assessment Diagram herein have been :prepared and computed in accordancewith the' order of the City Council of the City. City of National City— Landscape Maintenance District No. 1 Wile, of Cars) Prepared by NBS — Fiscal Year 2010/11 1-1 2. OVERVIEW ZI Introduction The. City has: previously formed this maintenance .assessment district for the purpose of providing maintenance :services to benefit certain parcels in the City. Over the past decade, this District has been levyingand collecting spebial asseSsments. The District was formed in 1995 and the levies are made pursuant to the provisions of the Landscaping and Lighting Act of 1972, Part 2 ofDivision 15 of the California Streets and Highway Code ((he "Act). The 2010/11 Fourteenth Amended Engineer's Report (the "Report') describes the District, the annual assessment per parcel for Fiscal Year 2010/11, based on the historical and estimated costs to maintain the improvements and provide the services that benefit parcels within the District. The, word l'parcel, '' for the purposes of this Report, refers to an individual property assigned its own Assessor's Parcel Number by the San Diego County Assessor's Office. The. San Diego County Auditor -Controller uses Assessor's Parcel Numbers and SpecificFund Numbers to identify on the lax roil, properties assessed for special district benefit assessments. Following consideration Of public comments at ,a noticed public hearing and following review of the Report, the City Council may confirm the Report as submitted, and may order the levy and collection of: assessments for Fiscal .Year 2010/11. If approved, the asSessmerit information shall be submitted to the County Auditor -Controller, and included on the property tax roll for each benefiting parcel for Fiscal Year 2010/11. 2.2 Description of the District Bow-K./Aries The Distncts improvements are generally along National City Boulevard and bounded by 1th8 Street to the north and 33 Street and Highway 54 to the south. 2.3 Description of improvements A general description of the works of improvement to be maintained under these proceedings is described as follows but shall not be limited to: 1. Median Improvements • Landscape planting and irrigation • Colored concretehardSdePe • Lighting • Graphic panels, banners and signage • Painted crosswalks • Identification sign at 23'd Street and McKinley Avenue Frontage Improvements • Improvements to parkways on both sides of National City Boulevard between 18th Street and 33rd Street • Landscape planting and irrigation • Colored concrete sidewalks and mow curbs • Street furniture City of National City — Landscape Maintenance„District No. 1 (Mile of Cars) Prepared by NBS — Fiscal Year 2010/11 2-1 14 Description of Maintenance The maintenance .of: the improvements shall include the'fUrnithirig of services and materials; fbr the ordinary and usual maintenance and servicing of the improvementSi including but shall not be limited t(700Z.: General Plant Maintenance • Mowing, trimming, pruning and weeding • Watering, including Water usage • Fertilizing • Plant replacement • Periodic skinning of palm trees 2. Maintenance of Irrigation System • Adjustmentof timers: • Repair/replacement of worn-out, Stolen or malfunctioning .equipment S. Periodic restriping of decorative crosswalks 4. Periodic repainting of metal benches and trash receptacles 5. Periodic repainting and repair of light poles, graphic panels, signage and other miscellaneous equipment 6. Maintenance of electrical system • Bulb replacement • Repair/replacement of worrl out or malfunctioning equipment • Electrical energy charges 7. Litter removal 8. Trash pick-up 9. Other repairs of damage caused by vandalism andfor traffic accidents City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 2-2 Prepared by NI3S — Fiscal Year 2010111 3. ESTIMATE OF COSTS The cost of servicing; maintaining, repairing and feelaeng the improvements as described in the Ptans .and 8pperficattpps are summarized in the table-, belOW. Estimated expenditures are shown along with the Incidental txpensegto be funded by the District. It is4he intent of the District to establish a. keserve. Fund .fer the District whiCh shall no exceed the estimated costs of maintenance :and servicing until December of each fiscal year, or whenever the District expects to receive its apportionment of special assessments and tax collections from the County, whichever is later. The following table summarizes the components that make up the 2010/11 estimate of costs for the District: Cog [Ofrannuat Maintenance. t 1. tawn planting care 2. Median planting.Cara 3. Palm:tree maintenance Water ttaae 6. Refurbishment of graphic Partela 6. General maintenance of electrical system 7. Electrical usage 8. Refurbishment of decorative crosswalks 9. Contingencies (1) Subtotal:, 'Incidentals: A. Adniiiitstration B. Advertisins) C. Leget.Peet D. Engineering E. ConsultantFees F. County Collection Fees Total Incidentals: Total Estimated Annual Cost: ,SprOluSor Deficit:' NET ANNUAL ASSESSMENT.BY IMPROVEMENT AREA: TOTAL ANNUAL ASSESSMENT FORTHE - - - — - ti, Median, . _ WimPrOlterit WOO teiMOD 5.14.00 18,360.00 14,000.00 6.630-00 10,02058 1,83&00 $75.765.88 $3,150.00 200.00 took° 700.00 2,201.97 56,354.2? $82,109..85 so so 582,109.85 $32,671001, • 18;360:00 0.00 0.00 0,00 2,800:00 "seti,770,00 $3.150.00 200,00 10660 !' 600.00' 2,20.1.07 .2.30 Sosii„gi $66,924.27 MOO $66,924.27 $149,034.12 (I) The Contneencies item wasiocreasedinAscal Year.2009110 to covera.portionof thereplacementotwaterventrolierstnthePistnt% The waterWaler eontroltWa wilt eontinUetobeleptered'eVer the nekt 2 to 3,years'..as,fundg glow. Any remainine,funos should beheld andused to start a Reserve Fund, City of National City —Landscape Maithenancabistriet No. 1 (Mile Cars) 3-1 Prepared by'NBS — Fiscal 'Year:20'10/11 4. ASSESSMENT DIAGRAM The. Assessment Diagram setsforth (a) the exterior boundaries of the,Districtend (Li) the lines,oteach lot or parcel tif land Withlii the District The Assessment Diagram further identifies- each tot or parcel by a distinctive number or leiter, For a detailed description of thalihes-and dimensions of any lot or parcel reference is made to the County Assessor's Map applicable for the next fiscal year, which map shall:govern for all details concerning the lines:and dinienSions of such lots or parcets. The following opOes proVider,scOpy of the Assessment Diagram forth& District. City of National City - Landscape Maintenance DistrictNo: (Me of Cars) 4-1 Prepared by NBS - Fiscal Year 2010111 mar M MtoriF5Pfi 1'NX ow RIAN'uT;n2C7 P MAI1QIIliE arT alas OTT CrJIASCON. CTT. STATE Cr CA/a9v+A rECOMIED)1. fit C FICE CF iIE SLPFA4IDW T Cr SMM% Or hit aTY 6 MAMMTAS'. air DMS 'aAr6 :OSSA arra-1I M. ow san - aL' DACraD4A ; art _ DF+NAfla1R. aIT-. STPE: eie' iM1FEN104' R OLEO MS DATSIr' TqS AT WO Mr '1 ASSEssiv E c CIWAS r tAauns,P10.03 N Ds .EGO Or1FE COUNT' rECOIE R:Or DECOUNTY Cr VS CCUIrreFls4L/ui e SrA1E a`61ataMA AMENDED ASSESSMENT DIAORAM'OF LANDSCAPE" MAINTENANCE DISTRICT No.1(MILE OF CAS, CRT OFNATIONAL crrY COUNTY OF BAN L IEOO STATE OF CALFOFCIA REVISED 8=1-94 FIEVISED 6430,03 'FEVISED 5=26.O4 '!AI! .. MLA4Ln PRO'vny aAI W aI! ,1 NASLAND ENGINEERING' nw Onwr= TA�y [nLn.L.; `erT4.tiY.rr.nLp Noi onK ..IAl- SHEET BIZE18` x 26' AMENDEDASSESSMENT DIAGRAM OF LANDSCAPE MAINTENANCEDISTRICT NC, 1 (MILE OF CARS) orrf OF NATIONAL CITY COLUTY OPSAN mop STATE 'OF 'CAUFORNIA ,..._ , torrrit —,,low, _ 2 FEVISEa 3+96 REM) eefig SEVISE114H9-112 SEI3SECY :6',03403, SEWED 5.26'04 SHEET 2 OF 3 VASLAND ENCiNEERING cm-arlonamme . • 11•11111%.7.7M „. ....... , NOT9 OFS3111AL. SIZE 18" 26 SHEET AMENDED AssepsmENT DIACJIRAM OP LANDSCAPE MAINTENANCE DISTR.& NO, 1 (MILE• OF CAM artor NAIIONALCITY =MY Cif OMMEGO WA% brtALIPOINIA weer 3 OF 8 01003i REV1SED e-i-ge Heise, 6-1-97 liEVISSI 8-194a flEIsa 43-0903 FEWS:M520-04 NASLAND ENGINEERING *TS SFS*, ilerr; Noire mow. weer sae lir x..26* IstE40/0****141k 5. ASSESSMENTS The actual assessments for Fiscal Year 2010/11, apportioned to each parcel as shown on the latest equalized roll at the County Assessor's office, are listed and submitted as Section SA of This Reboil The description of each Cot or parcel is part of the records of the County Assessor of the bounty of San Diego and such records:are, by reference, made part of this Report. 5.1 Method of Apportionment The law, requires and the statutes provide that assessments, as levied pursuant to the provisions of the Act, must be based on the benefit that the properties receive from the improvements to be maintained. Thestatute does not specify. the method: cir fortriUlt that Should be used in any special assessment district proceedings. The responsibility rests With the Assessment Pigineer, Who is appointed for the purpose of making an analysis of the facts and determining the correct eppertiOnment of the assessment obligation. IDENTIFY THE BENEFIT First, it is necessary to identify the benefit that the improvements to be Maintained will render to the properties, within the boundaries of the District. The improvements significantly -improve the visual appearance of the ,StreetSCape, making the, Mile of Cars a more enjoyable and 'desirable locationfOr customers. Thespecial signage and lighting provide aunifying therriei benefiting afl ofthe properties withihth6 APPORTIONMENTOF COSTS In further making the„analysist it is necessary that the property owners receive'a .special and direct benefit distinguished from that of the general public. In this.case, an in-depth analysis waslnadeand several factors aretierng used in the final method and spread of assessment. All of the improvements are intended to be of direct benefit:to propertieswithin the District. These improvements require significantly more maintenance than normally provided by the C. It is therefore appropriate that the; proPerties receiving the benefilbe: assenee& theadditional cast. There are generally two categories of improvements to be maintained by the District. The:median improvements benefit,all properties within the District. The improvements to the ParkWay'(referrectie heretn.as 'Frontage Improvements) benefit those properties which they abut. The specific method of spreading the assessment is described below: Median itinprevetnents 1. The total cost for, maintenance of the median improvements is apportioned to all parcels in the District based on the frontage of each parcel on National City Boulevard, with the exception of Parcel 26 V014,562-321-04 which is ovvried by the City of National City and therefore, is notsubject to an assessment, and as otherwise noted below. City of National City —Landscape Maintenance District No. 1 (Mile of Carl) 5-1 Prepared by NSS — Fiscal Year 2010/11 2. Parcel 32 (APN 562-220-11) has no frontage on National Ny Boulevard, but will benefit from the median improvements. This parcel is,asseiSed for median irriprciVetheM as if it had a frontage of 100 feet. Frontage Improvements 3. The total cost for maintenance of the. FrontagO Improvements is aoportionOd to all parcels in the District except,Parcel 26 (APN 66242108) and Parcel 32:.(.APN 562- 220-11), based on frontage of each such parcel on National City Boulevard. The frontage of each parcel is determined from current assessor's maps for the County of San Diego, State of California. PdI frontage dimensions have been rounded to the nearest foot. 5.2 AnnuaLacalation Factor The annual assessment to be levied on all properties within the distriet in any fiscal year Shall be subject to an annual escalation of up to 10% based upon actual and anticipated expenditures. The annual „assessment shall not exceed the maximum assessment unless the appropnate Proposition 21.8 proceedings are conducted by the Citrtbauthonze an increase beyond the maximum assessment amount. City of National City — LandscapeMaintenanceDisilid No. 1 (Mile of Cars) Prepared by NBS — Fiscal Year 201 /11 54 53 Assessment Rolf City of National City Landscape Maintenance District No 1 (Mire of Cars) Final Detail Report for the 2010/11 Billing 560:1MU-3 0- -560-203413-60— ' 560-204-02-00 560-204.0240 560;204-0400 560-204-04-00 560-210-01-00 560-216,0140 560-210-0440 560-2 p 4)44:4 560410,40-00 56041 (3,40b 560,240-41-00 500-210-41-00 5604142-00 500110-44-09-, 569-261-0840 560-261.48,-00 5.60,271 4)74x 664-271437,ti0 566471-0900. 560-271-0940 560-271-14-00 560-271-14-00 56047145-00 560,270 5450 560496-0140 560-330-0-0 5604343-00 560039: 686-3964)4-00 560.396-04-00 582-021-01-00 562-021-01-00 562-021-07-00 562-021-07-00 562,9.31'10 562-031;43-00 502"031-14400 . 66031',14400: 562490-0640 562,09640•60 . 402,400.,114012: 6..i dbA a-Ob ,., 562400-14-00 562-100-14-00 5620504300 562,1561340 56216007460 562-160-07-00 5621804240 6624804240 562-16043-00 5624 8043-00 562420;11-00 :92,-220i1 1 -ix 5i24,gb.0.00 $0-2g0;1-00 502-22031-00 50;404:1-tI0 •02,2,10,32:-00 5.62-20073:00, 562L;351,3700 56245147-00 56225148-00 562,25148-00 56&;10-i00 ..6.0.252;16;60 5021-90,-00, 50441 47,00, 404742413400. OZrg1700.90 502436354)0 *-00'35,00 6633,p4v00, 66Z,3049i.00 562:-330-.4840 562436-4340 562440-0940 5624,40-09,00 50240,4g10 440L'47.0P 02,340,4i0'I 5.E.i440,48,00 56944649166 562440,49100 662,34040-00 562-340 541.06 562-440;0,00 54.2:340-69-00 ,11014,5,t tAbi ) 2;362.46 (100 320519 ((01) 2,109,34 0400 2784432 .0,00 3,56056 0.00 '843i73 (mai) 606:24 17,90 4;666.21.6 0.00 1;266.-60 P'•OP 84673 (0:01) 1.,6030 0 ,600 1687.47 (0.01) 997294 0.00 2,362.46 0.00 8,096.85 (thoi) 1687.47 (001) 2,699.95 (0,01) 1.856.22 0.00 2699.95 (0,01). 4;556.17 (0,01) 4678.06 OP) 2,278.68 .0.60 3;526.81 pm 5,062.41 (001) 1;40312 000 2,14609 (101) 624.67 (0,01)' 3,08118 alit 2,616.58 0 00 5*0,5 ((MY 1408.69 (0.01) 2:618.07 (0'.01) 6i566.65 AO): 30.16 (9 0.00 0 op 4201=40 'P PP 'f.4eimni p.,00 0.0D 100 5062.41 GM Y 47014$ (GOO' t 367_35 !(,3..p0 4:61643 (0.01) 4910:62 6.0 62,41 (0.M) 5i90"4-9 4893,66 .0:00 09366 Totat $4 910i52 2 366 3.20§0 8 2,10944 2784,62 3,560,56 843,72 50624 405616 ?O;P 64372 1,603.10 1,687.46 9,672.94 4062:46 8,099.84 1,687.46 2,699,94 1,8564 Z06%8.4 4,556,16 2064s 227808 3;5211:60 5;062.40 1,0.9112 2,143.08 92426 3;66106 20*,613 P00$4 3,408.68 28106 OiP64,44 a;o710 PPP 44'14 1,282.46 0.00 064.40 2i76744 -057A A .e. CopytiglitV199,92008 NBS Pagel 'of 2 ,'/:4?2010 3:37:22PM City of National City Landscape Maintenance District No 1 (Mile of Cars Final Detail Report for the 2010/11 Billing 56234040-00 6 241 413Accountt, '$149 034.12 5143 033 08 ... . - ..„ ...„ Copyright --a-2008 N8S mf 2 8/412010 17:$7:22P114 CITY OF NATIONAL CITY Landscape Maintenance District No. 1 (Mile of Cars) FY 2010/11 Timeline for Levy of Assessments Category Action Performed By Due Date Completion Date -- Notes Timeline NBS prepares and delivers the proposed Fiscal Year 2010/11 Timeline NBS 2/19/2010 2/19/10 Timeline Agency Staff reviews the proposed timeline and provides comments Agency 3/1112010 CPI NBS gathers CPI data NBS 3/16/2010 N/A Budgets District/Agency Staff review the proposed District Budget and provide their approval Agency 3/17/2010 Budgets/Prop 218 NBS analyzes the District Budget(s) and reviews any need for rate increases NBS 4/09/2010 Report NBS prepares and delivers the Annual Report. NBS 4/30/2010 Report Agency Staff reviews the Annual Report and provides comments Agency 5/06/2010 Engineer's Stamp NBS provides an Engineers Stamp for the Annual Report NBS 5/12/2010 Resolutions NBS prepares and delivers three resolutions: Initiation, Approving the Annual Report, and the Resolution of Intention. NBS 4/29/2010 Report NBS delivers the Annual Report for Council approval NBS 5l12/2010 Council Meetin 9 City Council adopts three resolutions: Initiation, Approving the Annual Report, and the Resolution of Intention. City Council 5/18/2010 Notice City Clerk publishes the Resolution Declaring Intent. Notice must be in the local newspaper, not less than 10 days before the Public Hearing City Clerk 5/26/2010 Resolutions NBS prepares and delivers one resolution: Confirming the Diagram and the Assessment and Ordering the Levy NBS 5/27/2010 Council Meeting City Council conducts the Public Hearing, then adopts the Resolution Confirming the Diagram and the Assessment and Ordering the Levy City Council 6/15/2010 Resolutions Clerk delivers copies of all approved Resolutions to NBS City Clerk 6/24/2010 Levy Submittal NBS submits the levy of assessments to the County Auditor/Controller NBS 8/10/2010 DRAFT TABLE 1 DEVELOPER FEE COMPARISON COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Protect Summary A. Tax Credits (`^ i� �, tv d ,(; z? 4% Tax Credits 9% Tax Credits 4% Tax Credits 9% Tax Credits 9% Tax Credits 9% Tax Credits B. Review / Pro Forma Date gf�� C;'1��"^ - # Under Review Under Review 11/2009 09/2009 05/2009 02/2008 C. Project Type 7cr'S ? Family Family Acq./Rehab. Family, Senior Family Family D. Number of Units t • 62 44 52 110 65 45 E. Number of Bedrooms ✓ 138 84 86 221 133 156 Poway (1) Santee (1) Orange Gardens Summerhouse Cedar Gateway El Pedreaal 11. Development Costs/Eligible Basis A. Total Development Costs (2) B. Total Directs C. Eligible Basis (3) III. Developer Fee A. Developer Fee Per Unit Per Bedroom B. % of Total Development Costs C. % of Directs D. % of Eligible Basis IV. Developer Fee Deferred A. Deferred Developer Fee B. % of Total Fee (1) Reflect developer's pro forma currently under analysis by KMA. (2) Inclusive of acquisition costs, unless otherwise noted. (3) Eligible basis less developer fee. (4) Excludes acquisition costs. Prepared by: Keyser Marston Associates, Inc. Filename (:National City\Developer Fee Cwnpadeons:4/27/2010;rks $21,972,000 (4) $15,546,000 $19,406,000 $1,700,000 $27,000 $12,000 7.7% 10.91'a 8.8% $14,968,000 $7,847,000 $10,788,000. $1,415,000 $32,000 $17,000 $13,010,000 $3,212,000 $11,035,000 $1,400,000 $27,000 $16,000 10.8% 43.6% 12.7% $25,446,000 $13,145,000 $15,433,000 $1,600,000 $15,000 $7,000 6.3% 12.2% 10.4% $28,078,000 $21,787,000 $22,526,504 $1,400,000 $22,000 $11,000 5.0% 6.4% 6.2% $18,449.000 $12,834,000 $15,482,000 $1,400,000 $31,000 $9,000 7.8% 10.9% 9.0% $300.000 $200,000 $125,000 $300,000 $2,000 $340,000 17.6% 14.1% 8.9% 18.8% 0.1% 24.3% CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: 05-18-2010 AGENDA ITEM NO. 13 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute an agreement with CDWG Inc. in the amount of $89,344.20 to install and configure network storage infrastructure. PREPARED BY: Ron Williams DEPARTMENT: CMO PHONE: 619-336-4373 APPROVED BY: EXPLANATION: The network storage infrastructure is the platform responsible for storage of National City data(financials, email, city clerk records, permits, contracts, Network Drives(G,H,I) etc...). The current system is approaching its maximum storage capacity which will require replacement. Complexity of the current system requires outside assistance whenever technical issues arise. The proposed system would enable in-house technical support and administration through the implementation of mainstream information technology storage protocols. It is requested that Council waive the formal bidding requirements as allowed in Section 12 of Purchasing Ordinance #1480, and in Chapter 2.60.220(d) of the Municipal Code, and award the contract to CDWG Inc., for the following reasons: 1 CDWG INC. is an authorized vendor under the WSCA/NASPO Master Agreement B27170 City of National City is piggybacking California Participating addendum to WSCA contract B27170. J. No further purpose would be served by issuing a formal at this point in the process. FINANCIAL STATEMENT: APPROVED: /�ij1/Jt�; Finance ,n� ACCOUNT NO. 630-409-500-598-8002 APPROVED: �/ MIS Funded via IT internal services charges account ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt resolution BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: ntract vv.CA/NASPO Master Agreement B27170 RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH CDWG, INC., IN THE AMOUNT OF $89,344.20 TO DESIGN, INSTALL, AND CONFIGURE A NETWORK STORAGE INFRASTRUCTURE WHEREAS, the network storage infrastructure is the platform responsible for storage of National City computer data; and WHEREAS, the current system is approaching its maximum storage capacity and needs to be replaced; and WHEREAS, the State of California awarded a GSA contact to CDWG, Inc., to install and configure a network storage infrastructure, which National City can "piggyback", thereby getting the best purchase price; and WHEREAS, Section 2.60.260 of the National City Municipal Code provides that the City may buy directly from a vendor at a price established through competitive bidding by another public agency whose procedures have been determined be in substantial compliance with the City's procurement procedures, and the City Council has made such a determination in this case. It is therefore recommended that the purchase be made without complying with the competitive bidding procedure set forth in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby affirms the determination that the State of California's procurement procedures are in substantial compliance with the City's, and pursuant to Section 2.60.260 of the Municipal Code authorizes the waiver of the bidding process for a network storage infrastructure. BE IT FURTHER RESOLVED that the City Council hereby authorizes the Mayor to execute an agreement with CDWG, Inc., in the amount of $89,344.20 to design, install, and configure a network storage infrastructure. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND CDWG INC. THIS AGREEMENT is entered into this 18th day of May, 2010, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and CDWG INC. (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to design, install and configure a Netapp storage infrastructure. WHEREAS, the CITY has determined that the CONTRACTOR is a Storage Integrator and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit " A ". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15 % from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Ron Williams hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Rich Adams thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit " A "shall not exceed the schedule given in Exhibit " A " (the Base amount) without prior written authorization from the IT Manager. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit " A "as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall 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 the CITY and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 6. LENGTH OF AGREEMENT. The Software Maintenance coverage period is from May 18, 2010 to June 30, 2010 for software support. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this agreement, except upon the CITY's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR. shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CITY's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CITY, or for any liability to 2 City's Standard Agreement —June 2008 revision the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto 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. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee 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. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or .subCONTRACTORs, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subCONTRACTOR(s) shall require the subCONTRACTOR to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of the CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent CONTRACTORs and that the CONTRACTOR's obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, 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. The CONTRACTOR, and each of its subCONTRACTORs, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, 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 the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. 3 City's Standard Agreement — June 2008 revision B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the. CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR 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. The CONTRACTOR 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. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR 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 13, 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 the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR 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. The CONTRACTOR shall 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 the CITY. In its performance hereunder, the CONTRACTOR 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. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 4. City's Standard Agreement — June 2008 revision 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, 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 CONTRACTOR's negligent performance of this Agreement. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 17. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subCONTRACTORs, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ❑ - A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CITY and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be onor before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I: Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII 5 City's Standard Agreement — June 2008 revision according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. 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 the CONTRACTOR does not keep all of such insurance policies 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. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 18. 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, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. 6 'City's Standard Agreement— June 2008 revision D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR 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 hereunder, and less any damages caused the CITY by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. 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 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 CONTRACTOR: Ron Williams IT Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Rich Adams CDWG Inc. 230 N. Milwaukee Avenue Vernon Hills IL 60061 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. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, 7 City's Standard Agreement — June 2008 revision process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 23. 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. 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 terms 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. 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. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. City's Standard. Agreement — June 2008 revision K. 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 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 CDWG INC. (Corporation — signatures of two corporate officers) By: By: Ron Morrison, Mayor (Name) APPROVED AS TO FORM: (Print) (Title) By: George H. Eiser, III (Name) City Attorney (Print (Title) City's Standard Agreement — June 2008 revision EXHIBIT A NetApp Install and Configuration Statement of Work for City of National City Version 2.0 March 02, 2010 EXHIBIT A Submitted by: Rich Adams, CDW Feld Account Executive 805.559.0563 (mobile) Contributor: Gil Xiong, CDW Solution Architect 312.545.7421 (mobile) Copyright © 2010 CDW Government LLC. All rights reserved. No part of this document may be reproduced or transmitted in any form or by any means, electronic or mechanical, for any purpose, without written permission from CDW Government LLC. The costs, terms, and conditions contained in this proposal are valid for 30 days. Rev.080618 EXHIBIT A Contents Introduction 1 Value Proposition 1 Contact Persons 2 Description / Scope of Services 2 Out of Scope 5 Items to be Provided 5 Approval Criteria 5 City of National City Responsibilities and CDWG Assumptions 6 City of National City General Responsibilities 6 City of National City Technical or Project -Specific Responsibilities 7 CDWG General Assumptions 7 Other CDWG Assumptions 8 CDWG Technical or Project -Specific Assumptions 9 Project Scheduling 9 Professional Services Fees 9 Payment Terms 10 Expiration 10 Change Orders 10 Miscellaneous and Signatures 10 Locations Receiving the Benefit of the Services 11 Appendix A. Sample Change Order 13 General Information 13 Assessment 13 Assessment Results 14 Recommendations 14 EXHIBIT A NetApp Install and Configuration 5oW for Gty of National City March 02, 2010 Introduction Page 1 of 14 Introduction CDWG is pleased to present this Statement of Work (SoW) to City of National City for a NetApp Installation and Configuration. Based on our conversations with you, CDWG is confident that our methodologies and approach to business align closely with those of City of National City, and we look forward to working with you in making this and future projects a success. Value Proposition CDWG offers products, solutions and advanced technical services for all aspects of your IT environment. Our highly trained engineers and architects, certified in the latest technologies, can quickly evaluate your current environment, identify weaknesses and offer recommendations, and design and deploy new solutions that integrate with all the products and technologies you need to drive your business. Our offerings and capabilities range from peripheral devices to desktops, networks, storage and servers, mobile and wireless options, POS and AIDC, Telephony / IP, Power, Carrier Services, Document Management, and Software Licensing. Our products and services meet your needs in the areas of Unified Communications, Virtuali7ation, Security, Desktop Lifecycle Management and Hosted and Managed Services for all project phases. ASSESSMENT, PLANNING AND DESIGN • Assessments • Security Audits • Design Workshops IMPLEMENTATION • Configuration Center for large deployments • Highly trained engineers integrate your design with your environment SUPPORT • Maintenance contracts and warranty extensions • Post -sales technical support and helpdesk services HOSTED AND MANAGED SERVICES • Website Hosting in one of our three world -class data centers • Managed Services support networking devices, servers and operating systems, databases and applications CDWG's commitment to customer success has led to a comprehensive list of awards and certifications from world -leading partners: ■ Cisco Global Solution Innovation Partner of the Year; Cisco Gold Partner ■ Cisco U.S. Technology Excellence Partner of the Year — Unified Communications and Security • IBM Competitive Leadership Award; IBM Premier Partner ■ Microsoft Worldwide Partner Award — Advanced Infrastructure; Microsoft Gold Partner 8O08O8.9 UAW,,-nf EXHIBIT A NetApp Install and Configuration SoW for City cf National City Contact Persons March 02, 2010 Page 2of14 Contact Persons CDW•G will appoint a CDW•G contact person when the time for performance nears, and CDWG will communicate that person's name and information to your contact person. If your contact person is someone other than the individual who signs this SoW on your behalf, please supply the name of that contact person here: Name: Address: Phone: Email - Your contact person is authorized to approve materials and services provided by CDWG, and CDWG may rely on the decisions and approvals made by your contact person (except that CDWG understands that you may require a different person to sign any Change Orders amending this SoW). Your contact person will manage all communications with CDWG, and when services are performed at your location (or another location designated by you), your contact person will be present or available. Description / Scope of Services Subject to the other provisions of this SoW, CDWG will perform the following services: Customer's staff should be involved in every step of this installation for familiarity and skills transfer. CDWG engineers will allow City of National City staff to perform as much of the work as time allows. 1. NetApp Hardware Installation and Configuration a. Inspect delivered hardware b. Rack Controllers and disk shelves c. Cable Controllers to disk shelves. d. Power on controllers and complete initial setup e. Configure virtual interfaces. f. Configure remote management interface (RLM or BMC) g. Upgrade controller operating system and firmware. h. Upgrade disk and disk shelf firmware i. Configure AutoSupport j. Create aggregates k. Configure SSH if required 1. Configure SSL if required m. Create VLAN tags if required n. Create NFO (negotiated failover) on Network Interfaces if required. o. Configure Network Card Negotiated failover if required. p. Install NetApp documentation on each controller EXHIBIT A NetApp Install and Configuration SoW for City of National City Description / Scope of Services March 02, 2010 Page 3 of 14 2. CIFS Configuration of two CIFS shares a. Discuss CIFS best practices i. Terms (i.e. volume, share, snapshot) ii. Naming conventions iii. Volume sizing iv. Thin provisioning v. Snapshot reserve vi. Snapshot schedules Shares viii. DFS benefits ix. AD Integration x. GPO Integration xi. Same ACLs as N Pb.1' xii. RoboCopy_ xiii. Review of NetApp "File Access and Protocols -Management Guide" b. Customer training i. Create volumes for CIFS using FilerView ii. Configure Snapshots on CIFS volumes using FilerView iii. Create CIFS shares, using FilerView iv. Create CIFS shares using Microsoft Computer Management MMC v. Create CIFS shares on folder in CIFS share using FilerView vi. Create CIFS shares on folder in CIFS share using Microsoft Computer Management MMC vii. Restore file and folders using Microsoft's previous versions tab viii. Restore an entire volume with Snaprestore using Filervew ix. Configure Antivirus backup for CIFS x. Monitor CIFS environment (cifs sessions) xi. Perform controller failover test xii. Using FlexClone to clone volume if FlexClone was purchased. c. Discuss backup and recovery options for CIFS i. NDMP ii. UNC 3. Fl P Configuration of two shares or exports a. Discuss FTP best practices i. Authentication (UNIX or AD) ii. Overriding home directory so all users start in same directory iii. Review of NetApp "File Access and Protocols Management Guide" b. Customer training i Enable 1~ I P ii. Configure /etc/cifs_homedir.cfg (if homedir override is not in use) iii. Configure homdir override iv. FI'P to controller to validate connection and configuration v. Monitor FI'P environment 4. iSCSI Configuration of three servers EXHIBIT A NetApp Install and Configuration SoW for City of National Cory Description / Scope of Services March 02, 2010 Page 4 of 14 a. Discuss iSCSI best practices i. Terms (i.e. volume, LUN, snapshot, iGroup) ii. Naming conventions iii. Volume sizing iv. LUN sizing v. Thin provisioning vi. Snapshot reserve vii. Snapshot schedules (disable) viii. Migrating data to new LUNs ix. Review of NetApp `Block Access Management Guide for iSCSI and FCP" b. Customer training i. Install iSCSI software initiator if required ii. Install drivers and firmware for iSCSI hardware initiator if required iii. Install iSCSI host utilities iv. Install SnapDrive if purchased v. Create volumes for iSCSI LUNs vi. Configure initiator Security with CHAP using FilerView vii. Configure iSCSI connections from server to controller viii. Configure iSCSI MPIO ix. Create initiator group using SnapDrive or FilerView x. Create LUN using SnapDrive or FilerView xi. Connect LUN to server using SnapDrive or FilerView xii. Using OS utilities format LUN if SnapDrive was not purchased xiii. Monitor iSCSI environment xiv. Perform controller failover test xv. Using FlexClone to done volume if FlexClone was purchased. c. Discuss backup and recovery i. Current backup and recovery steps do not change unless you purchased the SnapManager application 5. A-SIS Configuration of two volumes a. Discuss A-SIS best practices i. Maximum Volume sized based on controller type ii. LUNs per Volume considerations iii. Deduplication at Volume level iv. Affects on performance v. Review of "NetApp A-SIS Deduplication Deployment and Implementation Guide" b. Customer training i. Enable A-SIS per volume ii. Start A-SIS on volume iii. Review space savings iv. Schedule night A-SIS scans. v. Monitor A-SIS environment 8OO 8O3.4G.co n EXHIBIT A NetApp Install and Configuration SoW for City of National City Out of Scope March 02, 2010 Page 5 of 14 Out of Scope Any other tasks not included in this Statement of Work will be considered out -of -scope and will be billable on a time -and -materials basis. Tasks outside the statement of work include, but are not limited to: ■ Planning for production data migration. ■ Migration of production data to CIFS shares • Migration of production data to FCP or iSCS1 LUNs unless SnapDrive was purchased then migration of one server for which Snap Manager was purchased is included in training. • Configuration of iSCSI LUNS to more than three servers Items to be Provided The following items will be provided to City of National City at the completion of this project. ■ NetApp SAN diagram Approval Criteria The approval criteria for this engagement are as follows: • NetApp controllers installed and configured • Configuration of NetApp AutoSupport • Testing of controller failover during customer training • Successful completion and delivery of deliverable • Develop City of National City staff's skill so they are familiar with o Creation of volumes o Configuration of snapshots o Creation of CIFS shares o Creation of LUN o Creation of iGroups o Mapping LUNs to iGroups and then accessing those LUNS from servers o How to ensure each host has more than one path to a LUN o Monitoring each protocol via the controllers EXHIBIT A NetApp Install and Configuration SoW for City of National City City of National City Responsibilities and CDWG Assumptions March 02, 2010 Page 6 of 14 City of National City Responsibilities and CDWG Assumptions Completion of the work outlined in this Statement of Work depends upon a number of responsibilities and assumptions as listed below. If you do not fulfill all of your responsibilities under this SoW in a timely manner or if any assumption is incomplete, incorrect or becomes incorrect, then: • The anticipated schedule for this project may be delayed. ■ Scheduled personnel may be reassigned to a different project or may become idle. CDWG will have the right to invoice you for any time CDWG's personnel had been scheduled to perform this SoW (calculated using the rates specified in the "Professional Services Fees" section below using an eight -hour day) if such personnel do not perform on those scheduled days because of your failure to fulfill all of your responsibilities or because of an incomplete or incorrect assumption. • The amount of time it takes to perform the services may increase and/or CDWG may need to perform additional or different services in order to be able to perform the services that are the subject of this SoW, in which case, CDWG; will invoice you for any such additional or different time or performance (calculated using the rates specified in the "Professional Services Fees" section below in the increments specified therein). • It may be commercially unreasonable for CDWG to perform the services that are the subject of this SoW, either in whole or in part, in which case CDWG will have the tight to terminate this SoW upon notice to you. In addition to any other responsibilities described in this SoW that you may have, your obligations include (without limitation) those listed below. City of National City General Responsibilities • Together with CDWG, schedule the performance of the services. • Communicate all material project matters to CDWG's contact person. • Provide at least one qualified technical person with system administration responsibilities for the duration of the project. • Provide qualified personnel at your location (or any other location designated by you where services are to be provided) to support your existing equipment for the duration of the project. • Provide other full-time qualified, knowledgeable personnel who will perform your obligations under this SoW, make timely decisions necessary to move performance of the services forward, participate in this project to the extent reasonably requested by CDWG and reasonably assist CDWG with its performance of the services. ■ Provide CDWG's personnel with appropriate levels of access and privilege to systems and information necessary for CDWG's performance of the services. 1 t 6_ll`L'VG.CQm EXHIBIT A NetApp Install and Configuration SoW for City of National City City of National City Responsibilities and CDWG Assumptions March 02, 2010 Page 7 of 14 • Reliable data backup procedures for data recovery in the event of data loss. • Perform other reasonable duties and tasks to facilitate CDW G's performance of the services, including (without limitation): — provide blueprints or floor plans of buildings/campus; — provide descriptions and diagrams of your existing environment; - provide business and technical specifications desired for this project; — provide the proper physical environment for all devices; and — provide proper electrical power for all devices. City of National City Technical or Project -Specific Responsibilities • Ensure the Site Readiness and Controller infonnation sheet is completed prior to the first day scheduled day of the engagement with CDWG. The information in this document help to ensure the environment is ready. The information in this document is used during the first step "NetApp Hardware Implementation and Configuration', by CDWG staff. • Ensure a conference room or class room with overhead projector is available for customer training sessions. The customer training sessions will take up a majority of the time estimated to the project, so it is a good idea to reserve the room for the entire day and every day after starting with the second day of the engagement. • Ensure intemal staff is present for all training sessions and is prepared to take notes. Your staff, not CDWG staff, will be completing a majority of the NetApp configuration. These hands on training sessions will help to ensure your staff can take what they learn in the training sessions and repeat those processes later. No amount of training will supplement the need to review documentation. Each training session will include a review of the NetApp documentation which has documented step by step procedures which can be followed for subsequent configuration by your staff. • Ensure access to production systems is available and approved for training sessions. In order to complete iSCSI and FCP LUN assignment to servers reboots will be necessary. If production servers cannot be rebooted during training sessions then test servers must be provided. CDWG General Assumptions in addition to any other assumptions described in this SoW, CDWG assumes the following: • When services are performed at your location (or another location designated by you), they will be performed during normal business hours (7:00a.m. to 6:OOp.m. local time Monday through Friday, excluding the holidays). • Some services may be performed at a location other than your location (or another location designated by you). • When services are performed at your location (or another location designated by you), you will provide adequate, co -located workspace for the engagement personnel (both CDWG's personnel and your personnel) with appropriate system access. CDWG EXHIBIT A NetApp Install and Configuration SoW for City of National City City of National City Responsibilities and CDWG Assumptions March 02, 2010 Page 8 of 14 recommends keeping these personnel separate from support teams and those performing daily operations. ■ You will allow CDW•G to perform several interviews of stakeholders, sponsors, team members, technical staff and managers, who will be reasonably available for the time it takes to gather information. • In addition, your personnel will be available on a timely basis, and when reasonably requested by CDWG, your personnel will provide input, review the services being performed and the items provided by CDWG, answer questions, provide signoff, and allow CDWG to gather and validate information, perform reviews and obtain other input. • Your personnel will be committed to the degree necessary to successfully complete this project. • The scope and objectives of this project will be jointly managed by you and CDWG to better ensure completion of the project within the anticipated schedule. ■ You and CDWG will follow CDW's Project Management Methodology for this project. • You have acquired all necessary hardware and software required to complete this project. ■ You will provide network connectivity, Internet access and voice access for local and long distance calls. • When services are performed at your location (or another location designated by you), the site will be secure. CDW•G is not responsible for lost or stolen equipment. Other CDWG Assumptions • Once the business and technical specifications desired for this project have been approved by your contact person and CDWG's contact person, no changes to it will be made without a valid Change Order signed by both your authorized representative and CDWG's authorized representative. • All Change Orders will be provided in a timely fashion either by U.S. Mail, e-mail, personal transfer or facsimile transmission to CDWG's contact person. • If specified in the "Description/Scope of Services" section above, initial support services related to the services that are the subject of this SoW will be available as specified in that section. CDWG will invoice you for the time CDWG performs this support, calculated using the rates specified in the "Professional Services Fees" section below (in the increments specified therein). If you do not already have a maintenance contract for any additional support services, CDWG encourages you to obtain one by contacting a CDWG account team. Those additional support services are separate from the services provided under this SoW. • The configuration of any product or other device is a service that is separate from the services provided under this SoW unless such configuration is included in the "Description/Scope of Services" section above or elsewhere in this SoW (as this SoW may be amended by one or more Change Orders). 5!1 . 3.4239 i CDV!G.corn EXHIBIT A NetApp Install and Configuration SoW for City of National ay Project Scheduling March 02, 2010 Page 9 of 14 CDWG Technical or Project -Specific Assumptions • City of National City will rack mount any necessary equipment (Controllers, Disk shelves, SAN Switches, etc.) prior to CDWG's arrival. Ethernet cables, Fibre Cables and power cables will also be run prior to CDWG's arrival. ■ City of National City will provide all static IP addresses for the controllers and SAN switches based on the Site Readiness and Controller information document. • Project management will be the responsibility of City of National City. CDWG will work with City of National City project manager to plan the project properly. • Services will be performed at CDWG and customer locations. Project Scheduling Any dates, deadlines or schedules included in this SoW or otherwise anticipated for this project are estimates only and will be used for planning purposes. only. CDWG's contact person will contact your contact person regarding scheduling matters, and together we will develop an anticipated schedule. Professional Services Fees CDWG will invoice you for the services specified in this SoW for a total fee of $12,500. This fee is broken down as follows. TABLE 1. PROJECT FEES Signed Statement of Work Initial Implcmcntation Project Completion Total 50% 25% 25% 100% $6,250.00 $3,125.00 $3,125.00 $12,500.00 CDWG will invoice the total fee to you in phases in each case after CDWG has completed providing services related to the applicable milestones above, calculated using the corresponding applicable percentage above. If at a later time this SoW is amended (by one or more Change Orders) to include different or additional services and the fixed fee above is not also thereby amended or specifically confirmed to remain the same, then CDWG will invoice you for such different or additional services using CDWG's then -standard published rates. The fees and rates above do not apply to services not specified in this SoW (as this SoW may be amended by one or more Change Orders). CDWG would be pleased to consider addressing any additional services you may like under a separate statement of work. n }O.? O .4239 I cream m EXHIBIT A NetApp Install and Configuration SoW for City of National city Payment Terms March 02, 2010 Page 10 of 14 Payment Terms You will pay invoices containing amounts authorized by this SoW within 30 days of receipt. Any objections you may have to an invoice will be made to CDWG within 15 days after the date of the invoice and will be directed to CDWG's contact person. Expiration This So\X/ will be of no force or effect if you do not sign it and transfer the signature page, together with all other pages, to CDWG so that it is received within 30 days from the date on its cover page. If your signature arrives after expiration of that 30-day period, CDWG may nonetheless elect to countersign and perform under this SoW, but the decision to do so will be in its sole discretion. This SoW will be of no force or effect unless fully signed by both you and CDWG. This SoW may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original. Electronic signatures of this SoW (or copies of signatures sent via electronic means) are the equivalent of a written and signed SoW. Change Orders This SoW may be modified or amended only in a writing signed by both you and CDWG (referred to in this SoW as a Change Order). A sample partial Change Order form is attached as Appendix A. To modify or amend this Statement of Work, contact your CDWG Contact Person for a Change Order form. Complete and return the form to the CDWG Contact Person. Each Change Order will be of no force or effect if you do not sign it and transfer the signature page, together with all other pages, to CDWG so that it is received within 30 days from its date. If your signature arrives after expiration of that 30-day period, CDWG may nonetheless elect to countersign and perform under that Change Order, but the decision to do so will be in its sole discretion. Whenever there is a conflict between the terms and conditions set forth in a fully signed Change Order and those set forth in this SoW or a prior fully signed Change Order, the terms and conditions of the most recent fully signed Change Order shall prevail. Change Orders are of no force or effect if they are not fully signed by both you and CDWG. Each Change Order may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original. Electronic signatures of a Change Order (or copies of signatures sent via electronic means) are the equivalent of a written and signed Change Order. Miscellaneous and Signatures Subject to the `Expiration" section above, this SoW is effective as of: , 20 (or, if left blank, on the date that this SoW is signed by the last of the parties below to do so) (the "Effective Date"). CDWG's terms and conditions of Product Sales and Service Projects contained in the "Terms & Conditions" link at www.CDWG.com (the "Terms and Conditions") govern this SoW, unless there is an existing written agreement covering the type of services specified in this SoW (the "Agreement") • • EXHIBIT A NetApp Install and Configuration SoW for City of National City Mardi 02, 2010 Miscellaneous and Signatures Page 11 of 14 between the parties hereto or between you and an affiliate of CDWG, in which case, such Agreement will govern. If there is a conflict between this SoW and the Terms and Conditions or, if applicable, any Agreement, then the Terms and Conditions or the Agreement will control, except as expressly amended in this SoW by specific reference to the Terms and Conditions or the Agreement. References in the Terms and Conditions or the Agreement to a Statement of Work or a Work Order apply to this SoW. This SoW is the proprietary and confidential information of CDWG. This SoW can be terminated by CDWG without cause upon at least 14 days' advanced written notice. Locations Receiving the Benefit of the Services Type of Service Physical Address Implementation Street 1243 National City Blvd City: National City State & Zip: National City California 91950 In acknowledgement that the parties below have read and understood this SoW and agree to be bound by it, each party has caused this SoW to be signed and transferred by its respective authorized representative. CDWG as used in this SoW: YOU as used in this SoW: CDW Government LLC City of National City By (signature): By (signature): Name (printed): Name (printed): Title (printed): Title (printed): Phone: Phone: Email: Email: Date: Date: Mailing Address: Street: 200 N. Milwaukee Ave. City: Vernon Hills State & Zip: IL 60061 11'10030',zt?3J I Mailing Address: Street: City: State & Zip: EXHIBIT A NetApp Install and Configuration SoW for City of National City March 02, 2010 Miscellaneous and Signatures Page 12 of 11 Billing Contact: Street: City: State & Zip: Purchase Order ❑ A purchase order for payment under this SoW is attached. D A purchase order is not required for payment under this SoW. Initials of PSM: EXHIBIT A NetApp Install and Configuration SoW for City of National City Appendix A. Sample Change Order Mardi 02, 2010 Page 13 of 14 Appendix A. Sample Change Order Project Name Date of Change Request Requesting Party Urgency • Low to have but will not expend resources —nice to include. Medium and if we can include it, we • —important should. • High —required and must be included. • Critical —review and expedite immediately. Nature of the change. Choose all that apply. • Scope • Schedule • Budget • Performance Reason for change. Describe in detail. Description of change. Describe in detail if not already evident in reason above. Impact of not changing. Describe in detail Is the assessment of this request authorized? Yes sNo What is the budget for the assessment of this change request? Who is responsible for performing the assessment? List all participants. -,firm. I p a'�il4x.etiS d_E.�r .+. I Ci�,1�_,.C"inlll EXHIBIT A NetApp Install and Configuration SoW for City of National City Appendix A. Sample Change Order March 02, 201U Page 14 of 14 Assessment Results Overall impact of performing the change request. • Absolutely necessary to achieve desired results. • Discretionary —provides benefits beyond the original target. • Scope reduction that will not impact original targets; • Scope reduction that will impact original targets. Impact on cost, for example in labor and equipment. Functional impact. Technical impact; for example, on performance and specific components. Impact on project schedule and resources. Recommendations Overall recommendations. Alternatives considered. Exntutc A alga, NetApp Customer: Qte date: May 3, 2010 Customer # Acct Mgr Rich Adams Email: Contact: Address: Phone: Phone: _ Prep by: Email: Email: Qty Part Number Descrlptlon Unit Price Ext Price FAS2040 1 DOC-2040-C Documents,2040,-C $0.00 $0.00 1 DS4243-1511-24S-R5-C DSK SHLF,24x450GB,15K,3Gb SAS,IOM3,-C,R5 $31,961.03 $31,961,03 1 FAS2040-12-X298A-R5-C FAS2040,DIsk Shelf 12x1.0T6 SATA,-C,R5 $3,189.57 $3,189.57 2 FAS2040A-BASE-R5 FAS2040A,Act-Act,System Controller,R5 $1.492.20 $2,984.40 2 SW-2040A-WIN-BNDL-C Windows Bundle,SW,NetApp Select,2040A,-C $10,534.74 $21,069.48 2 SW-BASE-PK-C SW,BASE Pack: C $0.00 $0.00 4 X6536-R6-C Cable,Optical,LC/LC,5M,X,-C,R6 $63.59 $254.36 4 X6539-R6-C SFP,Optica1,4.25Gb,-C,R6 $50.87 $203.48 2 X6558-R6-C Cable,SAS,QSFP-QSFP,Cu,2m,-C,R6 $52.99 $105.98 3 X6561-R6-C Cable,Ethemet,RJ45,CAT8,2m,-C,R6 $0.00 $0.00 6 XBOOE-R6-C Power Cable North America: C,R6 ' $0.00 $0.00 1 CS-A-INST-4R SupportEdge Standard Replace 4hr,Install - 38 months $16,835.90 $16,835.90 1 COW Professional Services $12,500.00 $12,500.00 terms: quotes are good for 30 days prices may change at anytime please contact your account manager for questions Grand total $89,104.20 Freight $240.00 WSCA/NASPO NetApp Inc. Master Price Agreement Number B27170 California Contract Number B27170 California State Ordering Instructions -Authorized Resellers Partners The following NetApp Partners are authorized to provide quotes, accept purchase orders, and accept payment from WSCA/NASPO eligible end users located in the state of California. Name WSCA Title Phone Email Address CDW-G Inc Jaime Burgquist, NetApp Partner Specialist (877) 325-2414 FAX (847) 419-8576 jaimbur@cdw.com Dennis DiPietro Sales Applied Computer Operations and (714) 861-2210 Solutions aka: ACS Program Mgt FAX (714) 842-8299 dennis.dipietro anacsacs.com (415) 720-5020 Bear Data Don James, Owner FAX (415) 788-1511 diames(a�bdata.com Immix Technology (703) 752-0642 Group Pat Cruciani, Manager FAX (703) 752-0613 •crucian • immix. rou•.com Insight Investments (714) 939-2336 Inc Chris Aliberti FAX (949) 266-5522 Caliberti@insightinvestments.com Integrated Archive (650) 528-4345 Systems Inc (IAS) Amy Rao, CEO FAX (650) 390-9997 amyr@iarchive.com Brian Hall, Regional (925) 301-4010 INX Inc Director FAX (916) 604-3250 Brian.Hall@INXi.com Working WSCA California State Ordering Instructions -Authorized Resellers Partners v6.doc DMO: 10/29/09 CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014) NetAPP, INC. MASTER PRICE.AGREEM11IENT CONTRACT B27170 1. Scope: This Participating Addendum covers the purchase of all Computer Equipment, Software, Peripherals and Related Services for all California political subdivisions/local governments. A subdivision/local government is defined as any city, county, city and county, district, or other local governmental body or corporation, including the California _State Universities (CS.U) and University of California (UC) systems, K-12 schools and community colleges empowered to expend. public funds. Each political subdivision/local government should make its awn determination: whether the WSCA program is consistent with its procurement policies and regulations. STATE AGENCIES ARE RESTRICTED FROM.USING THIS CONTRACT IN ACCORDANCE WITH MANAGEMENT MEMO 05-11, EXCEPT FOR THOSE CATEGORIES NOT OFFERED UNDER CALIFORNIA STRATEGIC SOURCING INITIATIVE (CSS1) CONTRACTS FOR IT HARDWARE: PC GOODS AND ENTERPRISE, SERVERS AND STORAGE PRODUCTS. • PLEASE-CIACK-ON PHIS-LANK-FOR-SUPPL-EMENT-ARY-TERMSANI3•GONDITONS-WHEN AMERICAN RECOVERY AND REINVESTMENT ACT (ARRA) FUNDS ARE USED. HTTP:Ii1NWW.DOCUMENTS.DGS.CA.GOVJPDIDELEGATIONS/PAC061009.11TM 2. Leasing Funding to purchase or lease productsavailable under this contract may be available to State agencies via the GS $Mart (purchases) or Lease $Mart. program. Far small dollar transactions where.GS $Mart or Lease $Mart isn't available, local agencies are able to take advantage of leasing options in the original (Minnesota) contract. 3. Changes: Changes to the terms and conditions of the signed Master Price Agreement and Participating Addendum are as follows: a. The Gafifornia General Provisions {CAMP) (GSPD-40irr based on April , 2167 standard) for Western States Contracting Alliance :(WSCA) Computer Equipment, Soitrrare, Peripherals and Related Services as attached become apart of this: Participating Addendum. b. The California General Provisions (CAGP) shall prevail if there is a conflict between the terms and conditions of the. contractor's WSCA State of Minnesota, Master Price Agreement, packaging, invoices, catalogs, brochuresand technical data sheets. c. The State of California will retain the same contract number asthe .State of Minnesota, Master Price Agreement number, B27170. d. State of Minnesota,Master Price Agreement cover page i he by odified as follows: "Original Award Date° changed to Effective Date°. e. Replace "State of Minnesota." with 'State of California." where "State:of Minnesota is referenced in the State cif Minnesota Terms and Conditions. f. Delivery: As.negotiated between agency and contractor and included in the purchase order, or as otherwise stipulated in the contract. 5• DGS Termination of Contract Revised ae22eioa Page 1 of 4 g• CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014) NetAPP, INC. MASTER PRICE AGREEMENT CONTRACT B27170 DGS Termination of Contract: The State may terminate this contract at any time upon 30 day prior written notice. Upon termination or other expiration of this contract, each party will assist the other party in orderly termination of the contract and the transfer of all assets, tangible and intangible, as may facilitate the orderly, nondisrupted business continuation of each party. This provision shall not relieve the contractor of the obligation to perform under any purchase order or other similar ordering document executed prior to the termination becoming effective. h. Reports & Administrative Fee: Contractor shall submit report to the Califomia Contract Administrator for all California purchases providing the following information: Agency Name Purchase Order Number Purchase Order Date Total Purchase Order Amount WSCA Administrative Fee Dollar Amount Agency Contact Name Agency Address Agency Telephone Number Total Dollars for the quarter The Contractor shall submit a check, in addition to the report, payable to the State of California, Contract Administrator for the calculated administrative fee for an amount equal to one percent (0.01) of the sales for the quarterly period. This fee shall be included as an adjustment to contractors WSCA pricing and not invoiced or charged to the purchasing entity. Payment of the administrative fee by Contractor due irrespective of status of payments on orders from users to Contractor. A report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Failure to submit reports and fees on a timely basis shall constitute grounds for suspension of this agreement. Reports and fee delivery will be in accordance with the following schedule. Calendar Quarter 1 Calendar Quarter 2 Calendar Quarter 3 Calendar Quarter 4 (JUL 1 to SEP 30) (OCT 1 to DEC 31) (JAN 1 to MAR 31) (APR 1 to JUN 30) Due OCT 31 Due JAN 31 Due APR 30 Due JUL 31 The administrative fee check and report should be submitted to the following address: Cynthia Okoroike Department of General Services Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202, West Sacramento, CA 95605-2811 h. The primary state govemment contact for this Participating Addendum is as follows: Department of General Services, Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202 West Sacramento, CA 95605 Revised 8/28/08 Page 2 of 4 CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014) NetAPP, INC. MASTER PRICE AGREEMENT CONTRACT B27170 Contact: Cynthia Okoroike E-mail: cvnthia.okoroike(Wdgs.ca.gov Phone: (916) 375-4389 Fax: (916) 375-4663 i. The primary NetApp, Inc. CUSTOMER contact for this Participating Addendum is as follows: j. NetApp, Inc. Address: 1921 Gallows Rd. Suite 600 Vienna, VA 22182 Contact: Denise Orosco E-Mail: denise.orosco@netam.com Phone: 530/1644-1467 Fax: 703/918-7301 Price Agreement Number: The Master Price Agreement number for the Participating State is B27170. The Master Price Agreement Number MUST be shown on all.Purchase Orders Issued against this Master Price Agreement. This Addendum and the Price Agreement together with its exhibits and/or.amendments, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Addendum and the Price Agreement, together with its exhibits and/or amendments, shall not be added to or incorporated into this Addendum or the Price Agreement and its exhibits and/or amendments, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Addendum and the Price Agreement and its exhibits and/or amendments shall prevail and govem in the case of any such inconsistent or additional terms. k. Effective Dates: This Participating Addendum shall be effective upon approval by the Department of General Services and will continue until the End Date of the Master Price Agreement. Lead State amendments to extend the term date are automatically incorporated into this Participating Addendum unless terminated early in accordance with the terms and conditions of the Master Price Agreement or this Participating Addendum. I. Servicing Subcontractors: Revised8/28/08 Page 3 of 4 CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014) NetAPP, INC. MASTER PRICE AGREEMENT CONTRACT B27170 The following servicing contractors are authorized: All contractors' authorized business partners listed on the state's landing page on this website http://www.netapp.com/us/how-to-buy/wsca/wsca.html. All orders are to be issued directly to: All contractors' authorized business partners listed on the state's landing page on this website htto://www.netapp.com/us/how-to-buy/wscalwsca.html. And all payments are to be issued to: All contractors' authorized business partners listed on the state's landing page on this website htto://www.netaop.com/us/how-to-buy/wsca/wsca.html. By Signing below NetApp, Inc. agrees to offer the same products/and or services as on the State of Minnesota B27170 at prices equal to or lower than the prices on this contract. IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of the date of execution by both parties below. State of Califomia: By: ›//Z Name: Jim Butler b3JIA1iiJ NUJ 31A8351VU N39 NetApp, Inc. A -cc Title: Deputy Director Date:. // lS Revised 8/28/08 Page 4 of 4 By: Name: Title: Date: M Pr icl + CSbb C,Seaci 10-23-CA WESTERN STATES CONTRACTING ALLIANCE MASTER PRICE AGREEMENT for COMPUTER EQUIPMENT, PERIPHERALS, AND RELATED SERVICES Number B27170 This Agreement is made and entered into by NetApp, Inc., 1921 Gallows Road, Suite 600, Vienna, VA 22182 ("Contractor") and the State of Minnesota, Department of Administration ("State") on behalf of the State of Minnesota, participating members of the National Association of State Procurement officials (NASPO), members of the Western States Contracting Alliance (WSCA) and other authorized Purchasing Entities. RECITALS WHEREAS, the State has the need to purchase and the Contractor desire to sell; and, WHEREAS, the State has the authority to offer contracts to CPV members of the State of Minnesota and to other states. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: INTENT AND PURPOSE The intent and purpose of this Agreement is to establish a contractual relationship with equipment manufacturers to provide, warrant, and offer maintenance services on ALL products proposed in their response to the RFP issued by the State of Minnesota. Delivery, support, warranty, and maintenance may be provided by the Contractor using subcontractors. The Contractor agrees to take legal responsibility for the warranty and maintenance of all products furnished under this Agreement. The Contractor is responsible for the timeliness and quality of all services provided by individual subcontractors. Subcontractor participation will be governed by individual Participating Entities, who have the sole discretion to determine if they will accept services from a subcontractor. Individual Purchasing Entities may enter in to lease agreements for the products covered in this Master Price Agreement, if they have the legal authority to enter into these types of agreements without going through a competitive process, and if the Contractor submitted copies of its lease agreements with its response to the RFP. The lease agreements were not reviewed or evaluated as part of the RFP evaluation process. The agreements are located in Exhibit C, Value -Added Services. The Agreement is NOT for the purchase of major, large hardware or hardware and software offerings. In general, individual units/configurations for servers and storage 1 of 35 (SANs, etc.) should not exceed $300,000 each. Desktop per unit/configuration costs should not exceed $100,000. Printers of all types and monitors per unit/configuration costs should not exceed $50,000 each. It is the expressed intent of some of the Participating States to set this level at not to exceed $25,000 each, or $50,000. Contractors must be wilting to comply with these restrictions by agreeing to supply products in those price ranges only. This IS NOT a restriction on how many units/configurations can be purchased, but on the value of each individual unit/configuration. Individual Participating States and Participating Entities may set specific limits in a participating addendum above these limits, with the prior approval of the WSCA Directors; or may set speck limits in a participating addendum below these limits. Contractors may offer, but participating states and entities do not have to accept, limited professional services related ONLY to the equipment and configuration of the equipment purchased through the Agreement. I. Definitions "Announced Promotional Price" are prices offered nationally to specific categories of customers (Consumer, Business or government) for defined time periods under predefined terms and conditions. "Consumables" those items that are required for the operation of the Equipment offered or supplied which are consumed over time with the purchaser's use of the equipment are included — printer cartridges, batteries, projector bulbs, etc. Consumables such as magnetic media, paper and generally available office supplies are excluded. "Configuration" in most instances in this document means a total system configuration. This may include more than one model or part number (or SKU), or a combination of hardware, software, and configuring of the system to make the system work. "Contract" means a binding agreement for the procurement of items of tangible personal property or services. Contract and Master Price Agreement are used interchangeably in this document. "Contractor" means the successful Responder who enters into a binding Master Price Agreement. The Contractor is responsible for all sales, support, warranty, and maintenance services for the products included in this Agreement. The Contractor must manufacture or take direct, non -assignable, legal responsibility for the manufacture of the equipment and warranty thereof. For the purposes of this Contract, the term Contractor and Contract Vendor are synonymous. "CPV Member" is any governmental unit having independent policy making and appropriating authority, that is a member of Minnesota's Cooperative Purchasing Venture (CPV) program. "CPV Program." The Cooperative Purchasing Venture (CPV) program, as established by Minn. Stat. § 16C.03, subd. 10, authorizes the commissioner of Administration to "enter into a cooperative purchasing agreement for the provision of goods, services, and utilities with [governmental entities] ..., as 2of35 described in section 471.59, subdivision 1" Based on this authority, the commissioner of Administration, through the Materials Management Division (MMD), enters into a joint powers agreement that designates MMD as the authorized purchasing agent for the governmental entity. It is not legal for governmental entities that are not members of the CPV program to purchase from a State contract. Vendors are free to respond to other solicitations with the same prices they offer under a contract, but that is not considered use of the "State contract price: "Cumulative Volume Discount" means a contractual, cumulative, permanent volume discount based on dollars resulting from the cumulative purchases by all governmental purchasers for the duration of the Master Price Agreement. "Documentation" refers to manuals, handbooks, and other publications listed in the PSS, or supplied with products listed in the PSS, or supplied in connection with services. Documentation may be provided on magnetic media or may be downloaded from the Contractor's web site. "E-Rate" is a program sponsored by the Federal Communications Commission whereby educational and other qualifying institutions may purchase authorized technology at reduced prices. "Educational Discount Price" means the price offered in a nationally announced promotion, which is limited to educational customers only. "Equipment" " means workstations, desktop, laptop (includes Tablet PC's), handheld (PDA) devices, projectors, servers, printers, monitors, computing hardware, including upgrade components such as memory, storage drives, and spare parts. AUDIO VISUAL PRODUCTS (digital cameras, televisions, whiteboards, etc.) are NOT included in this RFP or subsequent contracts. The exception to this definition is whiteboards, which can be sold as part of the Instructional Bundles, but not as a stand-alone item. "FCC" means the Federal Communications Commission or successor federal agency. In the event of deregulation, this term applies to one or more state regulatory agencies or other governing bodies charged to perform the same, or similar, role. "General Price Reduction Price" means the price offered to consumer, business or governmental purchasers at prices lower than PSS pricing. General price reduction prices will be reflected in the PSS as soon as practical. "Lead State" means the State conducting this cooperative solicitation and centrally administering any resulting Master Price Agreement(s). For this Master Price Agreement, the Lead State is Minnesota. "Mandatory" The terms "must" and "shall" identify a mandatory item or factor. "Manufacturer" means a company that, as its primary business function, designs, assembles, owns the trademark/patent and markets computer equipment including workstations, desktop computers, laptop (includes Tablet PC's) computers, handheld (PDA) devices, servers, printers, and storage solutions/auxiliary storage devices. The manufacturer must provide direct un- infringed unlimited USA OEM warranties on the products. The manufacturer's 3 of 35 name(s) shall appear on the computer equipment. The Contractor(s) shall provide the warranty service and maintenance for equipment on a Master Price Agreement as well as a Takeback Program. "Master Price Agreement" means the contract that MMD will approve that contains the foundation terms and conditions for the acquisition of the Contractor's products and/or services by Purchasing Entities. The "Master Price Agreement" is a permissive price agreement. In order for a Purchase Entity to participate in a Master Price Agreement, the appropriate state procurement official or other designated procurement official must be a Participating State or Participating Entity. "Materials Management Division" or "MMD" means the procurement official for the State of Minnesota or a designated representative. "NASPO" means the National Association of State Procurement Officials "Participating Addendum" or "Participating Addenda" means a bilateral agreement executed by the Contractor and a Participating State or political subdivision of a State that clarifies the operation of the price agreement for the State or political subdivision concerned, e.g. ordering procedures specific to a State or political subdivision and other specific language or other requirements. Terms and conditions contained in a Participating Addendum shall take precedence over the corresponding terms in the master price agreement. Additional terms and conditions, including but not limited to payment terms, may be added via the Participating Addendum. However, a Participating Addendum may not alter the scope of this Agreement or any other Participating Addendum. Unless otherwise specified, the Participating Addendum shall renew consecutively with the Master Price Agreement. One digitally formatted, executed copy of the Participating Addendum must be submitted to the WSCA/NASPO Contract Administrator PRIOR to any orders being processed: "Participating State" or "Participating Entity" means a member of NASPO (Participating State) or a political subdivision of a NASPO member (Participating Entity) who has indicated its intent to participate by signing an Intent to Participate, where required, or another state or political subdivision of another state authorized by the WSCA Directors to be a party to the resulting Master Price Agreement. "PDA" means a Personal Digital. Assistant and refers to a wide variety of handheld and palm -size PCs, and electronic organizers. PDA's usually can store phone numbers, appointments, and to-do lists. PDA's can have a small keyboard, and/or have only a special pen that is used for input and output. The PDA can also have a wireless fax modem. Files can be created on a PDA which is later entered into a larger computer. NOTE: For this procurement, all Tablet PC's are NOT considered PDA's. The Contractor(s) shall provide the warranty service and maintenance for equipment on a Master Price Agreement as well as a Takeback Program. "Peripherals" means any product that can be attached to, added within, or networked with personal computers or servers, including but not limited to storage, printers (including multifunction network printers), scanners, monitors, keyboards, projectors, uninterruptible power supplies and accessories. Software, 4of35 as defined in the RFP, is not considered a peripheral. Adaptive/Assistive technology devices are included as well as configurations for education. Peripherals may be manufactured by a third party, however, Contractor shall not offer any peripherals manufactured by another contractor holding a Master Price Agreement without the prior approval of the WSCA/NASPO Contract Administrator. AUDIO VISUAL PRODUCTS (digital cameras, televisions, whiteboards, etc.) are NOT included in the contract. The exception to this definition is whiteboards, which can be sold as part of the Instructional Bundles, but not as a stand-alone item. The Contractor(s) shall provide the warranty service and maintenance for equipment on a Master Price Agreement as well as a Takeback Program. "Permissive Price Agreement" means that placement of orders through the Price Agreement is discretionary with Purchasing Entities. They may satisfy their requirements through the Price Agreement without using statutory or regulatory procedures (e.g., invitations for bids) to solicit competitive bids or proposals. Purchasing Entities may, however, satisfy requirements without using the Price Agreement as long as applicable procurement statutes and rules are followed. "Per Transaction Multiple Unit Discount" means a contractual volume discount based on dollars in a single purchase order, or combination of purchase orders submitted at one time by a Purchasing Entity or multiple entities conducting a cooperative purchase. "Political Subdivision" means local pubic governmental subdivisions of a state, as defined by that state's statutes, including instrumentalities and institutions thereof. Political subdivisions include cities, counties, courts, public schools and institutions of higher education. "Price Agreement/Master Price Agreement" means an indefinite quantity contract that requires the Contractor to furnish products or services to a Purchasing Entity that issues a valid Purchase Order. "Procurement Manager" means the person or designee authorized by MMD to manage the relationships with WSCA, NASPO, and Participating States/Participating Entities: "Product(s)" means personal computer equipment, peripherals, LAN hardware, pre -loaded Software, and Network Storage devices, but not unrelated services. The Contractor(s) shall provide the warranty service and maintenance for equipment on a Master Price Agreement as well as a Takeback Program. "Products and Services Schedule Prices" or "PSS" refers to a complete list, grouped by major product and/or service categories, of the Products and services provided by the contractor that consists of an item number, item description and the Purchasing Entity's price for each Product or Service. All such Products and services shall be approved by the WSCA/NASPO Contract Administrator prior to being listed on a Contractor -supplied web site accessed via a URL. The Contractor(s) shall provide the warranty service and maintenance for all equipment listed on the PSS on a Master Price Agreement as well as a Takeback Program. "Purchase Order" means an electronic or paper document issued by the 5of35 Purchasing Entity that directs the Contractor to deliver Products or Services pursuant to a Price Agreement. "Purchasing Entity" means a Participating State or another legal entity, such as a political subdivision, properly authorized by a Participating State to enter into a contract for the purchase of goods described in this solicitation. Unless otherwise limited by statute, in this solicitation or in a Participating Addendum, political subdivisions of Participating States are Purchasing Entities and authorized to purchase the goods and/or services described in this solicitation. "Refurbished Products" are products that may have been powered on or used by another customer that have been fully retested, defective parts replaced, and repackaged to meet original factory specifications. "Services" are broadly classed as installation/de-installation, maintenance, support, training, migration, and optimization of products offered or supplied under the Master Price Agreement. These types of services may include, but are not limited to: warranty services, maintenance, installation, de -installation, factory integration (software or equipment components), asset management, recycling/disposal, training and certification, pre -implementation design, disaster recovery planning and support, service desk/helpdesk, and any other directly related technical support service required for the effective operation of a product offered or supplied. General consulting and all forms of application development and programming services are excluded. "Servicing Subcontractor/SubcontractorlReseller Agent" means a Contractor authorized and state -approved subcontractor who may provide local marketing support or other authorized services on behalf of the Contractor in accordance with the terms and conditions of the Contractor's Master Price Agreement. A wholly owned subsidiary or other company providing warranty or other technical support services qualifies as a Servicing Subcontractor. Local business partners may qualify as Servicing Subcontractors. Servicing Subcontractors may not directly accept Purchase Orders or payments for Products or Services from Purchasing Entities, unless otherwise provided for in a Participating Addendum. Servicing Subcontractors shall be named individually or by class in the Participating Addendum. The Contractor(s) actually holding the Master Price Agreementshallbe responsible for Servicing Subcontractor's providing products and services, as well as warranty service and maintenance for equipment the subcontractor has provided on a Master Price Agreement as well as the Takeback Program. "Standard Configurations" or "Premium Savings Configurations" means deeply discounted standard configurations that are available to Purchasing Entities using the Master Price Agreement only. Any entity, at any time, that commits to purchasing the standard configuration adopted by other Purchasing Entities shall receive the same price from the contract awardees. This specification includes a commitment to maintain and upgrade (keep pace with the advance of technology) the standard configurations for a stated period of time or intervals. "State Procurement Official" means the director of the central purchasing authority of a state. 6 of 35 "Storage Solution/Auxiliary Storage" means the technology and equipment used for storage of large amounts of data or information. This includes technologies such as: Network Attached Storage (NAS) and Storage Area Networks (SAN). The Contractor(s) shall provide the warranty service and maintenance for equipment on a Master Price Agreement as well as a Takeback Program_ "Takeback Program" means the Contractor's process for accepting the return of the equipment or other products at the end of life —as determined by the State utilizing the Master Price Agreement. "Trade In" refers to the exchange of used Equipment for new Equipment at a price reduced by the value of the used Equipment. "Travel" means expenses incurred by authorized personnel directly related to the performance of a Service. All such expenses shall be documented in a firm quotation for the Purchasing Entity prior to the issuance and acceptance of a Purchase Order. Travel expenses will be reimbursed in accordance with the purchasing entities allowances, if any, as outlined in the PA_ "Universal Resource Locator" or "URL" means a standardized addressing scheme for accessing hypertext documents and other services using the VWWV browser. "WSCA" means the Western States Contracting Alliance, a cooperative group contracting consortium for state procurement officials, representing departments, institutions, agencies, and political subdivisions (Le., colleges, school districts, counties, cities, etc.) for the states of Alaska, Arizona, Califomia, Colorado, Hawaii, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South Dakota, Utah, Washington, and Wyoming. "WSCA/NASPO Contract Administrator" means the person or designee authorized by MMD to manage all actions related to the Master Price Agreements on behalf of the State of Minnesota, the participating NASPO and WSCA members, and other authorized purchasers. 2. Scope of Work The Contractor, or its approved subcontractor, shall deliver computing system Products and services to Purchasing Entities in accordance with the terms of this agreement. This Agreement is a "Master Price Agreement". Accordingly, the Contractor shall provide Products or Services only upon the issuance and acceptance by Contractor of valid "Purchase Orders". Purchase Orders may be issued to purchase the license for software or to purchase products listed on the Contractor's PSS. A Purchasing Entity may purchase any quantity of Product or Service listed in the Contractor's PSS at the prices in accordance the Paragraph 13, Price Guarantees. Subcontractor participation is governed by the individual Participating State procurement official. The Contractor is required to provide and/or agree to take legal responsibility for the warranty and maintenance of all proposed equipment, including peripherals. Taking legal responsibility means the Contractor must provide warranty and maintenance call numbers, accept, process and respond to those calls, and be legally liable for and pay for those warranty and maintenance (under warranty) activities The Contractor shall offer a Takeback Program for all products covered by this Agreement. 7 of 35 3. Title Passage The Contractor must pass unencumbered title to any and all products purchased under this Contract upon receipt of payment by the State. This obligation on the part of the Contractor to transfer all ownership rights does not apply to proprietary materials owned or licensed by the Contractor or its subsidiaries, subcontractors or licensor, or to commercial software that is available to the State on the open market. Ownership rights to such materials shall not be affected in any manner by this Agreement. 4. Permissive Price Agreement and Quantity Guarantee This Agreement is not an exclusive agreement. Purchasing Entities may obtain computing system Products and services from other sources during the agreement term. The State of Minnesota, NASPO and WSCA make no express or implied warranties whatsoever that any particular number of Purchase Orders will be issued or that any particular quantity or dollar amount of Products or Services will be procured. 5. Order of Precedence Each Purchase Order that is accepted by the Contractor shall become a part of the Agreement as to the Products and services listed on the Purchase Order only; no additional terms or conditions will be added to this Agreement as the result of acceptance of a Purchase Order. The Contractor agrees to accept all valid Purchase Orders. In the event of any conflict among these documents, the following order of precedence shall apply: A. Executed Participating Addendum(s); B. Terms and conditions of this Agreement; C. Exhibits and amendments to this Agreement; D. The list of products and services contained in the purchase order; E. The request for proposals document; and F. Contractor's proposal including best and final offer. 6. Payment Provisions All payments under this Agreement are subject to the following provisions: A. Acceptance A Purchasing Entity shall determine whether all Products and services delivered meet the Contractor's published specifications. No payment shall be made for any Products or Services until the Purchasing Entity has accepted the Products or Services. The Purchasing Entity will make every effort to notify the Contractor within 30 days following delivery of non- acceptance of a product or service. All Products and Services shall be deemed accepted by the Purchasing Entity at thirty (30) days following delivery should the Purchasing Entity not notify the Contractor within that time period of either acceptance or non -acceptance of said Products and Services. B. Payment of Invoice Payments shall be submitted to the Contractor at the address shown on 8 of 35 the invoice, as long as the Contractor has exercised due diligence in notifying the State of Minnesota and/or the Purchasing Entity of any changes to that address. Minn. Stat. § 16A.124 requires payment within 30 days following receipt of an undisputed invoice, merchandise or service, whichever is later. The ordering entity is not required to pay the Contractor for any goods and/or services provided without a written purchase order or other approved ordering document from the appropriate purchasing entity. In addition, all goods and/or services provided must meet all terms, conditions, and specifications of the Contract and other ordering document and be accepted as satisfactory by the ordering entity before payment will be issued. Payments may be made via a Purchasing Entity's "Purchasing Card". In the event an order is shipped incomplete (partial), the Purchasing Entity shall pay for each shipment as invoiced by the Contractor unless the Purchasing Entity has clearly specified "No Partial Shipments" on each Purchase Order. C. Payment of Taxes Payment of taxes for any money received under this agreement shall be the Contractor's sole responsibility and shall be reported under the Contractor's federal and state tax identification numbers. If a Purchasing Entity is not exempt from sales, gross receipts, or local option taxes for the transaction, the Contractor shall be reimbursed by the Purchasing Entity to the extent of any tax liability assessed. The State of Minnesota State agencies are subject to paying Minnesota sales and use taxes. Taxes for State agencies will be paid directly to the Department of Revenue using Direct Pay Permit #1114. D. Invoices Invoices shall be submitted to the Purchasing Entity at the address shown on the Purchase Order. Invoices shall match the line items on the Purchase Order. 7. Agreement Term Pursuant to Minnesota law, the term of this Agreement shall be effective upon the date of final execution by the State of Minnesota, through August 31, 2012. The Agreement may be mutually renewed for two (2) additional one-year terms, or one additional two- year term, unless terminated pursuant to the terms of this Agreement. 8. Termination The following provisions are applicable in the event that the agreement is terminated. A. Termination for Convenience At any time, the State may terminate this agreement, in whole or in part, by giving the Contractor (30) days written notice; provided, however, neither the State nor a Purchasing Entity has the right to terminate a specific purchase order for convenience after it has been issued if the product is ultimately accepted. At any time, the Contractor may terminate this Agreement, in whole or in part, by giving the WSCA/NASPO Contract 9of35 Administrator sixty (60) days written notice. Such termination shall not relieve the Contractor of warranty or other Service obligations incurred under the terms of this Agreement. In the event of a cancellation, the Contractor shall be entitled to payment, determined on a pro rata basis, for work or services satisfactorily performed and accepted. B. Termination for Cause Either party may terminate this Agreement for cause based upon material breach of this Agreement by the other party, provided that the non - breaching party shall give the breaching party written notice specifying the breach and shall afford the breaching party a reasonable opportunity to correct the breach. If within thirty (30) days after receipt of a written notice the breaching party has not corrected the breach or, in the case of a breach that cannot be corrected in thirty (30) days, begun and proceeded in good faith to correct the breach, the non -breaching party may declare the breaching party in default and terminate the Agreement effective immediately. The non -breaching party shall retain any and all other remedies available to it under the law. C. A Purchasing Entity's Rights In the event this Agreement expires or is terminated for any reason, a Purchasing Entity shall retain its rights in all Products and services accepted prior to the effective termination date. D. The Contractor's Rights In the event this Agreement expires or is terminated for any reason, a Purchasing Entity shall pay the Contractor all amounts due for Products and services ordered and accepted prior to the effective termination date or ordered before the effective termination date and ultimately accepted. 9. Non -Appropriation The terms of this Agreement and any purchase order issued for multiple years under this Agreement is contingent upon sufficient appropriations being made by the Legislature or other appropriate governing entity. Notwithstanding any language to the contrary in this Agreement or in any purchase order or other document, a Purchasing Entity may terminate its obligations under this Agreement, if sufficient appropriations are not made by the governing entity at a level sufficient to allow for payment of the goods or services due for multiple year agreements, or if operations of the paying entity are being discontinued. The Purchasing Entity's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final and binding. A Purchasing Entity shall provide sixty (60) days notice, if possible, of its intent to terminate for reason cited above. Such termination shall relieve the Purchasing Entity, its officers and employees from any responsibility or liability for the payment of any further amounts under the relevant Purchase Order. 10. Shipment and Risk of Loss A. All deliveries shall be F.O.B. destination, prepaid and allowed, with all transportation and handling charges included in the price of the product and paid 10of35 by the Contractor. Responsibility and liability for Toss or damage shall remain with the Contractor until final inspection and acceptance when responsibility shall pass to the Purchasing Entity except as to fully -litigated latent defects, fraud and Contractor's warranty obligations. B. Whenever a Purchasing Entity does not accept Products and returns them to the Contractor, all related documentation fumished by the Contractor shall be returned also. Unless otherwise agreed upon by the Purchasing Entity, the Contractor is responsible for the pick-up of returned Products. The Contractor shall bear all risk of loss or damage with respect to returned Products except for loss or damage directly attributable to the negligence of the Purchasing Entity. C. Unless otherwise arranged between the Purchasing Entity and Contractor, all Products shall be shipped within 15 to 25 days after receipt of a purchase order, by a reliable and insured shipping company. 11. Warranties A. The Contractor agrees to warrant and assume responsibility for each Product that it licenses, or sells, to the Purchasing Entity under this Agreement. The Contractor agrees to take legal responsibility for the warranty and maintenance of all products furnished through this Agreement. Taking legal responsibility means the Contractor must provide warranty and maintenance call numbers, accept, process, and respond to those calls, and be legally liable for and pay for those warranty and maintenance (under warranty) activities. The Contractor acknowledges that the Uniform Commercial Code applies to this Agreement. In general, the Contractor warrants that: 1. The Product conforms to the specific technical information about the Contractor's products which is published in the Contractor's product manuals or data sheets. 2. The product will meet mandatory specifications provided in writing to the Contractor prior to reliance by the Participating Entity on the Contractor's skill or judgment when it advised the Purchasing Entity about the Product's ability to meet those mandatory specifications. 3. The Product will be suitable for the ordinary purposes for which such Product is used, 4. The Product has been properly designed and manufactured for its intended use, 5. The Product is free of significant defects in material and workmanship, or unusual problems about which the Purchasing Entity has not been warned, and 6. The Product is in the legal possession of the Purchasing Entity, as defined in Article 10 Shipment and Risk of Loss, before any warranty period begins. 7 Exhibit A contains additional warranties in effect as of the date of this Agreement. The warranties will be limited in duration to the time period(s) provided in Exhibit A. The warranties will not apply to use of a Product other than as anticipated and intended by the Contractor, to a problem 11 of 35 arising after changes or modifications to the Products or operating system by any party other than the Contractor (unless expressly authorized in writing by the Contractor), or the use of a Product in conjunction or combination with other products or software not authorized by the Contractor. The following is a list of the warranties attached as Exhibit A: a) Hardware Products Warranty b) Software Products Warranty c) Hardware and Software Extended Warranties B. Contractor may modify the warranties described in Exhibit A from time to time with the prior approval of the WSCA/NASPO Contract Administrator. C. Warranty documents for Products manufactured by a third party shall be delivered to the Purchasing Entity with the Products. D. The basic warranty shall be three year, next business day, as stated in Appendix B of the RFP, for all products included in the Bands listed in Article 14 Products and Services Schedule. 12. Patent, Copyright, Trademark and Trade Secret Indemnification A. The Contractor shall defend, at its own expense, the State of Minnesota, Participating and Purchasing Entities and their agencies against any claim that any Product or Service provided under this Agreement infringes any patent, copyright or trademark in the United States or Puerto Rico, and shall pay all costs, damages and attorneys' fees that a court finally awards as a result of any such claim. In addition, if any third party obtains a judgment against a Purchasing Entity based upon the Contractor's trade secret infringement relating to any Product or Service provided under this Agreement, the Contractor agrees to reimburse the Lead State for all costs, attorneys' fees and the amount of the judgment. To qualify for such defense and/or payment, the Lead State or Participating or Purchasing Entity shall: 1. Give the Contractor prompt written notice of any claim; 2. Allow the Contractor to control the defense or settlement of the claim; and 3. Cooperate with the Contractor in a reasonable way to facilitate the defense or settlement of the claim. B. If any Products or Service becomes, or in the Contractor's opinion is likely to become the subject of a claim of infringement, the Contractor shall at its option and expense: 1. Provide a Purchasing Entity the right to continue using the Products or Services; 2. Replace or modify the Products or Services so that it becomes non - infringing; or 3. Accept the return of the Products or Service and refund an amount equal to the depreciated value of the returned Products or Service, 12 of 35 Tess the unpaid portion of the purchase price and any other amounts, which are due to the contractor. The Contractor's obligation will be void as to any Products or Services modified by the Purchasing Entity to the extent such modification is the cause of the claim. C. The Contractor has no obligation for any claim of infringement arising from: 1. The Contractor's compliance with the Purchasing Entity's or by a third party on the Purchasing Entity's behalf designs, specifications, or instructions; 2. The Contractor's use of technical information or technology provided by the Purchasing Entity; 3. Product modifications by the Purchasing Entity or a third party; 4. Product use prohibited by Specifications or related application notes; or 5. Product use with products that are not the Contractor branded. 13. Price Guarantees The Purchasing Entities shall pay the lower of the prices contained in the PSS or an Announced Promotion Price, Educational Discount Price, General Price Reduction price, Trade -In price, Standard Configuration price or Per Transaction Multiple Unit Discount. Only General Price Reduction price decreases will apply to all subsequent Purchase Orders accepted by Contractor after the date of the issuance of the General Price Reduction prices. The initial base -line, Cumulative, and Per Transaction Multiple Unit Discounts shall be submitted by the Contractor in a format agreeable to both parties prior to signing the Agreement. Once a cumulative volume has been reached, the increased price discount will apply to all future orders, until the next level of cumulative volume is reached. 14. Product and Service Schedule The Contractor agrees to maintain the PSS in accordance with the following provisions: A. The PSS prices for Products and services will conform to the guaranteed prices discount levels on file with WSCA/NASPO Contract Administrator for the following Products: Band 4 — Storage Solutions Operating Systems Local Area Network Devices B. The Contractor may change the price of any Product or Service at any time, based upon documented baseline price changes, but the guaranteed price discount levels shall remain unchanged during the agreed period unless or until prior approval is obtained from the WSCA/NASPO Contract Administrator. The Contractor agrees that the PSS on the State's 13of35 administration website shall contain a single, uniform WSCA price for configurations and items. Failure to comply with this requirement will be grounds for further action to be taken against the Contractor. C. The Contractor may make model changes; add new Products, and Product upgrades or Services to the PSS in accordance with Item 15. Product Substitutions, below. The pricing for these changes shall incorporate, to the extent possible, comparable price discount levels approved by the WSCA/NASPO Contract Administrator for similar Products or Services. D. The Contractor agrees to delete obsolete and discontinued Products from the PSS on a timely basis. E. The Contractor shall maintain the PSS on a Contractor supplied Internet web site. 15. Product Substitutions A. Substitution of units/configurations MMD and the WSCA Directors acknowledge that individual units and configurations may stop being produced duringthe life of the resulting contracts. Substitution of different units and configurations will be permitted with the prior written approval of the WSCA/NASPO Contract Administrator. This substitution is at the sole discretion of the WSCA/NASPO Contract Administrator, subject only to review and approval of the WSCA/NASPO Contract Administrator. B. Addition of units/configurations MMD and the WSCA Directors acknowledge that with the evolution of technology, new, emerging units and configurations will develop. Addition of these new, emerging units may be permitted, with the prior approval of the WSCA/NASPO Contract Administrator and the WSCA Directors. The addition of new, emerging units and configurations is at the sole discretion of the WSCA/NASPO Contract Administrator, subject only to review and approval of the WSCA Directors. 16. Technical Support The Contractor agrees to maintain a toll -free technical support telephone line. The line shalt be accessible to Purchasing Entity personnel who wish to obtain competent technical assistance regarding the installation or operation of Products supplied by the Contractor during a product warranty period or during a support agreement. 17. Takeback and Other Environmental Programs The Contractor agrees to maintain for the term of this Agreement, and all renewals/extensions thereof, programs as described in the following paragraphs. A. TakebacklRecycling of CPUs, servers, monitors, flat panel displays, notebook computers, and printers. Costs are list on the web site. B. Environment: Compliance with the following standards as applicable: Blue Angel, EcoLogo, Energy Star, EPEAT (by level), Green Guard, Nordic Swan, and 14 of 35 TCO. C. Product labeling of compliance with Items B & C above, as well as a identification of such information on the web site. 18. Product Delivery Contractor agrees to deliver Products to Purchasing Entities within (30) days after receipt of a valid Purchase Order, or in accordance with the schedule in the Purchasing Entity's Purchase Order. 19. Force Majeure Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that performance of any such obligations is prevented or delayed by acts of God, war, riot or other catastrophes beyond the reasonable control of the party unless the act or occurrence could have been reasonably foreseen and reasonable action could have been taken to prevent the delay or failure to perform. A party defaulting under this provision must provide the other party prompt written notice of the default and take all necessary steps to bring about performance as soon as practicable. 20. Records and Audit Per Minn. Stat. § 16C.05, Subd. 5, the books, records, documents, and accounting procedures and practices of the Contractor and its employees, agents, or subcontractors relevant to the Contract or transaction must be made available and subject to examination by the contracting agency or its agents, the Legislative Audit and/or the State Auditor for a minimum of six years after the end of the Contract or transaction. Unless otherwise required by other than Minnesota Purchasing Entity governing law, such records relevant to other Purchasing Entity transactions shall be subject to examination by appropriate government authorities for a period of three years from the date of acceptance of the Purchase Order. 21. Independent Contractor The Contractor and its agents and employees are independent contractors and are not employees of the State of Minnesota or of any participating entity. The Contractor has no authorization, express or implied to bind the Lead State, NASPO, WSCA or any participating entity to any agreements, settlements, liability or understanding whatsoever, and agrees not to perform any acts as agent for the Lead State, NASPO, WSCA, or participating entity, except as expressly set forth herein. The Contractor and its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits afforded to employees of the Lead State or Participating Entity as a result of this Agreement. 22. Use of Servicing Subcontractors The Contractor may subcontract services and purchase order fulfillment and/or support in accordance with the following paragraphs. However, the Contractor shall remain solely responsible for the performance of this Agreement. A. Reseller Agent, Service Provider or Servicing Subcontractors shall be 15of35 identified individually or by class in the applicable Participating Addendum, or as noted in the Participating Addendum on the Purchasing Entities extranet site. The ordering and payment process for Products or Services shall be defined in the Participating Addendum. 23. Payments to Subcontractors In the event the Contractor hires subcontractors to perform all or some of the duties of this Contract, the Contractor understands that in accordance with Minn. Stat. § 16A.1245 the Contractor shall, within ten (10) days of the Contractor's receipt of payment from the State, pay all subcontractors and suppliers having an interest .in the Contract their share of the payment for undisputed services provided by the subcontractors or suppliers. The Contractor is required to pay interest of 1-1/2 percent per month or any part of a month to the subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum monthly interest penalty payment for an unpaid, undisputed balance of $100 or more will be $10. For an unpaid balance of Tess than $100, the amount will be the actual penalty due. A subcontract that takes civil action against the Contractor to collect interest penalties and prevails will be entitled to its costs and disbursements, including attorney's fees that were incurred in bringing the action. The Contractor agrees to take all steps necessary to comply with said statute. A consultant is a subcontractor under this Contract. In the event the Contractor fails to make timely payments to a subcontractor, the State may, at its sole option and discretion, pay a subcontractor or supplier any amounts due from the Contractor and deduct said payment from any remaining amounts due the Contractor. Before any such payment is made to a subcontractor or supplier, the State shall provide the Contractor written notice that payment will be made directly to a subcontractor or supplier. If there are not remaining outstanding payments to the Contractor, the State shall have no obligation to pay or to see to the payment of money to a subcontractor except as may otherwise be required by law. The Contractor shall ensure that the subcontractor transfers all intellectual or industrial property rights, including but not limited to any copyright it may have in the work performed under this Contract, consistent with the intellectual property rights and ownership sections of this Contract. In the event the Contractor does not obtain the intellectual property rights of the subcontractor consistent with the transfer of rights under this Contract, the State may acquire such rights directly from the subcontractor. Any and all costs associated with such a direct transfer may be deducted from any amount due the Contractor. 24. Indemnification, Hold Harmless and Limitation of Liability The Contractor shall indemnify, protect, save and hold harmless the Lead State, Participating Entities, and its representatives and employees, from any and all claims or causes of action, including all legal fees incurred by the State arising from the performance of the Contract by the Contractor or its agents, employees, or subcontractors. This clause shall not be construed to bar any legal remedies the Contractor may have with the State's or Participating Entities' failure to fulfill its obligations pursuant to the Contract. The State agrees that the Contractor, its principals, members and employees 16of35 shall not be liable to the State for any actions, damages, claims, liabilities, costs, expenses, or losses in any arising out of or relating to the goods provided or services performed hereunder for an aggregate amount in excess of $10,000,000. This limitation of liability does not apply to damages for personal injury or death, or to Contractor's obligation to indemnify, defend and hold the State harmless against intellection property infringement or copyright claims under paragraph 12 of this Agreement. This indemnification does not include liabilities cause by the State's gross negligence, or intentional wrong doing of the State. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) SHALL CONTRACTOR BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR LOST OR CORRUPTED DATA ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF ITS PRODUCTS. 26. Amendments Contract amendments shall be negotiated by the State with the Contractor whenever necessary to address changes in the terms and conditions, costs, timetable, or increased or decreased scope of work. This Agreement shall be amended only by written instrument executed by the parties. An approved Contract amendment means one approved by the authorized signatories of the Contractor and the State as required by law. 26. Scope of Agreement This Agreement incorporates all of the agreements of the parties concerning the subject matter of this Agreement. No prior agreements, verbal or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. 27. Severability If any provision of this Contract, including items incorporated by reference, is found to be illegal, unenforceable, or void, by a court of competent jurisdiction then both the State and the Contractor shall be relieved of all obligations arising under such provision. If the remainder of this Contract iscapable of performance, it shall not be affected by such declaration or finding and shall be fully performed. 28. Enforcement of Agreement!Waivers A. No covenant, condition, duty, obligation, or undertaking contained in or made a part of this Contract shall be waived except by the written consent of the parties. Forbearance or indulgence in any form or manner by either party in any regard whatsoever shall not constitute a waiver of the covenant, condition, duty, obligation, or undertaking to be kept, performed, or discharged by the other party. Until complete performance or satisfaction of all such covenants, conditions, duties, obligations, and undertakings, the other party shall have the right to invoke any remedy available under law or equity, notwithstanding any such forbearance or 17 of 35 indulgence. B. Waiver of any breach of any provision of this Contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this Contract shall be held to be waived, modified, or deleted except by an instrument, in writing, signed by the parties hereto. C. Neither party's failure to exercise any of its rights under this Contract will constitute or be deemed a waiver or forfeiture of those rights. 29. Web Site Maintenance A. The Contractor agrees to maintain and support an Internet website linked to the State's administration website for access to the PSS, service selection assistance, problem resolution assistance, billing concerns, configuration assistance, Product descriptions, Product specifications and other aids described in the RFP, and/or in accordance with instructions provided by the WSCA/NASPO Contract Administrator. The Contractor agrees that the approved PSS on the State's administration website shall contain a single, uniform WSCA price for configurations and items. Failure to comply with this requirement will be grounds for further action to be taken against the Contractor. B. The Contractor agrees to maintain and support Participating State and Entity Internet websites for access to the specific Participating Entity PSS, as well as all other items listed in Item 29A. above. The website shall have the ability to hold quotes for 45 days, as well as the ability to change the quote. C. The Contractor may provide electronic commerce assistance for the electronic submission of Purchase Orders, purchase order tracking and reports. D. Once the website is approved, the Contractor may not make changes to the website without notifying the WSCA/NASPO Contract Administrator and receiving written approval of the changes. 30. Equal Opportunity Compliance The Contractor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including federal laws and the laws of the state in which its primary place of business is located. In accordance with such laws, regulations, and executive orders, the Contractor agrees that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by the contractor under this Agreement. If the Contractor is found to be not in compliance with these requirements during the life of this Agreement, the Contractor agrees to take appropriate steps to correct these deficiencies. The Contractor certifies that it will remain in compliance with Minn. Stat. § 363.073 during the life of the Contract. 18 of 35 31. Governing Law This Agreement shall be governed and construed in accordance with the laws of the Lead State. The construction and effect of any Participating Addendum or order against this Agreement shall be governed by and construed in accordance with the laws of the Purchasing Entity's state. Venue for any claim, dispute or action conceming the construction and effect of the Agreement shall be in the Lead State. Venue for any claim, dispute or action concerning an order placed against this Agreement or the effect of a Participating Addendum or shall be in the Purchasing Entity's state. 32. Change in Contractor Representatives Contractor shall appoint a primary representative to work with the WSCA/NASPO Contract Administrator to maintain, support and market this Agreement. The Contractor shall notify the WSCA/NASPO Contract Administrator of changes in any Contractor key personnel, in writing, and in advance if possible. The State reserves the right to require a change in Contractor's then -current primary representative if the assigned representative is not, in the opinion of the State, adequately serving the needs of the Lead State and the Participating Entities. 33. Release The Contractor, upon final payment of the amount due under this Agreement, releases the Lead State and Participating Entities, its officers and employees, from all contractual liabilities, claims and obligations whatsoever arising from or under this Agreement. The Contractor agrees not to purport to bind the Lead State or any Participating Entity to any obligation, unless the Contractor has express written authority to do so, and then only within the strict limits of the authority. 34. Data Practices A. The Contractor and the State must comply with the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13 (and where applicable, if the state contracting party is part of the judicial branch, with the Rules of Public Access to Records of the Judicial. Branch promulgated by the Minnesota Supreme Court as the same may be amended from time to time) as it applies to all data provided by the State to the Contractor and all data provided to the State by the Contractor. In addition, the Minnesota Government Data Practices Act applies to all data created, collected, received, stored, used, maintained or disseminated by the Contractor in accordance with this Contract that is private, nonpublic, protected nonpublic, or confidential as defined by the Minnesota Government Data Practices Act, Ch. 13 (and where applicable, that is not accessible to the public under the Rules of Public Access to Records of the Judicial Branch). B In the event the Contractor receives a request to release the data referred to in this article, the. Contractor must immediately notify the State. The State will give the Contractor instructions concerning the release of the data to the requesting party before the data is released. The civil remedies of Minn. Stat. § 13.08, apply to the release of the data by either 19 of 35 the Contractor or the State. C. The Contractor agrees to indemnify, save, and hold the State of Minnesota, its agents and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation of any provision of the Minnesota Government Data Practices Act (and where applicable, the Rules of Public Access to Records of the Judicial Branch), including legal fees and disbursements paid or incurred to enforce this provision of the Contract. In the event that the Contractor subcontracts any or all of the work to be performed under the Contract, the Contractor shall retain responsibility under the terms of this paragraph for such work. 35. Organizational Conflicts of Interest A. The Contractor warrants that, to the best of its knowledge and belief, and except as otherwise disclosed, there are not relevant facts or circumstances which could give rise to organizational conflicts of interest. An organizational conflict of interest exists when, because of existing or planned activities or because of relationships with other persons: • a Contractor is unable or potentially unable to render impartial assistance or advice to the State; • the Contractor's objectivity in performing the work is or might be otherwise impaired; or • the Contractor has an unfair competitive advantage. B. The Contractor agrees that if an organizational conflict of interest is discovered after award, an immediate and full disclosure in writing shall be made to the Assistant Director of the Department of Administration's Materials Management Division that shall include a description of the action the Contractor has taken or proposes to take to avoid or mitigate such conflicts. If an organizational conflict of interest is determined to exist, the State may, at its discretion, cancel the Contract. In the event the Contractor was aware of an organizational conflict of interest prior to the award of the Contract and did not disclose the conflict to the WSCA/NASPO Contract Administrator, the State may terminate the Contract for default. The provisions of this clause shall be included in all subcontracts for work to be performed, and the terms "Contract," "Contractor," and "WSCA/NASPO Contract Administrator" modified appropriately to preserve the State's rights. 36. Replacement Parts Unless otherwise restricted in a Participating Addendum or maintenance service agreement, replacement parts may be manufacturer -certified refurbished parts carrying USA OEM warranties. 37. FCC Certification The Contractor agrees that Equipment supplied by the Contractor meets all applicable FCC Certifications. Improper, falsely claimed or expired FCC certifications are grounds for termination of this Agreement for cause. 20 of 35 38. Site Preparation A Purchasing Entity shall prepare and maintain its site in accordance with written instructions furnished by the Contractor prior to the scheduled delivery date of any Products and shall bear the costs associated with the site preparation. 39. Assignment The Contractor shall not sell, transfer, assign, or otherwise dispose of this Contract or any portion hereof or of any right, title, or interest herein without the prior written consent of the State's authorized agent. Such consent shall not be unreasonably withheld. The Contractor shall give written notice to the State's authorized agent of such a possibility at least 30 days prior to the sale, transfer, assignment, or other disposition of this Contract. Failure to do so may result in the Contractor being held in default. This consent requirement includes reassignment of this Contract due to a change in ownership, merger, or acquisition of the Contractor or its subsidiary or affiliated corporations. This section shall not be construed as prohibiting the Contractor's right to assign this Contract to corporations to provide some of the services hereunder. Notwithstanding the foregoing acknowledgment, the Contractor shall remain solely liable for all performance required and provided under the terms and conditions of this Contract. 40. WSCA/NASPO Contract Administrator The State shall appoint an WSCA/NASPO Contract Administrator whose duties shall include but not be limited to the following: A. The WSCA/NASPO Contract Administrator may provide instructions concerning the contents of the Contractor's website. B. The WSCA/NASPO Contract Administrator will facilitate dispute resolution between the Contractor and Purchasing Entities. Unresolved disputes shall be presented to the State for resolution. C_ The WSCA/NASPO Contract Administrator shall promote and support the use of this Agreement by NASPO members and other Participating Entities. D. The WSCA/NASPO Contract Administrator shall advise the State regarding the Contractor's performance under the terms and conditions of this Agreement. E. The WSCA/NASPO Contract Administrator shall receive and approve quarterly price agreement utilization reports and the administration fee payments. F. The WSCA/NASPO Contract Administrator shall periodically verify the Product and Service prices in the PSS conform to the Contractor's volume price and other guarantees. The WSCA/NASPO Contract Administrator may require the Contractor to perform web site audits to accomplish this task. G. The WSCA/NASPO Contract Administrator shall conduct annual Contractor performance reviews. 21 of 35 H. The WSCA/NASPO Contract Administrator shall maintain an Agreement administration website containing timely and accurate information. 41. Survival The following rights and duties of the State and Contractor will survive the expiration or cancellation of the resulting Contract. These rights and duties include, but are not limited to Paragraph 12. Patent, Copyright, Trademark and Trade Secret Indemnification; Paragraph 20. Records and Audit; Paragraph 24. Indemnification, Hold Harmless, and Limitation of Liability; Paragraph 31, Governing Law; Paragraph 34. Data Practices; and Paragraph 52. Right to Publish. 42. Succession This Agreement shall be entered into and be binding upon the successors and assigns of the parties. 43. Notification A. If one party is required to give notice to the other under the Contract, such notice shall be in writing and shall be effective upon receipt. Delivery may be by certified United States mail or by hand, in which case a signed receipt shall be obtained. A facsimile transmission shall constitute sufficient notice, provided the receipt of the transmission is confirmed by the receiving party. Either party must notify the other of a change in address for notification purposes. All notices shall be addressed as follows: To MMD: Department of Administration Materials Management Division Bernadette Kopischke, CPPB Acquisitions Supervisor 50 Sherburne Avenue 112 State Administration Building St. Paul, MN 55155 Fax: 651.297.3996 Email: bernie.kopischke@state.mn.us 44. Reporting and Fees A. Administration Reporting and Fees 1. The Contractor agrees to provide monthly utilization reports to the WSCA/NASPO PC Contracts Reporting person and the WSCA/NASPO Contract Administrator by the 15th of the rnonth following the end of the previous month. (Ex. Purchases during January are reported by the 15th of February; purchases made during February are reported by the 15th of March; etc.). The report shall be in the format developed by the Lead State and supplied to the Contractor. 22 of 35 2. The Contractor agrees to provide quarterly Administrative Fee check payable to WSCA/NASPO for an amount equal to one - twentieth of one percent (0.0005) of the net sales for the period. The form to be submitted with the check, as well as the mailing address, has been supplied to the Contractor. Payment shall be made in accordance with the following schedule: Period End June 30 September 30 December 31 March 31 Fee Due July 31 October 31 January 31 April 30 3. The Contractor agrees to include all Reseller Agent sales in the monthly utilization reports described above. In addition, the Contractor agrees to provide a supplemental Reseller Agent utilization report of the net sales for the period subtotaled by Purchasing Entity name, within Purchasing Entity state name by Reseller Agent Name. 4. The Contractor agrees to provide with the utilization report the environmental information shown in the report format provided; as well as a supplemental report of the number and type of units taken back in a format to be mutually agreed to. 5. The utilization reports shall be submitted to the WSCA/NASPO PC Contracts Reporting person and the WSCA/NASPO Contract Administrator via electronic mail in a Microsoft Excel spreadsheet format, or other methods such as direct access to Internet or other databases. 6. If requested by the WSCA/NASPO Contract Administrator, the Contractor agrees to provide supporting Purchase Order detail records on mutually agreed magnetic media in a mutually agreed format. Such request shall not exceed twelve per year. 7. The failure to file the utilization reports and fees on a timely basis shall constitute grounds for the removal of the Contractor's primary representative, suspension of this Agreement or termination of this Agreement for cause. 8. The WSCA/NASPO Contract Administrator shall be allowed access to all reports from all Purchasing Entities. B. Participating Entity Reports and Fees 1. Participating Entities may require an additional fee be paid directly to the State on purchases made by Purchasing Entities within that State. For all such requests, the fee level, payment method and schedule for such reports and payments shall be incorporated in to the Participating Addendum that is made a part of this Agreement. The Contractor may adjust PSS pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of that State. All 23 of 35 such agreements shall have no affect whatsoever on the WSCA fee or the prices paid by the Purchasing Entities outside the jurisdiction of the State requesting the additional fee. 2. Purchasing Entities will be encouraged to use the reporting. format developed by the lead State for their reporting needs. However, the Contractor agrees to provide additional reports to Purchasing Entities upon agreement by both parties as to the content and delivery methods of the report. Methods of delivery may include direct access to Internet or other databases. 3. Each State Purchasing Entity shall be allowed access to reports from all entities within that State. 45. Default and Remedies A. Any of the following shall constitute cause to declare this Agreement or any order under this Agreement in default: 1. Nonperformance of contractual requirements; or 2. A material breach of any term or condition of this Agreement. B. A written notice of default, and an opportunity to cure, shall be issued by the party claiming default, whether the Lead State (in the case of breach of the entire Agreement), a Participating Entity (in the case of a breach of the participating addendum), the Purchasing Entity (with respect to any order), or the Contractor. Time allowed for cure shall not diminish or eliminate any liability for liquidated or other damages. C. if the default remains after the opportunity for cure, the non -defaulting party may: 1. Exercise any remedy provided by law or equity; 2. Terminate the Agreement, a Participating Addendum, or any portion thereof, including any Purchase Orders issued against the Agreement; 3. Impose liquidated damages, as specified in a Participating Addendum; 4. In the case of default by the Contractor, and to the extent permitted by the law of the Participating State or Purchasing Entity, suspend Contractor from receiving future solicitations. 5. Charge the defaulting Contractor the full increase in cost and administrative handling to purchase the product or service from another Contractor. D. The MMD reserves the right, upon approval of the WSCA Directors, to develop and implement a step-by-step process to deal with Contractor failure to perform issues. 46. Audits A. Website Pricing Audit 24 of 35 The Contractor agrees to assist the WSCA/NASPO Contract Administrator or designee with web site Product and pricingaudits based on the requirements described in the Vendor Mandatory meeting presentation. Website pricing audits will be performed on a quarterly basis. 1. The product audit will closely monitor the products and services listed on the website to insure they comply with the approved products and services. The addition of products or services not approved by the WSCA/NASPO Contract Administrator will not be tolerated and may be considered a material breach of this Agreement. B. Sales Audit The Contractor further agrees to provide sales audit reports based on the formulas described in the Vendor Mandatory meeting presentation. These presentations were held the week of March 30-April 3, 2009. C. Upon request, the Contractor agrees to assist Participating Entities with invoice audits to ensure that the Contractor is complying with this Agreement in accordance with mutually agreed procedures set forth in the Participating Addendum. 47. Extensions If specifically authorized by provision in a Participating Addendum, Contractor may, at the sole discretion of Contractor and in compliance with the laws of the Participating State, offer Products and services to non-profit organizations, private schools, Native American governmental entities, government employees and students within the governmental jurisdiction of the entity completing the Participating Addendum with the understanding that the governmental entity has no liability whatsoever conceming payment for products or services. 48. Sovereign Immunity The State does not waive its sovereign immunity by entering into this Contract and fully retains all immunities and defenses provided by law with regard to any action based on this Contract. 49. Ownership A. Ownership of Documents/Copyright. Any reports, studies, photographs, negatives, databases, computer programs, or other documents, whether in tangible or electronic forms, prepared by the Contractor in the performance of its obligations under the Contract and paid for by the State shall be the exclusive property of the State and all such material shall be remitted to the State by the Contractor upon completion, termination or cancellation of the Contract. The Contractor shall not use, willingly allow or cause to allow such material to be used for any purpose other than performance of the Contractor's obligations under the Contract without the prior written consent of the State. Any reports, studies, photographs, negatives, databases, computer programs, or other documents so prepared by the Contractor for the State shall first be subject to written agreement between the State and the 25 of 35 Contractor detailing the tangible items to be delivered, the delivery schedule, and Third Parties involved in the effort, specific intellectual property to be developed (if any) and the terms and conditions of said intellectual property development and/or document delivery. Contractor asserts that it is a provider of commercial -off-the-shelf (COTS) Products and Services developed entirely at private expense, is not in the ordinary business of producing works for hire, and will provide intellectual property for sale or license to the State only under exceptional conditions supported by detailed documentation. 50. Prohibition Against Gratuities A. The State may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this Contract if it is found by the State that gratuities in the form of entertainment, gifts, or otherwise were offered or given by the Contractor or any employee, agent, or representative of the Contractor to any officer or employee of the State with a view toward securing this Contract, or securing favorable treatment with respect to the award or amendment of this Contract, or the making of any determinations with respect to the performance of this Contract. B. The Contractor certifies that no elected or appointed official or employee of the State has benefited or will benefit financially or materially from this Contract. This Contract may be terminated by the State if it is determined that gratuities of any kind were either offered to or received by any of the aforementioned individuals from the Contractor, its agent, or its employees. 51. Antitrust The Contractor hereby assigns to the State any and all claims for overcharges as to goods and/or services provided in connection with this Contract resulting from antitrust violations which arise under antitrust laws of the United States and the antitrust laws of the State. 52. Right to Publish A. Any publicity given to the program, publications or services provided resulting from the Contract, including but not limited to notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Contractor, or its employees individually or jointly with others, or any subcontractors or resellers shall identify the State as the sponsoring agency and shall not be released, unless such release is a specific part of an approved work plan included in the Contract prior to its approval by the WSCA/NASPO Contract Administrator. B. The Contractor shall not make any representations of the State's opinion or position as to the quality or effectiveness of the products and/or services that are the subject of this Contract without the prior written consent of the WSCA/NASPO Contract Administrator. Representations include any publicity, including but not limited to advertisements, notices, press releases, reports, signs, and similar public notices. 26 of 35 53. Performance While Dispute is Pending Notwithstanding the existence of a dispute, the parties shall continue without delay to carry out all of their responsibilities under this Contract that are not affected by the dispute. If a party fails to continue without delay to perform its responsibilities under this Contract, in the accomplishment of all undisputed work, any additional cost incurred by the other parties as a result of such failure to proceed shall be borne by the responsible party. 54. Hazardous Substances To the extent that the goods to be supplied to the Purchasing Entity by the Contractor contain or may create hazardous substances, harmful physical agents as set forth in applicable State and federal laws and regulations, the Contractor must provide the Purchasing Entity, upon request, with Material Safety Data Sheets regarding those substances (including mercury). 55. Customer Satisfaction/Complaint Resolution A. The Contractor's process for resolving complaints concerning products, support, and billing problems is attached as Exhibit B. B. The Contractor will survey its customers in each Participating State approximately two (2) months prior to the annual meeting with the Contract Administrator using, at a minimum, the survey questions provided by the State. 56. Value Added Services The Contractor is expected to provide such services as installation, training, and software imaging upon request of the Purchasing Entity. Additional Value Added Services offered by the Contractor are attached as Exhibit C. 57. E-Rate Program The Contractor's E-Rate identification number if: 143021227; qualifying products are as follows: network storage products. The Contractor shall make every effort to continue its involvement in this program and to add products as applicable. 27 of 35 IN WITNESS WHEREOF, the parties have executed this agreement as of the date of execution by the State of Minnesota Commissioner of Administration, below. 1. NETAPP INC. The Contractor certifies that the appropriate person(s) have executed Ibis Agreement on behalf of the Contractor as required by applicable articles, bylaws, resolutions, or ordinances. By: Title: Ne + • Inc. Vice -President Date: June 22, 2009 By: Title: Date: 2. MATERIALS MANAGEMENT DIVISION In accordance with Minn. Stat. § 16C.03, Subd. 3. By: Title: Acquisitions Supervisor Date: GIa3/0l 3. COMMISSIONER OF ADMINISTRATION Or delegated representative. /f Origdnal signed JUN z 2009 By Brenda Willard By: Date: 28of35 EXHIBIT A — ADDITIONAL WARRANTIES A. Hardware Products Warranty. Hardware Products shall have a warranty of three (3) years, unless otherwise noted in specific Product documentation. All warranties begin on the date that NetApp ships the hardware Product to Customer. NetApp warrants that each hardware Product sold by NetApp will operate in accordance with NetApp's published specifications and accompanying documentation for the hardware Product on the date it is shipped, or NetApp will repair or replace the hardware Product, or refund the purchase price at NetApp's sole discretion. Hardware Products may contain some refurbished parts warranted as new. Replacement parts shall be warranted for the remainder of the warranty period in effect on the original hardware Product, unless otherwise mandated by local law. B. Software Products Warranty. For a period of ninety (90) days from the date that NetApp delivers the software Product to Customer, NetApp warrants that (a) the software Product will materially conform to NetApp's then -current documentation and specifications, as may be published by NetApp, for such software Product; and (b) that the media containing the software Product is free from physical defects. C. Hardware and Software Extended Warranties. NetApp offers Customers the ability to purchase an extended warranty, as well as hardware and software support offerings for a term of up to sixty (60) months after a product has reached End of Availability (EOA). Detailed information regarding NetApp extended warranty through support offerings can be located in Exhibit C of this Agreement. 29 of 35 EXHIBIT B — COMPLAINT RESOLUTION Any customer problems and complaints not related to services, hardware and software are initially routed to the Participating States or Entity's NetApp Sales Representative or NetApp Reseller from which the NetApp equipment was purchased. For problems with billing, the Sales Representative or Reseller should be the first line of contact. Any inconsistencies in billing will be initially routed to the NetApp Field Administrator that in turn is then escalated to NetApp's Account Receivable Department located in Sunnyvale, California. All customer problems and complaints associated with services, equipment and software are handled by NetApp Global Services. NetApp has a breadth of offerings that address hardware support referred to as SupportEdge. Software support is provided through a program called Software Subscription Plan. Proactive NetApp SupportEdge services leverage innovative NetApp technology to detect, diagnose, respond to, and resolve problems, often before the customer even knows they have occurred. This level of support provides reliable performance and constant data availability. NetApp offers three distinct SupportEdge services, which can be tailored to meet your unique requirements: ■ SupportEdge Premium. Comprehensive support for enterprise and mission -critical applications where on -site support is essential to business success. • SupportEdge Secure for Government. A version of SupportEdge Premium that includes security -cleared representatives and management of data. This offering addresses the security demands of worldwide classified and sensitive but unclassified (SBU) government customers. • SupportEdge Standard. Basic support package for noncritical systems on which the customer performs their own hands-on support. Problem Escalation Policy NetApp has an established methodology for case management. Cases can be initiated automatically by our systems installed at customer sites via our AutoSupport technology, or can be generated by our customers, third parties or other NetApp employees: All cases are assigned case owners based in our Technical Support Center (TSC). Cases are also assigned priorities to establish an overall response time and the resolution process for the case. NetApp uses the following guidelines for establishing case priorities. However the customer can request an increase in priority at any time through the TSC hotline. Definitions of Priorities Priority 1 (P1) NetApp node, system or cluster is down, unable to serve data, is in a state of frequent or repeating "Panic" or "Hang", or is in a state of degraded performance sufficient to prevent normal business operations. At this Priority, both NetApp and the Customer must commit to around -the -clock action and involvement by all necessary and appropriate personnel and systems until a mutually agreeable workaround is provided and normal business operations are restored. 30 of 35 Priority 1 Notification Matrix Elapsed Time Who's notified: NetApp 114314:9 TSC Duty Manager TSC Group Manager TSC Duty Manager Ala TSC Group Manager 'r! TSC Duty Manager TSC Regional Director rT TSC Group Manager "s TSC Duty Manager TSC Regional Director TSC Site VP Sr. VP, Global Support Network Appliance Executives NOTE: When a case with a priority of 2 is raised to a Priority 1, the time triggers for a Priority 1 are activated. Priority 2 (P2) NetApp node, system, or cluster is experiencing an infrequent, isolated, or intermittent "Panic" or "Hang", or is in a state of degraded performance that allows business operations to continue but at an inconsistent or Tess than optimal rate. At this Priority, NetApp is committed to a commercially reasonable best effort to provide a workaround and/or restore normal operations as quickly as possible. Priority 3 (P3) NetApp node, system, or cluster is experiencing an issue, anomaly, or cosmetic defect that inflicts little or no business impact, and where a viable and mutually agreeable workaround or hardware/software upgrade exists to mitigate the problem. Priority 4 (P4) Normal requests for information regarding the installation, configuration, use and maintenance of your NetApp equipment. This includes administrative inquiries and return material authorization (RMA) information. There is no impact to your production systems or business operations. Escalation Guidelines Upon notification, a customer issue is escalated to various levels of NetApp management in accordance with the notification guidelines in the table above. Our objective is to ensure that the most appropriate support resource(s) is/are utilized to quickly resolve the problem. The NetApp Technical Support Center Manager, to which the incident is escalated, takes responsibility for problem resolution oversight and provides progress updates to the customer on a timely basis. NetApp uses every reasonable method available aligned with the most appropriate skilled resources to expedite a resolution. It is important to recognize that this service level target requires shared responsibility from the customer to ensure success. 31 of 35 EXHIBIT C —VALUE-ADDED SERVICES The NetApp Professional Services organization provides end -to -end technical service solutions to your storage -related business technology problems. NetApp helps you choose and deploy best -in -class solutions and realize the full value of your NetApp investment in the context of your environment. Implementation/Rapid Deployment Services (RDSI NetApp Professional Services can be engaged to support full implementations by engaging NetApp or an Authorized Resetler who can develop a Statement of Work based on daily rates of the required roles. Additional services offered by NetApp include a Rapid Deployment Service (RDS). A RDS is a fixed scope -fixed price service offering that is designed to supplement basic installation and custom scoped ConsultingEdge services. ADD -ON SERVICE COMPONENTS A customer chooses add -on service components depending on their specific business needs. RDS+ STORAGE IMPLEMENTATION • SAN Add -on Service Component: Up to two NetApp purchased switches integrated with a single -node storage controller or one active -active storage cluster per package. A maximum of five hosts will be configured. • SnapMirror Add -On Service Component: Two storage controllers. The source must be configured as part of the FAS base service. The destination can be an existing controller, but must have a compatible configuration (the same major release of Data ONTAP). Limited to five relationships. • MetroCluster Add -On Service Component: One MetroCluster configuration per package. Installation is limited to a single data center campus (facilities within 500 meters of each other). Covers only Stretch (standard active -active) configurations. Limited to two disk shelves per controller. • SnapVault Add -On Service Component: Two storage controllers. The source must be configured as part of the FAS base service. Not to exceed a total of five SnapVault relationships. • Open Systems SnapVault Add -On Service Component: Up to two storage controllers. The destination must be configured as part of the FAS base service. One supported Open Systems SnapVault Microsoft® Windows® operating system only. Not to exceed a total of five client hosts located in the same data center. RDS+ V-SERIES IMPLEMENTATION switches integrated with a It SAN Add -On Service Component: Up to two NetApp purchased single -node storage controller and/or one active -active storage cluster per package. A maximum of five hosts will be configured. Training NetApp's innovative solutions are designed to reduce the time, cost, and complexity of managing enterprise data. Storage system administrators are able to perform the efficient administration of NetApp storage systems when they are knowledgeable and proficient. NetApp offers extensive training courses to transfer knowledge and increase proficiency. SupportEdge Services Overview The SupportEdge family of services provides hardware and software support so that customers with best -in -class NetApp solutions can manage storage and data optimally. Organizations and groups of all sizes - and even classified government customers - can choose the offering that best fits their needs. 32 of 35 SupportEdge Standard SupportEdge Standard provides basic support for noncritical systems for which your own staff performs the hands-on support: ■ Semiannual Storage Availability Audits (SAAs). The report contains comprehensive 360° reporting on your NetApp infrastructure, delivered by a NetApp Authorized Service Engineer (NetApp ASE) who will be available to answer questions about the report information. • Replacement parts delivery. Required replacement parts arrive based on a Return Materials Authorization (RMA) issued by NetApp Technical Support, in the tirneframe consistent with your agreement (Next Business Day [NBD], 4-hour, or 2-hour replacement). ■ Unlimited software updates. You are entitled to software updates, maintenance releases, and feature releases for all licensed NetApp software. • NetApp AutoSupport. A sophisticated 24x7 monitoring alerts your staff and NetApp to potential issues. This service can be beneficial for identification and problem resolution during non business hours when staffing is minimal. • Phone and online support (NOW). 24x7 phone and Web access to Technical Support and Knowledge Base services. Options Available • Technician to replace parts. A NetApp ASE comes to your site to remove the defective part and install the replacement part. • Proactive Support Advisor (PSA) service is designed for organizations that direct the majority of the resources towards prevention and use SupportEdge Standard service for reactive support. PSA is a scaled -down version of Technical Global Advisor (TGA) that provides proactive support through standard reports, processes, and customer interfacing. Your PSA will advise you of system vulnerabilities that could adversely affect system availability. ■ Non Returnable Disk (NRD). As an additional security precaution, NetApp offers NRD parts exchange. SupportEdqe Premium SupportEdge Premium is our premiere support package. 1t offers optimal performance, availability, and expedited remote and on -site problem resolution for mission -critical data centers and other business -critical operations. This offering combines expert on -site resources with innovative remote capabilities, for superior comprehensive and proactive support. SupportEdge Premium provides: ■ Priority case management - As a SupportEdge Premium customer, you are given priority before SupportEdge Standard and Warranty customers. • Initial basic installation - SupportEdge Premium provides basic hardware and software installation, configuration, and verification services to ensure that all NetApp products are properly installed. • On -site troubleshooting support - A NetApp authorized service engineer will come on site as needed to resolve your hardware and software issues. NetApp service engineers work in concert with other NetApp Global Support personnel to provide the fastest possible problem resolution. 33 of 35 • Physical inspection - An authorized NetApp partner conducts a semiannual physical inspection of your NetApp systems and the findings are integrated into your Storage Availability Audit report. The inspection checks more than a dozen critical items, including mounting, identification, seating of components and electrical connections, fan status, system monitoring LEDs, and fibre cabling. ■ Quarterly Storage Availability Audits (SAAs) - Comprehensive 360° reporting on your NetApp infrastructure presented in person by a NetApp Authorized Service Engineer (NetApp ASE) who can make suggestions and answer your questions. The customized SAA report provides meaningful analysis of your capacity and utilization trends, along with recommendations targeted to your business -strategy objectives and based on proven NetApp best practices. Note: To receive Storage Availability Audits, your NetApp systems must have AutoSupport enabled and reporting to NetApp. • Technician to replace parts - A NetApp technician comes to your site to remove defective part and install the replacement. • Replacement parts delivery - When a case is opened in NetApp Technical Support, any necessary replacement part is shipped to arrive at your site in a timeframe based on your support agreement: Next Business Day (NBD), 4-hour, or 2-hour parts delivery. • Unlimited software updates - You are entitled to software updates, maintenance releases, and feature releases for all licensed NetApp software. ■ Premium NetApp AutoSupport - A new and exciting suite of NOW (NetApp on the Web) applications for NetApp SupportEdge Premium customers. These premium tools build on the functionality of basic AutoSupport to offer advanced features for configuring and managing your NetApp systems. With Premium NetApp AutoSupport, you can: • Visualize the configuration at the company or device level • View timeline history of critical events and alerts • Check configuration differences • Generate Data ONTAP upgrade plans • NetApp AutoSupport - A sophisticated 24x7 monitoring service that alerts your staff and NetApp to potential issues. This service can be beneficial for identification and problem resolution during non business hours when staffing is minimal. • 24x7 phone and on-line support (NOW) - 24x7 phone and Web access to Technical Support and Knowledge Base self-help resources. Options Available • Technical Global Advisor (TGA). A NetApp professional is assigned to monitor and coordinate support activities and cases across your enterprise locations to ensure consistency and maximum effectiveness. Your TGA understands the details of your environment and applications and serves as a liaison to NetApp Technical Support to facilitate problem resolution and coordinate activities between your staff, NetApp support services, and NetApp engineering. • Proactive Support Advisor (PSA) - A service designed for organizations that direct the majority of the resources towards prevention and use SupportEdge Premium service for reactive support. PSA is a scaled -down version of TGA that provides proactive support through standard reports, processes, and customer interfacing. Your PSA will advise you of system vulnerabilities that could adversely affect system availability. 34 of 35 • Non Returnable Disk (NRD). For customers who are concerned about data security on returned defective disks, this feature can be added to your NetApp Support agreement. NRD allows you to keep any defective disks and dispose of them according to your company's security requirements. SupportEdge Secure for Government (SESG) SupportEdge Secure for Government is the industry's first support offering to address the mission -critical security requirements of government customers. This service delivers the most comprehensive and secure support infrastructure available to both classified and unclassified govemment agencies. There are two versions of this service to choose from: Onsite Support and Parts Delivery. The following table summarizes the featured components of SupportEdge Secure for Government. The self-help tools, remote support capabilities, and cleared on -site resources of SupportEdge Secure for Government provides a level of service unmatched in the storage industry. NetApp Leasing Information Individual Purchasing Entities may enter in to lease agreements for the products covered in this Master Price Agreement, if they have the legal authority to enter into these types of agreements without going through a competitive process. The lease agreements were not reviewed or evaluated as part of the RFP evaluation process. A sample lease agreement can be found at: http://www.netapp.com/us/how-to-buy/wsca/wsca/html_ 35 of 35 Addendum to Master Price Agreement • Between NetApp. Inc, ,And State of Minnesota, Materials Management Division Representing the Western States Contracting Alliance (WSCA) and the National Association of State Procurement Officials (NASPO) Lead State Contract #: B27170 Executed on: June 23, 2009 July 20, 2009 Page 1 of 1 This Master Price Agreement Addendum governs NetApp. Inc's (hereinafter "CONTRACTOR") use of the NASPO/WSCA name and logo during the term of this Master Price Agreement and amendments to this Master Price Agreement. CONTRACTOR may use the name and logo only as set forth below. Any use not expressly permitted herein is prohibited, and such use constitutes a material breach of the Master Price Agreement with the bead State and all Participating States, 1. CONTRACTOR may display the NASPO/WSCA name and logo on the face of the Master Price Agreement, including all electronic and hard copy versions. . 2. CONTRACTOR and its subcontractors, resellers, and agents may display the NASPO/WSCA names and logos on a web site as a "click an" link to the Master Price Agreement No other use of the logos or names is permitted on any web site, except as permitted in paragraphs 1 and 3.. 3. With, and only with, prior Written approval of the Lead State Contract Administrator, CONTRACTOR may advertise. the Master Price Agreement•in publications and promotional materiels aimed at state and local government entities eligtb. leto: use the Master Price Agreement.. Thet.sole focus and intent of such advertisements must be to increase participation in the -Master Pace Agreement. The NASPO/WSCA names may be:us$d;and the logos displayed in: the advertisentent'ONLY as it relates to the Master Price Agreement ite Lead State Contract Administrator's approval must encompass the content and appearance of the advertisertient send the media in which •the advertisement will appear. 4. CONTRACTOR may not make explicit or implidtrepresentations concerning the opinion of NASPO/WSCA, the Lead State, or any; Participating State regarding. CONTRACTOR or its:products or services. This restriction includes general.use of theNRSPO/WSCA names and logos NOT directly linkedto'oi related to this Master Price Agreement. • • t. CONTRACTOR must ensure that its sub -contractors, resellera;:and agents adhere to the terms of this Addendum, and CONTRACTOR is responsible for any breach by these entities. 8: CONTRACTOR must immediately cease all use of the NASPO/WSCA names and logos if directed to do so in writing by the. Lead State. ContractAdMinistiator, and CONTRACTOR must ensure that its sub -contractors, re -sellers, and agents1mmedlately cease all use. 7. CONTRACTOR shall notrnake or permit its subcontractors, resellers, or agents to make;,any alterations to NASPO's or WSOA!s'naines or legbe (including characters, style and colors) and CONTRACTOR shall not use or permit the use'gfNALSPO's ar;WSCA'e names or logos in a manner or context that could adversely affect NASPO's/WSCA's ,integrlt} ;,goodwill, or reputation. $; • • UpoTiterinination or expiration of the Master Price Agreement, CONTRACTOR and its sub- contractors, re -sellers, • and agents must cease all use of the NASPO/WSCA names and logos; except that, CONTRACTOR may use the NASPO/WSCA names for reference purposes in a description of its prior experience. Acknowledged: CO TOR Th. Tom, Mihich, Director, Operations Till. _luly20, 2009 LEAD STATE: In auootd.nce with ant* statmesor rule.. Skylab/re.AILr Data bats CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 14 .. =M TITLE: Warrant Register #42 for the period of 04/14/10 through 04/20/10 in the amount of $1,596,247.17 PREPARED BY: D. Gallegos DEPARTMENT: PHONE: 619-336-4331 APPROVED BY: EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 04/14/10 through 04/20/10 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Explanation Public Emp Ret Sys 235936 279,701.67 Emp Ret Sys PPE 04/05/10 SDG&E 235944 60,869.64 Utilities FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $1,596,247.17 BOARD / COMMISSION RECOMMENDATION: N/A TTACHMENTS: arrant Register #42 1/3 PAYEE FRANK TOYOTA EQUIFAX INFORMATION SVCS KTGY GROUP INC NATIONAL CONSTRUCTION RENTAL NBS NINYO & MOORE OPPER & VARCO STAPLES ADVANTAGE STRADLING YOCCA CARLSON & U S BANK CORPORATE PAYMT SYS AMAZON AT&T MOBILITY BAKER & TAYLOR BRODART CITY OF NATIONAL CITY DEMCO INC HANSEN LIBRARY SALES JORGENSEN 4KESHORE LEARNING MATERIALS IDWEST TAPE CIE OMNIGRAPHICS ORIENTAL TRADING COMPANY, INC SARAH STERN SMART & FINAL SPRINT STAPLES ADVANTAGE STERLING PUBLISHING CO., INC. THOMSON GALE U S POSTMASTER XEROX CORPORATION MINDY DONNER SCHOLASTIC INC. 1800-RADIATOR HAIR PURIFICATION SYSTEMS ACE UNIFORMS & ACCESSORIES,INC ADVANCED INFRASTRUCTURE AIRGAS-WEST AK & COMPANY ALESSIO LEASING INC ALL FRESH PRODUCTS AMERICAN ROTARY BROOM AUSTIN DOORS "WARD MASTER INC EARD BST WINDOW TINTING, INC. BON SUISSE INC BRENNTAG PACIFIC INC BROADWAY AUTO ELECTRIC BUCATCAT NATO q•r ter: ..,• INCbRP OR AT> WARRANT REGISTER # 42 4/20/2010 DESCRIPTION FOUR, 2009 TOYOTA PRIUS HYBRID BACKGROUND/CREDIT CKS FOR S8 PLAZA/HIGHLAND FENCE RENTAL-1640 E PLAZA BLVD/PALM LANDSCAPE MAINTENANCE SERVICES MARINA GATEWAY PROJECT EDUCATION VILLAGE/GENERAL MOP 45704 OFFICE SUPPLIES-REDEV SUDBERRY/GATEWAY CREDIT CARD EXPENDITURES ADULT NON-FICTION BOOKS CELL PHONE SVC - WINGS PROGRAM YOUNG ADULT AND CHILDREN BOOK BOOKS - WOW MOBILE COLLECTION OUT OF STATE SALES TAX MATERIALS & SUPPLIES FOR BOOK CHILDREN BOOKS MILEAGE REIMBURSEMENT THEME KITS FOR WOW MOBILE DVD'S FOR THE COLLECTION REIMB - EVENT AT THE LIBRARY REFERENCE BOOKS CRAFT MATERIAL REIMB - LIB LITERACY CONFERENCE FFL GIVEAWAYS VIDEO CONF LONG DISTANCE MOP 45704 OFFICE SUPPLIES GIVEAWAY BOOKS FOR WOWMOBILE REFERENCE BOOKS POSTAGE FOR OVERDUE NOTICES BASE CHARGE AND OVERAGES NOCHE DE CUENTOS ON 03/23/10 GIVEAWAY BOOKS-NOCHE DE CUENTOS RADIATOR 1164KO, VEH #215 TAILPIPE ADAPTERS NAMETAG. 1 LINE BLANK/FLEECE LINED PIRANHA SEWER CLEANING HOSE HELIUM TANK REFILLS FOR NUTRITION PREPARATION FY 08-09 MANDATED COST REFUND - SEWER CHGS FOOD FOR NUTRITION CENTER SWEEPER REPAIRS REPAIRS AND REPLACEMENTS RECOGNITION PLAQUE 125 PLAN REIMBURSEMENT TINT WINDOWS AT THE PD MILK/DAIRY DELIVERY FOR NUTRITION MUNICIPAL POOL CHEMICALS MOP 72447 AUTO PARTS BUS LICENSE ADMIN REFUND CHK NO DATE AMOUNT 235821 4/19/10 1,411.88 235822 4/20/10 50.11 235823 4/20/10 14,607.36 235824 4/20/10 919.70 235825 4/20/10 965.43 235826 4/20/10 2,280.25 235827 4/20/10 51.00 235828 4/20/10 25.53 235829 4/20/10 877.50 235830 4/20/10 15.68 235831 4/20/10 401.61 235832 4/20/10 184.81 235834 4/20/10 4,697.78 235835 4/20/10 6,681.76 235836 4/20/10 427.70 235837 4/20/10 173.98 235838 4/20/10 1,066.86 235839 4/20/10 88.50 235840 4/20/10 249.25 235841 4/20/10 1,298.73 235842 4/20/10 129.82 235843 4/20/10 59.70 235844 4/20/10 588.62 235845 4/20/10 105.00 235846 4/20/10 249.69 235847 4/20/10 11.19 235848 4/20/10 674.04 235849 4/20/10 1,921.38 235850 4/20/10 128.79 235851 4/20/10 308.00 235852 4/20/10 1,328.71 235853 4/20/10 200.00 235854 4/20/10 254.67 235855 4/20/10 151.46 235856 4/20/10 208.67 235857 4/20/10 1,079-78 235858 4/20/10 1,791.13 235859 4/20/10 23.76 235860 4/20/10 2,800.00 235861 4/20/10 5,103.47 235862 4/20/10 2,394.56 235863 4/20/10 239.21 235864 4/20/10 341.25 235865 4/20/10 77.21 235866 4/20/10 47.66 235867 4/20/10 2,654.00 235868 4/20/10 405.38 235869 4/20/10 1,305.39 235870 4/20/1D 266.44 235871 4/20/10 10.50 CA ;1FQRNJ4 2/3 PAYEE CALIFORNIA BAKING CO. CALIFORNIA COMMERCIAL SECURITY CALIFORNIA HIGHWAY ADOPTION CO CALIXTO CAPPO INC CAROLINE'S FLOWERS CHILDREN'S HOSPITAL CLEAN HARBORS CONSTRUCTION ELECTRONICS INC COOPER'S PLUMBING & HEATING COUNTY OF SAN DIEGO DAILY JOURNAL CORPORATION DELTA DENTAL DELTACARE (PMI) DOKKEN ENGINEERING DOUCETTE DREW FORD ECOLAB EDWARDS ESGIL CORPORATION FEDEX FIRE ETC FIRE SERVICE SPECIF. & SUPPLY FLEET SERVICES INC FLORES-CLARK GALINDO ROJAS GALLS, INC. GOVERNMENT FINANCE GRAINGER HAINES HAMILTON MEATS & PROVISIONS HARRIS & ASSOCIATES INC HERNANDEZ HERNANDEZ HOUSING AUTHORITY OF THE INFRASTRUCTURE ENGINEERING INTERNAT'L TRAINING RESOURCE JOSEPHINE L GRUNSETH KIWANIS CLUB OF NATIONAL CITY LACAL EQUIPMENT, INC. LEXIS-NEXIS LOPEZ JR MAINTEX INC MAN K-9 INC. MICHAEL P DURKEE MISSION UNIFORM SERVICE MOTOROLA MUNICIPAL CODE CORPORATION NAPA AUTO PARTS NATIONAL CITY ROTARY CLUB i C1T LL J INCORFOR:A'FED WARRANT REGISTER # 42 4/20/2010 DESCRIPTION BREAD DELIVERY FOR NUTRITION MOP 45754 AUTO PARTS PARADISE CREEK LITTER REMOVAL ED REIMB - NAT'L UNIVERSITY MEMBERSHIP & SUBSCRIPTIONS ARRANGEMENT MIX FLOWERS CHILD ABUSE EXAMS PD CS #1000760 HAZARDOUS WASTE BASIC MAINTENANCE - APR 2010 CITY-WIDE PLUMBING PREVENTIVE REGIONAL COMMUNICATIONS ANNUAL SUBSCRIPTION RENEWAL DENTAL INS MARCH 2010 DENTAL INS PMI APR 2010 MARCH 2010 SERVICES 125 PLAN REIMBURSEMENT MOP 49078 AUTO PARTS SUPPLIES/ SUNSHINE MEALS REFUND OF FILING COSTS PLAN CHECK SVC FOR FIRE DEPT SPECIAL HANDLING CHGS - PD PRO WARRINGTON 3003 8" LEATHER SVC WORK ON RESCUE TOOLS MOP 67804 AUTO PARTS SAN DIEGO DIVISION LEAGUE EXP 125 PLAN REIMBURSEMENT MK3 CROSSFIRE RED, #SD147 GFOA MEMBERSHIP RENEWALS MOP 65179 ELECTRICAL MATERIALS 125 PLAN REIMBURSEMENT MEAT DELIVERY FOR NUTRITION PED CROSSING 125 PLAN REIMBURSEMENT REIMBURSEMENT - CCW PERMIT REIMB-REYNA CURIEVOCT 2007 HAP PERFORM AN INFLOW & INFILT SWAT TEAM LEADER COURSE BUS LICENSE ADMIN REFUND KIWANIS CLUB DUES - MEALS UPPER LIFT LINK ONLINE CHARGES FOR MARCH 2010 125 PLAN REIMBURSEMENT MISC JANITORIAL SUPPLIES K9 TRAINING - MARCH 2010 SUB MAP ACT CLASS CLEANING/LAUNDRY SERVICES 1-118UCH9PW7AN, PORTABLE ASTRO SUPPLEMENT #28, UDATE 2 GENISYS EVO 2009POWER PACK STATEMENT 01/01/10 - 04/07/10 CHK NO DATE AMOUNT 235872 4/20/10 216.00 235873 4/20/10 157.51 235874 4/20/10 960.00 235875 4/20/10 815.54 235876 4/20/10 130.00 235877 4/20/10 153.65 235878 4/20/10 407.00 235879 4/20/10 843.12 235880 4/20/10 843.55 235881 4/20/10 105.00 235882 4/20/10 9,010.00 235883 4/20/10 82.32 235884 4/20/10 14,113.72 235885 4/20/10 3,507.91 235886 4/20/10 32,019.28 235887 4/20/10 200.00 235888 4/20/10 126.78 235889 4/20/10 206.80 235890 4/20/10 1,232.00 235891 4/20/10 233.8 235892 4/20/10 20.1 235893 4/20/10 1,886.05 235894 4/20/10 807.67 235895 4/20/10 32.97 235896 4/20/10 301.82 235897 4/20/10 79.03 235898 4/20/10 228.19 235899 4/20/10 .595.00 235900 4/20/10 202.74 235901 4/20/10 166.16 235902 4/20/10 501.41 235903 4/20/10 2,465.00 235904 4/20/10 2,000.00 235905 4/20/10 73.52 235906 4/20/10 1,184.48 235907 4/20/10 10,641.50 235908 4/20/10 695.00 235909 4/20/10 10.50 235910 4/20/10 136.00 235911 4/20/10 2,045.32 235912 4/20/10 427.38 235913 4/20/10 1,126.00 235914 4/20/10 935.62 235915 4/20/10 800.00 235916 4/20/10 195. 235917 4/20/10 66.L _ 235918 4/20/10 7,176.31 235919 4/20/10 826.50 235920 4/20/10 2,433.39 235921 4/20/10 275.00 PAYEE NGUYEN ORKIN PEST CONTROL PACIFIC AUTO REPAIR PACIFIC PRODUCTS & SERVICES PADRE JANITORIAL SUPPLIES INC PALM ENGINEERING PE PERRY FORD PERVO PAINT CO. PFEIFER PRIME SPORTS SALES & DESIGN PRO BUILD PROJECT PARTNERS INC PRUDENTIAL OVERALL SUPPLY PUBLIC EMP RETIREMENT SYSTEM RODRIGUEZ RODRIGUEZ ROE °ON BAKER CHEVROLET \FE & SECURE ENTERPRISES ,,,1FEWAY SIGN CO. SAN DIEGO HYDRAULICS SDG&E SILVA SMITH STAPLES ADVANTAGE STRATACOM SULLIVAN SUPERIOR READY MIX SYSCO SAN DIEGO THE LIGHTHOUSE INC TOM MOYNAIIAN TRITECH SOFTWARE SYSTEMS UNDERGROUND SERVICE ALERT WADE & ASSOCIATES WEST COAST 911 WEST GOVERNMENT SERVICES WEST GROUP PAYMENT CENTER WEST GROUP PAYMENT CENTER WHITAKER BROTHERS WILKINS AYROLL Pay period Start Date 08 3/23/2010 ihlCOitlaciatkTED WARRANT REGISTER # 42 4/20/2010 DESCRIPTION BUS LICENSE ADMIN REFUND PEST MAINTENANCE SMOG CERTIFICATION & REPAIRS PERFORATED TUBING/ANCHOR/RIVETS JANITORIAL SUPPLIES FOR NUTRITION CONSTRUCTION SERVICES NC PARK REHAI 125 PLAN REIMBURSEMENT MOP 45703 R&M AUTO EQUIPMENT MOP 63846 TRAFFIC CONT SUPPLIES 125 PLAN REIMBURSEMENT TAGLESS COTTON TSHIRTS MARKING PAINT FOR ST. RESURFACING PR TRAFFIC SIGNAL TIMING MOP 45742 LAUNDRY SERVICE SERVICE PERIOD 4-10-3 REIMBURSEMENT SMIP SESSION 45 125 PLAN REIMBURSEMENT 125 PLAN REIMBURSEMENT MOP 45751 AUTO PARTS PORTABLE VIDEO SURVEILLANCE R32 W/1160A 12X18 063 G/W HIP WHITE DRIVE PRODUCTS MOTOR WASTEWATER DIVISION 125 PLAN REIMBURSEMENT REFUND OVER PAID CITATION MOP 45704 OFFICE SUPPLIES - PD BUSINESS CARD IMPRINTS -COUNCIL SWAT TEAM LEADER COURSE TACK OIL & COLDMIX ASPHALTS FOOD FOR NUTRITION CENTER MOP 45726 AUTO PARTS MOP 45734 R&M AUTO EQUIPMENT CREDIT - STANDARD TRIMBLE INTERFACE UNDERGROUND SERVICE SOCCER FIELD QUICK -DRAW LEATHER SCABBARD CHOICEPOINT/CLEAR INVESTIGATIVE LABRARY PLAN CHARGES SUBSCRIPTION FEES - JAN 2010 SHREDDER MACHINE MAINTENANCE REIMB - CHIEF JUNIEL End Date Check Date 4/5/2010 4/14/2010 3/3 CHK NO DATE AMOUNT 235922 4/20/10 10.50 235923 4/20/10 353.75 235924 4/20/10 110.00 235925 4/20/10 6,747.43 235926 4/20/10 320.71 235927 4/20/10 40,565.00 235928 4/20/10 750.00 235929 4/20/10 528.09 235930 4/20/10 300.50 235931 4/20/10 1,305.00 235932 4/20/10 476.98 235933 4/20/10 561.93 235934 4/20/10 1,692.75 235935 4/20/10 297.13 235936 4/20/10 279,701.67 235937 4/20/10 250.00 235938 4/20/10 193.66 235939 4/20/10 60.00 235940 4/20/10 37.32 235941 4/20/10 2,195.00 235942 4/20/10 1,012.00 235943 4/20/10 740.07 235944 4/20/10 60,869.64 235945 4/20/10 100.00 235946 4/20/10 35.00 235947 4/20/10 227.69 235948 4/20/10 35.12 235949 4/20/10 620.00 235950 4/20/10 591.60 235951 4/20/10 2,126.66 235952 4/20/10 27.19 235953 4/20/10 50.00 235954 4/20/10 9,245.00 235955 4/20/10 183.00 235956 4/20/10 6,157.25 235957 4/20/10 504.85 235958 4/20/10 400.00 235959 4/20/10 2,159.44 235960 4/20/10 563.43 235961 4/20/10 285.00 235962 4/20/10 192.10 A/P Total 587,615.69 1,008,631.48 GRAND TOTAL $ 1,596,247.17 y-� A:4f. A INCORPORATED Warrant Register # 42 4/20/2010 001 GENERAL FUND 1,089,328.10 104 LIBRARY FUND 35,899.68 105 PARKS MAINTENANCE FUND 19,294.06 109 GAS TAXES FUND 9,403.78 111 P.O.S.T. FUND 620.00 125 SEWER SERVICE FUND 38,958.35 130 EMT-D REVOLVING FUND 4,116.53 131 ASSET FORFEITURE FUND 250.00 154 STATE PUBLIC LIBRARY FUND 880.47 158 SWIMMING POOL REVOLVING FUND 789.02 159 GENERAL PLAN UPDATE RESERVE 1,308.39 166 NUTRITION 17,689.18 172 TRASH RATE STABILIZATION FUND 2,551.74 173 NATIONAL SCHOOL DIST CONTRACT 938.45 174 SWEETWATER SCHOOL DIST CONTRAC 7,650.68 191 STOP PROJECT 1,460.68 208 SUPP. LAW ENFORCEMENT SVCS FUND (SLESF) 11,440.00 211 SECURITY AND ALARM REGULATION FUND 1,205.71 212 PERSONNEL COMPENSATION FUND 48,595.49 246 WINGS GRANT 20,638.19 277 NC PUBLIC LIBRARY DONATINS FUND 1,584.49 282 REIMBURSABLE GRANTS CITYWIDE 9,830.31 290 POLICE DEPT GRANTS 1,576.05 301 GRANT-C.D.B.G. 5,987.94 307 PROPOSITION A" FUND 25,632.80 312 STP LOCAL/TRANSNET HIGHWAY 12,009.69 320 LIBRARY GRANTS 15,147.67 502 SECTION 8 FUND 22,459.06 505 HOME FUND 2,547.96 511 TAX INCREMENT FUND 76,754.07 522 LOW/MODERATE HOUSING FUND 2,822.32 626 FACILITIES MAINT FUND 52,033.79 627 LIABILITY INS. FUND 886.28 628 GENERAL SERVICES FUND 2,010.86 629 INFORMATION SYSTEMS MAINTENANC 11,716.64 630 OFFICE EQUIPMENT DEPRECIATION 843.55 631 TELECOMMUNICATIONS REVOLVING 1,434.33 632 GENERAL ACCOUNTING SERVICES 18,812.77 643 MOTOR VEHICLE SVC FUND 17,603.30 644 EQUIPMENT REPLACEMENT RESERVE 1,411.88 724 COBRA/RETIREE INSURANCE 122.91 1,596,247.17 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 15 EM TITLE: Warrant Register #43 for the period of 04/21/10 through 04/27/10 in the amount of $218,762.95 PREPARED BY: D. Gallegos DEPARTMENT: PHONE: 619-336-4331 APPROVED BY: EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 04/21/10 through 04/27/10 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Explanation Industrial Coating 236006 69,555.37 Waterproofing & Staircase Repair FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $218,762.95 BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: arrant Register #43 IA "'c+ 1/2 PAYEE CHRISTENSEN & SPATH LLP E2 MANAGE TECH INC GE CAPITAL GEOSYNTEC CONSULTANTS HOGLE IRELAND INC LOLA HAPPY BAKERY SWEETWATER AUTHORITY 4IMPRINT ADAMSON POLICE PRODUCTS AFLAC ALL FRESH PRODUCTS AMR AUSTIN DOORS BON SUISSE INC BRENNTAG PACIFIC INC BROADWAY AUTO GLASS BROWNE CA BUILDING STANDARD COMMISION CALIFORNIA AUTO BODY CALIFORNIA BAKING CO. CCPOA REGION 2 CHICANO FEDERATION CHICANO FEDERATION CHULA VISTA POLICE CHULA VISTA POLICE CITY OF CHULA VISTA COMPUTER PROTECTION TECH.,INC COOPER'S PLUMBING & HEATING COPY POST PRINTING COUNTY OF SAN DIEGO DAPPER TIRE COMPANY DAY WIRELESS SYSTEMS DELL MARKETING CORP DEPT OF CONSERVATION ECOLAB ENFORCEMENT SUPPORT AGENCY ESGIL CORPORATION EX FED SOLUTIONS G & A AUTO AIR CONDITIONING G & A AUTOMOTIVE, INC. GEORGE Z. ZAMARO HAMILTON MEATS & PROVISIONS HORIZON HEALTH EAP INDUSTRIAL COATING AND JJJ ENTERPRISES KAMAN INDUSTRIAL TECHNOLOGIES KOCH ARMSTRONG LOCAL GOVERNMENT PUBLICATIONS MASON'S SAW & N AT- `Ja I I1VC(jR;EsORgTEl) WARRANT REGISTER # 43 4/27/2010 DESCRIPTION HARDING WESTSIDE NEIGHBORHOOD BROWNFIELD INSTALLMENT FOR COPIER RENTAL EDUCATION VILLAGE NC CONSOLIDATED PLAN/ACTION ECONOMIC DEVELOPMENT LOAN WATER UTILITES FOR CDC HAYWORTH MUGS UNITED SHIELD PST BALLISTIC ACCOUNT BDM36 APR 2010 FOOD FOR NUTRITION CENTER RCCP PAYMENT QTR 1 DOOR REPAIRS MILK/DAIRY DELIVERY - NUTRITION POOL CHEMICALS BACK WINDOW GREEN TINT REFUND BLDG PERMIT FEES BLDG STANDARDS REV FUND BODY REPAIRS & REFINISH/GLASS BREAD DELIVERY FOR NUTRITION A DAY DEVOTED TO CHILDREN CONE ANNUAL UNITY CELEBRATION ANNUAL UNITY CELEBRATION SOUTHERN CA GANG CONFERENCE SOUTHERN CA GANG CONFERENCE ST RESURFACING FEB. 2010 SVCS BATTERIES/EXTERNAL CABINET/INST PLUMBING REPAIRS RES RENTAL LIC/TAX EXPT FORM MAIL PROCESSING SVC 2116 - 3/15/10 TIRES FOR CITY FLEET COMMUNICATIONS EQUIP SVC-JAN 2010 INV XDP97X9T4 UPGRADE IR REMOTE QTRLY FEES-JAN - MAR 2010 DISHWASHER SUPPLIES -NUTRITION ANNUAL SVC SUPPORT OF POLICE PLAN CHECKING SVCS OF BUILDING PHOTO SHOP FOR LAW ENFORCEMT COMPRESSOR MOP 72655 R&M AUTO EQUIPMENT NCPD CHIEFS APPRECIATION COINS MEAT DELIVERY FOR NUTRITION EMP ASST PROGRAM - APRIL 2010 CONSTRUCTION SVCS PER CONTRACT FIRE ALARM MONITORING INV 0211925 OIL RESERVOIR CONSTRUCTION SERVICES, SPEC 09-9 LOCAL GOV PUBLICATIONS 2010 UPDATE MOP 45729 MATERIALS & SUPPLIES CHK NO DATE AMOUNT 235963 4/27/10 200 00 235964 4/27/10 11,493.89 235965 4/27/10 210.43 235966 4/27/10 241,28 235967 4/27/10 5,315.00 235968 4/27/10 4,618.49 235969 4/27/10 213.14 235970 4/27/10 802.28 235971 4/27/10 5,392.03 235972 4/27/10 1,657.50 235973 4/27/10 59.70 235974 4/27/10 29,097,09 235975 4/27/10 210.00 235976 4/27/10 342.16 235977 4/27/10 632.63 235978 4/27/10 240.29 235979 4/27/10 1,085.05 235980 4/27/10 291.60 235981 4/27/10 2,683.51 235982 4/27/10 144.00 235983 4/27/10 20.00 235984 4/27/10 50.00 235985 4/27/10 50.00 235986 4/27/10 150.00 235987 4/27/10 100.00 235988 4/27/10 78.00 235989 4/27/10 6,913.45 235990 4/27/10 150.00 235991 4/27/10 306.61 235992 4/27/10 3,345.75 235993 4/27/10 2,774.17 235994 4/27/10 1,542.50 235995 4/27/10 1,653.93 235996 4/27/10 691.87 235997 4/27/10 114.97 235998 4/27/10 2,400.00 235999 4/27/10 7,866.54 236000 4/27/10 85.00 236001 4/27/10 695.87 236002 4/27/10 410.02 236003 4/27/10 301.81 236004 4/27/10 1,207.43 236005 4/27/10 844.88 236006 4/27/10 69,555.37 236007 4/27/10 1,187.65 236008 4/27/10 232.90 236009 4/27/10 6,044.57 236010 4/27/10 119.56 236011 4/27/10 68.29 PAYEE MATTHEW BENDER & CO INC MISSION UNIFORM SERVICE NAPA AUTO PARTS NATIONAL CITY CAR WASH PACIFIC AUTO REPAIR PBS&J PERRY FORD POLICE EXEC RESEARCH FORUM PRO BUILD PRO -EDGE KNIFE REED RESTAURANT EQUIP SVC ROMAINE ELECTRIC CORP SAFARILAND, LLC SAM'S ALIGNMENT SERVICE SMITH SOUTHERN CALIFORNIA TO'S STAPLES ADVANTAGE STEVENSON SWEETWATER AUTHORITY SYSCO SAN DIEGO TARGET SPECIALTY PRODUCTS THE ENGRAVING STORE THE LIGHTHOUSE INC TOM MOYNAHAN TORREY PINE BANK UNION -TRIBUNE PUB. CO. UNITED PARCEL SERVICE VALLEY POWER SYSTEMS, INC WHITLOCK & WEINBERGER WILLIAMS YOUNG SECTION 8 HAPS PAYMENTS WARRANT REGISTER # 43 4/27/2010 DESCRIPTION CA CODES 6-IN-2, 2010 EDITION CLEANING/LAUNDRY SERVICES MOP 45735 AUTO PARTS CAR WASHES SMOG CERTIFICATION WASTEWATER FINANCIAL SVCS LABOR, MAINTENANCE SVC, COOLING SENIOR MANAGEMENT INSTITUTE MOP 45707 MATERIALS & SUPPLIES KNIFE SHARPENING SERVICES REPAIR/PARTS FOR NUTRITION TRUECHARGE2 12FVDC LAB SUPPLIES MOP 72442 R&M AUTO EQUIPMENT REIMB FOR FIRE STATIONS SUPPLY MEMBERSHIP - K. KILLACKY COPY PAPER CONFERENCE - 2010 WRIPMA FACILITIES DIVISION FOOD FOR NUTRITION CENTER SEMINAR REGISTRATION COST FLAG BOX W/ ENGRAVING - FIRE CHIEF MOP 45726 MINOR EQUIPMENT MOP 45734 R&M AUTO EQUIPMENT CONTRACT CONSTRUCTION SERVICES PUBLICATION OF PLANNING COMMISSION DELIVERY SERVICE - FIRE SOFTWARE/TRANSLATOR BOX/CABLING ITE ANNUAL MEETING (SMANGANIELLO) REIMB - EDUCATIONAL SHERMAN LEADERSHIP INSTITUTE Start Date End Date 4/21/2010 4/27/2010 2/2 CHK NO DATE AMOUNT 236012 4/27/10 132.22 236013 4/27/10 66.69 236014 4/27/10 347.74 236015 4/27/10 304.00 236016 4/27/10 220.00 236017 4/27/10 127.42 236018 4/27/10 2,432.28 236019 4/27/10 7,745.00 236020 4/27/10 739.03 236021 4/27/10 46.00 236022 4/27/10 175.00 236023 4/27/10 256.82 236024 4/27/10 495.36 236025 4/27/10 160.00 236026 4/27/10 30.68 236027 4/27/10 50.00 236028 4/27/10 5,436.60 236029 4/27/10 245.00 236030 4/27/10 11,072.04 236031 4/27/10 1,870.89 236032 4/27/10 120.00 236033 4/27/10 87.78 236034 4/27/10 124.83 236035 4/27/10 50.00 236036 4/27/10 318.14 236037 4/27/10 437.40 236038 4/27/10 19.90 236039 4/27/10 2,724.05 236040 4/27/10 495.00 236041 4/27/10 835.49 236042 4/27/10 419.58 A/P Total 211,476.15 7,286.80 GRAND TOTAL $ 218,762.95 Warrant Register # 43 4/27/2010 001 GENERAL FUND 105 PARKS MAINTENANCE FUND 111 P.O.S.T. FUND 120 PLAN CHECKING REVOLVING FUND 125 SEWER SERVICE FUND 130 EMT-D REVOLVING FUND 131 ASSET FORFEITURE FUND 166 NUTRITION 282 REIMBURSABLE GRANTS CITYWIDE 290 POLICE DEPT GRANTS 307 PROPOSITION A" FUND 502 SECTION 8 FUND 511 TAX INCREMENT FUND 522 LOW/MODERATE HOUSING FUND 626 FACILITIES MAINT FUND 628 GENERAL SERVICES FUND 629 INFORMATION SYSTEMS MAINTENANC 643 MOTOR VEHICLE SVC FUND 85, 334.46 295.43 419.58 7,866.54 510.45 29,097.09 7,745.00 4,026.84 7,045.96 769.31 6,440.71 7,896.83 16,817.23 5,475.00 10,696.79 5,355.80 9,313.45 13, 656.48 218,762.95 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 16 M TITLE: [audio Hearing - Proposal to install red light cameras at various intersections throughout the City with the following locations under consideration: Plaza Blvd/Euclid Ave; Highland Ave/301h St; Paradise Valley Rd/8th St; Highland Ave/8th St; and Highland Ave/Plaza Blvd. The public and interested parties have been invited to appear at this meeting to be heard at this public meeting or in written correspondence delivered to the City Clerk or to the City Council at, or prior to the public hearing. PREPARED BY: Manuel Rodriguez, Assistant Chief 'DEPARTMENT: Police PHONE: 4512 / APPROVED BY: EXPLANATION: Automated red light photo enforcement is authorized and governed by the California Vehicle Code (Sections 21455.5 through 21455.7). The goal of a Red Light Photo Enforcement Program is to improve the safety of the community for vehicular, bicycle and pedestrian traffic by reducing the incidence of vehicles failing to stop for red Tight signals. Photo enforcement programs have a proven record for reducing right angle collisions at monitored intersections in jurisdictions where similar programs have been initiated. FINANCIAL STATEMENT: ACCOUNT NO. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Recommends Approval BOARD 1 COMMISSION RECOMMENDATION: ATTACHMENTS: r� CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 17 EM TITLE: An Ordinance of the City Council of the City of National City amending the Municipal Code by adding Chapter 4.70 relating to Recovering Costs for the Deployment of Emergency Services by the National City Fire Department. (Fire) PREPARED BY: Walter Amedee A1iga DEPARTMENT: Fi PHONE: 619-336-4556 APPROVED BY: EXPLANATION: Ordinance amending the City of National City Municipal Code by adding Chapter 4.70 relating to Recovering Costs for the Deployment of Emergency Services by the National City Fire Department. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS Based on service calls for 2009 the National City Fire Department would have netted approximately $70,000 to the City's General Fund. ENVIRONMENTAL REVIEW: ORDINANCE: INTRODUCTION: FINAL ADOPTION: X STAFF RECOMMENDATION: Adopt Ordinance amending the City of National City Municipal Code by adding Chapter 4.70 relating to Recovering Costs for the Deployment of Emergency Services by the National City Fire Department. BOARD l COMMISSION RECOMMENDATION: ATTACHMENTS: Staff Report Ordinance STAFF REPORT I. BACKGROUND: Current policies, codes and ordinances allow the National City Fire Department (NCFD) to obtain reimbursement from responsible individuals for the expense of specified emergency responses and/or enforcement actions by NCFD to protect the public from fire or other hazardous substances. The City currently can recover costs for the following types of responses: 1. Responses to false alarms which occur more than two times in a 12-month period 2. Responses to danger posed by fire or hazardous substance caused by negligent acts in violation of law 3. Responses to emergency incidents due to D.U.I. (driving under the influence) offenses However, these charges do not include the City's cost to provide emergency response services in events of vehicle accidents; such as basic response time, fluid clean-up, vehicle fire suppression and rescue, extrication and air ambulance landings. Historically, NCFD has not billed for these services, and costs are paid from the General Fund. In today's economy, with pressure to maintain services conflicting with significant revenue reductions, it would benefit NCFD to identify additional opportunities to recover costs to offset those reductions. One means of accomplishing this objective is to recover costs from vehicle emergency responses resulting from purposeful or negligent conduct, including violations of law, from non-residents of National City. Since non-residents do not pay National City property taxes or assessments, the City and its taxpayers bear the cost of these responses out of General Fund revenues. Most, if not all, automobile and homeowners insurance companies have provisions in their policies stipulating payment to fire departments for emergency response and service provided at vehicle accidents and other fire/rescue events. The trend in our area (San Diego County) and throughout the country is to bill for these services directly to the insurance carriers. This ordinance specifies billing for motor vehicle incident (MVI) services to involved parties that live outside the City of National City limits. Billing for fire/rescue activities will be first directed to the insurance carriers of those non-residents. Several vendors have been identified that specialize in the billing and collection of these types of fees. With the adoption of this ordinance NCFD will "piggy -back" on an awarded contract between the City of Roseville, CA and Fire Recovery USA. The City of Roseville conducted a request for proposal (RFP) and obtained bids from a minimum of three vendors, a process that mirrors the City of National City RFP process. In addition, the City of National City may charge fees for the cost of services that the NCFD provides related to hazardous materials spills or discharges, pipeline or power line incidents, and fire cause and origin investigations. These fees may be billed to the responsible party regardless of fault or residency, as determined by the Director of Emergency Services, his designee or third party billing service. The attached fee schedule was prepared utilizing current salary tables, equipment costs and average times typically associated with these types of events. The schedule will be evaluated each year and adjusted appropriately. Data will be collected by NCFD personnel at the time of incidents and submitted to the approved vendor for billing. Funds collected will be placed into the City's General Fund. II. DISCUSSION: Adopting this Ordinance would allow the City to recover costs from non-residents of National City for vehicle emergency responses, helping offset the cost of these responses to General Fund revenues. National City homeowners and business owners would continue to be billed for false alarms, negligent acts, hazardous materials responses and D.U.I. responses. The General Fund finances approximately 20% of the NCFD budget. Funds for the repair and replacement of all "firefighting equipment and apparatus" come mostly from the General Fund, with the exception of some grant funded equipment. This Ordinance will provide an expanded cost recovery program for vehicle response costs including costs of vehicle fires and air ambulance landings, which will apply only to non- residents of National City, who do not pay into the General Fund through property taxes and assessments. Services NCFD provides for these incidents would be submitted as a claim to the auto insurance company of the non-resident of National City. The advantage of pursuing cost recovery for these types of incidents is that most auto insurance companies provide coverage to pay for fire response (separate from the ambulance fee) to traffic collisions and vehicle fires. As a result, the success rate of cost recovery from auto insurance companies is fairly high (60-70%) with the assistance of a company that specializes in insurance billing. Staff anticipates that if this Ordinance is adopted, a contract with Fire Recovery USA will be proposed for City Council approval. The charges for service to be recovered by NCFD will be determined on a case -by -case basis according to the fee schedule in Exhibit A of this Ordinance. In accordance with State law, the rates in Exhibit A represent an amount Tess than or equal to the estimated average actual cost of such services provided by the City. The rate schedule in Exhibit A of this Ordinance will be evaluated each year and adjusted appropriately. The Ordinance is proposed for first reading, after which the City Council is required to hear and consider any objections to the proposed schedule of fees. The Ordinance will be brought back for adoption at a regular meeting no less than seven days after the first reading. Seeking reimbursement for the wear and tear on equipment, and replacement where warranted, would be additional funding to be applied to the City's General Fund to be 2 expended on repairs and replacement of firefighting tools and equipment. These monies would be no different from neighboring departments that currently charge the residents of National City for services they use in their city. North County Fire Protection District and San Miguel Fire Protection District charge "fees for service" to our residents if they are involved in a motor vehicle incident in their respective districts. The Chula Vista Fire Department, Oceanside Fire Department, and San Diego Fire Rescue Department are considering a similar fee. III. ALTERNATIVES: 1. Amend or pass this Ordinance 2. Take no action IV. FISCAL IMPACT: While guarantees for revenue recovery cannot be made, an estimated forecast, based on service calls for 2009, would have netted approximately $69,797 to the City's General Fund. In 2009, there were a total of 5,632 responses. Of those, an estimated 3% were non-resident MVI responses (totaling 169 responses). The general formula is: 169 x 70% collection rate x $590 = $69,797. V. RECOMMENDATION: The National City Fire Department recommends Council approve the attached Ordinance allowing the billing for motor vehicle incident (MVI) responses and fire rescue services performed by NCFD. The ordinance limits the billing of MVI responses to only those responsible parties living outside the City of National City limits. Adopt Ordinance amending the City of National City Municipal Code by adding Chapter 4.70 relating to Recovering Costs for the Deployment of Emergency Services by the National City Fire Department. 3 ORDINANCE NO. 2010 — 2339 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING THE NATIONAL CITY MUNICIPAL CODE BY ADDING CHAPTER 4.70 RELATING TO RECOVERING COSTS FOR THE DEPLOYMENT OF EMERGENCY SERVICES BY THE NATIONAL CITY FIRE DEPARTMENT WHEREAS, the emergency services response activity to incidents increases each year due to additional requirements, such as those for environmental protection and Homeland Security, which create additional demands on all operational aspects of the National City Fire Department services; and WHEREAS, the City of National City has investigated different methods to maintain a high level of quality of emergency service capability during times of increasing service demands; and WHEREAS, maintaining an effective response by the National City Fire Department decreases the overall societal costs of incidents through timely and effective management of emergency situations, saving lives, and reducing property and environmental damage; and WHEREAS, a majority of motor vehicle incidents and other emergency services involve individuals not residing in the National City Fire Department's service area; and WHEREAS, the City of National City desires to implement a fair and equitable procedure by which to recovery the reasonable costs for emergency responses. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of National City, that Title 4 of the National City Municipal Code is amended by adding Chapter 4.70 to read as follows: Chapter 4.70 Emergency Response Cost Recovery Fee Sections: 4.70.010 Findings. 4.70.020 Fees for recovery of emergency response costs. 4.70.030 Adoption of fee schedule for recovery of emergency response costs. 4.70.040 Persons subject to fee. 4.70.050 Severability 4.70.010 Findings. A. The City of National City is authorized to provide any service relating to the protection of lives and property including, but not limited to, fire protections services, rescue services, emergency medical services, hazardous material emergency response services, and other emergency response services. B. The City of National City finds that the quantity and scope of services provided by the National City Fire Department are an increasing burden on the City of National City. C. The City of National City may charge a fee to recover the reasonable costs of services necessary to protect the public health and safety associated with motor vehicle incidents, hazardous materials spills or discharges, motor vehicle fires, motor vehicle extrications, pipeline or power line incidents, and fire cause and origin investigations. 4.70.020 Fees for recovery of emergency response costs. The City of National City shall charge fees for the cost of services that the National City Fire Department provides related to motor vehicle incidents, motor vehicle fires, motor vehicle extrications, hazardous materials spills or discharges, pipeline or power line incidents, and fire cause and origin investigations. The fees shall not exceed the reasonable cost to provide such services and shall be charged according to the usual, customary, and reasonable fees as set by a schedule of fees. A motor vehicle incident, for the purposes of this Chapter, means any matter involving an emergency response to a motor vehicle, including, but not limited to, collisions, accidents, fire, and extrication. 4.70.030 Adoption of fee schedule for recovery of emergency response costs. The City of National City adopts the fee schedule set forth in Exhibit A, and incorporates them herein as the usual, customary, and reasonable costs of the services identified in Exhibit A. The City Council may amend, as needed, the schedule of fees in Exhibit A by resolution. 4.70.040 Persons subject to fee. The fees shall be billed, as determined by the director of emergency services, his or her designee or third party billing service, to any person or persons whose negligent or willful act is a cause of any motor vehicle incident or a technical rescue, and to any person or persons who is the owner of, or has custody and control over any vehicle involved in a motor vehicle incident. Fees for motor vehicle incidents shall not be billed to residents of the City of National City. Fees not related to motor vehicle incidents, such as those for hazardous material discharges or releases, or cause or origin investigations, shall be billed to the responsible party regardless of fault, as determined by the director of emergency services, his designee or third party billing service. 4.70.050 Severability. If any sentence, clause, section or part of this Chapter, or any fee imposed upon any person or entity is found to be unconstitutional, illegal or invalid, such unconstitutionality, illegality, or invalidity shall affect only such clause, sentence, section, or part of this Chapter, or person or entity; and shall not affect or impair any of the remaining provisions, sentences, clauses, sections, or other parts of this Chapter, or its effect on other persons or entities. It is declared to be the intention of the city council that this Chapter would have been adopted had such unconstitutional, illegal, or invalid sentence, clause, section, or part of this Chapter not been included herein; or had such person or entity been expressly exempted from the application of this Chapter. To this end the provisions of this Chapter are severable. -- Signature Page to Follow -- Ordinance No. 2010 — 2339 2 Recovery Costs for Emergency Services PASSED and ADOPTED this day of , 2010. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Ron Morrison, Mayor Ordinance No. 2010 — 2339 3 Recovery Costs for Emergency Services EXHIBIT A COST RECOVERY FEES BASED ON PER HOUR MOTOR VEHICLE INCIDENTS Level 1 - $435.00 Provide hazardous materials assessment and scene stabilization. This will be the most common "billing level". This occurs almost every time a fire department responds to an accident/incident. Level 2 - $495.00 Includes Level 1 services as well as clean up and material used (sorbents) for hazardous fluid clean up and disposal. We will bill at this level if the fire .department has to clean up any gasoline or other automotive fluids that are spilled as a result of the accident/incident. Level 3 — CAR FIRE - $605.00 Provide scene safety, fire suppression, breathing air, rescue tools, hand tools, hose, tip use, foam, structure protection, and dean up gasoline or other automotive fluids that are spilled as a result of the accident/incident. Level 4- $1,800.00 Includes Level 1 & 2 services as well as extrication (heavy rescue tools, ropes, airbags, cribbing etc.). We will bill at this level if the fire department has to free/remove anyone from the vehicle(s) using any equipment. We will not bill at this level if the patient is simply unconscious and fire department is able to open the door to access the patient. This level is to be billed only if equipment is deployed. Level 5 - $2,200.00 Includes Levels 1, 2, & 4 services as well as Air Care (multi -engine company response, mutual aid, helicopter). We will bill at this level any time a helicopter is utilized to transport the patient(s). Level 6 Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates, for each incident using, itemized rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus, per personnel, plus products and equipment used. HAZMAT Level 1 - $700.00 Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, set-up and command. Ordinance No. 2010 — 2339 4 Recovery Costs for Emergency Services Level 2 - $2,500.00 Intermediate Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, set-up and command, Level A or B suit donning, breathing air and detection equipment. Set-up and removal of decontamination center. Level 3 — $5,900.00 Advanced Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command, Level A or B suit donning, breathing air and detection equipment and robot deployment. Set-up and removal of decontamination center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal fees of material and contaminated equipment and material used at scene. Includes 3 hours of on scene time - each additional hour @ $300.00 per HAZMAT team. PIPELINE INCIDENTS / POWER LINE INCIDENTS (Includes, but not limited to: Gas, Sewer, Septic to Sewer, and Water Pipelines) Level 1 - $400.00 Basic Response: Claim will include engine response and first responder assignment, perimeter establishment; evacuations, first responder set-up and command. Includes inspection without damage or breakage. Level 2 - $1,000.00 Intermediate Response: Claim will include engine response, first responder assignment, and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command. May include HAZMAT team, Level A or B suit donning, breathing air and detection equipment. Supervise and/or assist pipeline repair. Ordinance No. 2010 — 2339 5 Recovery Costs for Emergency Services Level 3 — Itemized Claim Charges Advanced Response: Claim will include engine response, first responder assignment, and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command. May include HAZMAT team, Level A or B suit donning, breathing air and detection equipment. Supervise and/or assist pipeline repair of intermediate to major pipeline damage. May include set-up and removal of decontamination center, detection, recovery and identification of material. Disposal and environment clean up. FIRE INVESTIGATION Fire Investigation Team - $275.00 per hour. Includes: • Scene Safety • Investigation • Source Identification • K-9/Arson Dog Unit • Identification Equipment • Mobile Detection Unit • Fire Report The claim begins when the Fire Investigator responds to the incident and is billed for logged time only. FIRES Assignment - $400.00 per hour, per engine / $500.00 per hour, per truck Includes: • Scene Safety • Investigation • Fire / Hazard Control This will be the most common "billing level". This occurs almost every time a fire department responds to an incident. OPTIONAL: A fire department has the option to bill each fire as an independent event with custom mitigation rates. Itemized, per person, at various pay levels and for itemized products use. Ordinance No. 2010 — 2339 6 Recovery Costs for Emergency Services WATER INCIDENTS Level 1 Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, first responder set-up and command, scene safety and investigation (including possible patient contact, hazard control). This will be the most common "billing level". This occurs almost every time a Fire Department responds to a water incident. Billed at $400 plus $50 per hour, per rescue person. Level 2 Intermediate Response: includes Level 1 services as well as clean up and material used (sorbents), minor hazardous clean up and disposal. We will bill at this level if the fire department has to clean up small amounts of gasoline or other fluids that are spilled as a result of the incident. Billed at $800 plus $50 per hour, per rescue person. Level 3 Advanced Response: includes Level 1 and Level 2 services as well as D.A.R.T. activation, donning breathing apparatus and detection equipment. Set up and removal of decontamination center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal fees of material and contaminated equipment and material used at scene. Billed at $2,000 plus $50 per hour per rescue person, plus $100 per hour per HAZMAT team member. Level 4 Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates, for each incident using, itemized rates deemed usual, customary, and reasonable (UCR). These incidents will be billed, itemized, per trained rescue person, plus rescue products used. BACK COUNTRY OR SPECIAL RESCUE Itemized Response: each incident will be billed with custom mitigation rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus per hour, per trained rescue person per hour, plus rescue products used. Minimum billed $400 for the first response vehicle plus $50 per rescue person. Additional rates of $400 per hour per response vehicle and $50 per hour per rescue person. CHIEF RESPONSE This includes the set-up of Command, and providing direction of the incident. This could include operations, safety, and administration of the incident. Billed at $250 per hour. Ordinance No. 2010 — 2339 7 Recovery Costs for Emergency Services MISCELLANEOUS Engine billed at $400 per hour. Truck billed at $500 per hour. Miscellaneous equipment billed at $300. MITIGATION RATE NOTES The mitigation rates above are average "billing levels", and are typical for the incident responses listed, however, when a claim is submitted, it will be itemized and based on the actual services provided. These average mitigation rates were determined by itemizing costs for a typical run (from the time a fire apparatus leaves the station until it returns to the station) and are based on the actual costs, using amortized schedules for apparatus (including useful life, equipment, repairs, and maintenance) and labor rates (an average department's "actual personnel expense" and not just a firefighter's basic wage). The actual personnel expense includes costs such as wages, retirement, benefits, workers comp, insurance, etc. Ordinance No. 2010 — 2339 8 Recovery Costs for Emergency Services CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 18 'EM TITLE: An Ordinance of the City Council of the City of National City Amending Sections 4.52.050 and 4.52.140 of Chapter 4.52, Title 4, of the National City Municipal Code Pertaining to Transportation Development Impact Fees PREPARED BY: Stephen Manganiello, Traffic Engineer4ZP( DEPARTMENT: Dev PHONE: 619-336-4382 APPROVED EXPLANATION: See attached. Services/Eng. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: X Finance MIS STAFF RECOMMENDATION: Adopt Ordinance. BOARD / COMMISSION RECOMMENDATION: N/A. ATTACHMENTS: Explanation Explanation On April 1, 2008, to satisfy the requirements of the TransNet Regional Transportation Congestion Improvement Program (RTCIP) for receipt and expenditure of TransNet funds, City Council adopted Ordinance No. 2008-2310 amending Title 4 of the National City Municipal Code by adding Chapter 4.52 "Establishing and Approving a Transportation Development Impact Fee for Capital Improvement Projects Necessary to Maintain Acceptable Levels of Traffic and Transportation Service Within the City". On January 22, 2010 the SANDAG Board of Directors determined that a nursing home, home for the aged, assisted living facility, or similar institutional unit is not the type of unit the RTCIP was intended to cover. As such, the Board approved the following amendments to the TransNet Extension Ordinance RTCIP Requirements: Local agencies are not required to charge for a new institutional unit for purposes of compliance with the Ordinance's RTCIP Funding Program requirements when the local agency documents that it has made the following findings prior to issuance of a final certificate of occupancy: 1. The individual unit will not have both a bathroom and permanent built-in kitchen facilities equipped with a cooking range, refrigerator, and sink; and 2. The principal reason a person will live in the unit is because the person needs medical and/or nursing care; and 3. The local agency has required that the developer agree that the unit in substance will be used as a health care facility rather than as a residence. To comply with the aforementioned amendments to the TransNet Extension Ordinance RTCIP Requirements, staff proposes to make amendments to Chapter 4.52, specifically to Sections 4.52.050 and 4.52.140, of the National City Municipal Code. These amendments provide a definition of what constitutes an institutional unit and exempts such units from imposition of the transportation development impact fee, pending determination of the three findings listed above. A certified copy of the full text of the proposed ordinance amendments shall be posted in the office of the City Clerk at least five days prior to the adoption of the proposed ordinance. The provisions of Government Code Section 36933 providing for publication of ordinances shall be complied with. The ordinance was introduced at the City Council Meeting of May 4, 2010. There were no comments from Council or the general public. Staff recommendation is to adopt the ordinance. ORDINANCE NO. 2010 — 2340 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING SECTIONS 4.52.050 AND 4.52.140 OF CHAPTER 4.52, TITLE 4, OF THE NATIONAL CITY MUNICIPAL CODE PERTAINING TO TRANSPORTATION DEVELOPMENT IMPACT FEES BE IT ORDAINED by the City Council of the City of National City that Chapter 4.52 of the National City Municipal Code is amended by amending Sections 4.52.050 and 4.52.140 to read as follows: Chapter 4.52.050 Definitions. The definitions set forth in this section shall govern the application and interpretation of this Chapter: "Applicant" means developer or person seeking a development permit. "Building permit" means a permit required and issued by the City of National City. "City" means the City of National City. "City of National City transportation impact fee program" is the fee study entitled "City of National City Transportation Impact Fee Program," dated March 2008, approved and adopted by the city council on April 1, 2008. The City of National City transportation impact fee program is maintained for public review in the engineering department of the City of National City. "Construction" means design, performance of estimates, environmental assessments and studies, determination of fees, acquisition of right-of-way, administration of construction contracts, and actual construction. "Developer" means the owner or developer of a development seeking a development permit. "Development permit" means any permit or approval from the City of National City including, but not limited to, a general plan amendment, zoning or rezoning of property, a conditional use permit, a design permit, a coastal development permit, a variance permit, a planned development permit, subdivision map, parcel map, building permit, or any another permit for construction, reconstruction, or development. "Development project" or "development" means any activity described in Section 66000 et seq., of the California Government Code. "Industrial" means any use of land specified as an industrial use in Title 18 of this Code. "Institutional Units" mean a nursing home, home for the aged, assisted living facility, or similar institutional units. "Multifamily" means any use of land specified as a multifamily use in Title 18 of this Code. "New development" means any development requiring a development permit. "Residential" means any use of land specified as a residential use in Title 18 of this Code. "Single-family" means any use of land specified as a residential use in Title 18 of this Code. "TDIF" means Transportation Development Impact Fee. "TDIF facilities" means the transportation facilities, or portions thereof, identified in the City of National City Transportation Impact Fee Program, or future city approved alternatives that substantially fulfill the transportation needs identified and represented by a listed facility. "TDIF reports" means the City of National City Transportation Impact Fee Program report dated March 2008, and approved and adopted by the city council on April 1, 2008. This report shall be changed or periodically updated by action of the city council pursuant to Section 4.52.100 of this Chapter. The current adopted reports are on file with the city clerk of the City of National City. "Transportation facility project" means that project or portion of project, which involves the specified improvements in the City of National City Transportation Impact Fee Program. 4.52.140 Exemptions. The following new development shall be exempt for the application of the provisions of this Chapter: A. Public facilities, government buildings, public buildings, public schools. B. Uses with the following characteristics or activities as a principal use of land, generally described as "community purpose facility": 1. Social service activities, including such services as Boy Scouts, Girl Scouts, Boys Club and Girls Club, YMCA and services for the homeless; 2. Public schools (elementary and secondary); 3. Private schools (elementary and secondary); 4. Day care (nonprofit only); 5. Senior care and recreation (nonprofit only); and 6. Worship, spiritual growth and development. C. Condominium conversions. D. Moderate, low, very low, and extremely low income residential units as defined by Health and Safety Code Sections 50079.5, 50093, 50105, 50106, and by reference in Government Code Section 65585.1. E. Rehabilitation and/or reconstruction of any legal residential structure and/or the replacement of a previously existing residential unit. F. Development projects subject to development agreements prior to May 28, 2004 that expressly prohibit the imposition of impact fees, however, if the terms of the development agreement are extended beyond July 1, 2008, then the requirements of this chapter shall apply, G. Guest dwellings. H. Additional residential units located on the same parcel regulated by the provisions of any agricultural zoning. I. Kennels and catteries established in conjunction with an existing residential unit. J. The sanctuary building of a church, mosque, synagogue, or other house of worship eligible for property tax exemption. K. Institutional Units if the following findings are made and documented prior to the issuance of a final occupancy permit: Ordinance No. 2010 — 2340 Page 2 Amending Chapter 4.52 Transportation Development Impact Fees 1. The individual units will not have both a bathroom and permanent built-in kitchen facilities equipped with a cooking range, refrigerator, and sink; and 2. The principal reason a person will live in the unit is because the person needs medical and/or nursing care; and 3. The developer has agreed that the unit in substance will be used as a health care facility rather than as a residence. PASSED and ADOPTED this 18th day of May, 2010. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Ordinance No. 2010 — 2340 Ron Morrison, Mayor Page 3 Amending Chapter 4.52 Transportation Development Impact Fees CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 19 EM TITLE: Resolution of the City Council of the City of National City to waive the formal bid process and authorize the Mayor to sign a Service Agreement between the City of National City and Fire Recovery USA, LLC for implementing a Cost Recovery Program. (FIRE) PREPARED BY: Walter Amedee 1v0 PHONE: 619-336-4556 EXPLANATION: As allowed by Purchasing Ordinance #1480, Section 16, this award will be made as a result of competitive bids solicited by the City of Roseville, where Fire Recovery USA, LLC, was determined to be the lowest responsive, responsible bidder, and was awarded their bid for Fire/Rescue Billing Service. Fire Recovery USA, LLC is pleased to offer the City of National City the opportunity to take advantage of this competitive bid. The City of Roseville award made Fire Recovery USA, LLC reimburse the City for a portion of the monies collected at a rate of 83% of the total monies collected on the City's claims for the first six (6) months. If the preceding six (6) months collection percentage is equal to or greater than 65%, then Fire Recovery USA, LLC will be entitled to retain an additional 3% per month on monies collected until the next six (6) month audit. If a six (6) month audit shows the collection percentage is less than 65%, then Fire Recovery USA, LLC will reimburse City the original rate of 83% for the following six (6) months. The City of Roseville bid fully complies with Section 11 of Ordinance #1480. Additional market research has been nducted to consider current pricing, other brands, other purchasing options, and it is in the City's best interest to take advantage of this opportunity. DEPARTMENT: APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: ,._. Finance APPROVED: MIS Based on service calls for 2009 the National City Fire Department would have netted approximately $70,000 to the City's General Fund. ENVIRONMENTAL REVIEW: ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Staff recommends authorizing the Mayor to sign a Service Agreement between the City of National City and Fire Recovery USA, LLC for implementing a Cost Recovery Program. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: City of Roseville RFP for Fire/Rescue Billing Service Fire Recovery USA, LLC formal bid response to the City of Roseville RFP 3. Service Agreement between the City of National City and Fire Recovery USA, LLC 4. Resolution RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE BID PROCESS AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH FIRE RECOVERY USA, LLC, TO IMPLEMENT A COST RECOVERY PROGRAM FOR THE FIRE DEPARTMENT IN CONNECTION WITH MOTOR VEHICLE INCIDENTS AND OTHER EMERGENCY INCIDENTS WHEREAS, the City desires to employ a contractor to assist with the billing for services provided by the National City Fire Department in connection with motor vehicle incidents and other emergency incidents; and WHEREAS, the City has determined that Fire Recovery USA, LLC, is qualified by experience and ability to perform the services desired by the City, and is willing to perform such services; and WHEREAS, the City of Roseville awarded a contract to Fire Recovery USA, LLC, who was determined to be the lowest, responsive responsible bidder of a competitive bidding process, which National City can "piggyback", thereby getting the best purchase price; and WHEREAS, Section 2.60.260 of the National City Municipal Code provides that the City may buy directly from a vendor at a price established through competitive bidding by another public agency whose procedures have been determined be in substantial compliance with the City's procurement procedures, and the City Council has made such a determination in this case. It is therefore recommended that the purchase be made without complying with the competitive bidding procedure set forth in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby affirms the determination that the City of Roseville's procurement procedures are in substantial compliance with the City's, and pursuant to Section 2.60.260 of the Municipal Code authorizes the waiver of the bidding process. BE IT FURTHER RESOLVED that the City Council hereby authorizes the Mayor to execute an agreement with Fire Recovery USA, LLC, to assist with the billing for services provided by the National City Fire Department in connection with motor vehicle incidents and other emergency incidents. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Della, City Clerk George H. Eiser, III City Attorney IMPORTANT! ! ! The City is not responsible for misdelivered bids, and the Bidder is strictly liable for its chosen method of delivery. It is the Bidder's sole responsibility to make sure that bids arrive at the proper location. Any bid which does not actually arrive in the City Clerk's Office by the date and time of the bid opening will be rejected as non -responsive, even if properly addressed or delivered to another City Department. Your bid MUST be addressed and delivered as follows: City of Roseville Attn: Sonia Orozco, City Clerk 311 Vernon Street Roseville, CA 95678 Please print "RFP — Fire / Rescue Billing Services" on the outside of the envelope for identification and sorting purposes. Attachment Page 1 TERMS AND CONDITIONS OF INVITATION FOR BID Road carefully 1. GENERAL CONDITIONS Bidders are required to submit their proposals upon the following conditions: (a) Bidders shall thoroughly examine the drawings, specifications, schedule, instructions, and all other documents (b) Bidders shall make all investigations necessary to thoroughly inform themselves regarding plant and facilities for delivery of material and equipment as required by the bid conditions. No plea of ignorance by the bidder of conditions that exist or that may hereafter exist as a result of failure or omission on the part of the bidder to make the necessary examinations and investigations, or failure to fulfill in every detail the requirements of the contract documents, will be accepted as a basis for varying the requirements of the City or the compensation to the vendor. (c) Bidders are advised that all City contracts are subject to all legal requirements provided for in the City Charter and/or applicable City ordinances, Uniform Commercial Code of California, and other applicable state and federal statutes. (d) No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or shall be financially interested, directly or indirectly, in the sate to the City of any materials, supplies, or service, except on behalf of the City as an officer or employee. This prohibition extends to the City boards and commissions other than those which are purely advisory 2 PREPARATION OF BIDS Bids will be prepared in accordance with the following: (a) All information required by the bld form shall be furnished. The bidder shall print or type his name and manually sign the schedule and each continuation sheet on which an entry is made_ (b) Unit prices shall be shown; and where there is an error In extension of price, the unit price shall govern. (c) Alternate bids will not be considered unless authorized by the Invitation For Bids. {d) Proposed delivery time must be shown and shall include Sundays and holidays. (e) Bidders will not include federal taxes in bid prices since the City of Roseville is exempt from payment of such taxes An exemption certificate will be signed where applicable upon request 3 DESCRIPTION OF SUPPLIES Any catalog or manufacturer's reference used in describing an item is merely descriptive and not restrictive unless otherwise noted and is used only to indicate type and quality of material Bidders are required to state exactly what they intend to furnish, otherwise they shall be required to furnish the items as specified. 4. SUBMISSION OF BIDS {a) Bids and changes thereto shall be enclosed in sealed envelopes addressed to the Clty Clerk, City of Roseville. The name and address of bidder, the date and hour of the bid opening, and the material or services bid on shall be placed on the outside of the envelope. (b) Bids must be submitted on the forms furnished. Telegraphic bids, including bids transmitted by facsimile means, will not be considered. Bids, however, may be withdrawn by telegraphic or facsimile notice provided such notice is received prior to the time and date set for the bid opening. lc) Samples, when required, must be submitted within the time specified at no expense to the City of Roseville. It not destroyed or used up during testing, samples will be returned upon request at the bidder's expense. 5. REJECTION OF BIDS (a) The City may reject a bid if: 1. The bidder misstates or conceals any material fact in the bid or if, 2_ The bid does not strictly conform to law or the requirements of the bid or if, 3.. The bid Is conditional, except that the bidder may qualify his bid for acceptance by the City on an "Ali or None" basis or a "Low Item" basis. An "All or None" basis bid must include all items upon which bids are invited. (b) in tha avant that a bidder is or subsequently becomes delinquent in the payment of his or its City taxes, including state and local sales tax, such fact shall constitute grounds for rejection of the bid, or if awarded the bid, for cancellation of the contract However, the City reserves the right to deduct arty delinquent taxes from payments that the City may owe to the delinquent bidder as a result of such contract, (c) The City may reject all bids whenever it is deemed in the best interest of the City to do so and may reject any part of a bid unless the bid has been qualified as provided in 5 (a) 3 above The City may waive any minor informalities or irregularities in any bid. 6. WITIiDRAWAL OF BIDS Bids may not be withdrawn after the time set for the bid opening, unless approved by the City Council 7 LATE BIDS OR MODIFICATIONS Bids and modifications received after the time set for the bid opening will not be considered Page 1 of 2 Attachment Page 2 8. CLARIFICATION OR OBJECTION TO 81D SPECIFICATIONS if any person contemplating submitting a bid for this contract is in doubt as to the true meaning of the specifications, other bid documents, or any part thereof, he may submit to the Central Services Manager on or before five days prior to scheduled opening a request for clarification All such requests for information shall be made in writing, and the parson submitting the request will be responsible for its prompt delivery. Any interpretation of the bid, if made, will be made only by Addendum duly issued A copy of such Addendum will be mailed or delivered to each person receiving a set of bids. The City will not be responsible for any other explanation or interpretation of the proposed bid made or given prior to the award of the contract Any objections to the specifications and requirements as set forth in this bid must be filed in writing with the Central Services Manager on or before five days prior to scheduled opening 9. DISCOUNTS (a) Prompt payment discounts will be considered in making the award provided the discount offered is sufficient to permit payment within such period in the regular course of business. (h) In connection with any discount offered, time will be computed from the date of receipt of supplies or serves, or from the date a correct invoice is received, whichever is the later date. Payment is deemed to have been made on the date of mailing of the check. 10 AWARD OF CONTRACT (a) The contract will be awarded to the lowest responsible bidder whose bid, conforming to the Invitation For Bids, is most advantageous to the City, price and other factors considered. The City may determine price based upon the cost to the City over the expected useful life of the materials or supplies. (b) The City reserves the right to accept any item or group of items of this bid, unless the bidder qualifies his bid by specific limitations. Re Par. 5 (a) 3 above. (c) A written award of acceptance mailed or otherwise furnished to the successful bidder results in binding contract without further action by either party. (d) Prices must be quoted f.a. b. Roseville with all transportation charges prepaid, unless otherwise specified in the Invitation For Bids. (e) Delivery time and prompt payment discounts, including time allowed for payment, win be considered in breaking of tie bids. 11. PERFORMANCE BOND (a) The successful bidder(s) shall furnish the City of Roseville with a performance bond In the amount set forth in the Invitation For bids. This bond is not to be submitted with bid but must be presented to the Purchasing Department upon notification. (b) The City of Roseville will not enter into a contract or issue a purchase order until the successful bidder has complied with the performance bond provisions. (c) The performance bond shall be in a form acceptable to the City Attomey of Clty. (d) The performance bond of the successful bidder(s) shall be returned by the City upon completion of the contract and final acceptance of all items in accordance with conditions thereof. (e) Failure of vendor to perform any of the service required by this contract within ten days of receipt of written demand for performance from City, or failure of vendor to correct or replace defective goods or products within ten days from receipt of written demand therefor, shall constitute a total breach of this contract and shall cause this contract to terminate. In the event of such termination, the performance deposit shall be retained by the City of Roseville as liquidated damages, based upon mutual agreement and understanding between vendor and City at the times this bid is solicited, submitted, and accepted, that the City of Roseville is a government agency engaged in public projects and that the measurement of damages might result from a breach of the terms and specifications herein is difficult or impossible to determine. Provided, however, that if in the opinion of the Central Services Manager and the City Manager the failure to perform the conditions of this contract is occasioned by or is the result of acts or events over which the vendor has no control, said performance bond may in whole or in part, as may be determined bythe Central Services Manager and the City Manager, be returned to the vendor without action by the City Council of the City of Roseville.. tt is understood that such determination shall be entirety at the discretion of the Central Services Manager and the City Manager. 12 ASSURANCE OF COMPLIANCE — EQUAL EMPLOYMENT OPPORTUNITY AND SMALL AND/OR MINORITY BUSINESS ENTERPRISE REQUIREMENTS Bidder agrees that if this bid is accepted, helshe will not engage in employment practices which have the effect of discriminating against employees or prospective employees because of race, religion, national origin, sex, age, handicap, or political belief or affiliation in addition, bidder agrees that he/she will abide by all applicable terms and provisions of the City of Roseville's Affirmative Action Plan, including without limitation the Nondiscrimination Clause and the Small and/or Minority Business Enterprise Clause. as contained in the City of Roseville's current Affirmative Action Plan, on file in the City's Personnel Department Page 2 of 2 Attachment Page 3 CITY OF ROSEVILLE TERMS AND CONDITIONS OF PURCHASE ARTICLE 1- The materials, supplies or services covered by this order shall be furnished by Seller subject to all the terms and conditions set forth in this order including the following, which Seller, in accepting this order agrees to be bound by and to comply with In all particulars and no other terms or conditions shall be binding upon the parties unless hereafter accepted by them in writing Written acceptance or shipment of all or any portion of the materials or supplies, or the performance of all or any portion of the services, covered by this order shall constitute unqualified acceptance of all its terms and conditions. The terms of any proposal referred to in this order are included and made a part of the order to the extent of specifying the nature of the materials, supplies, or services ordered, the price therefor, and the delivery thereof, and then only to the extent that such terms are consistent with the terms and conditions of this order. ARTICLE 11 - INSPECTION. The Materials, supplies or services furnished shall be exactly as specified In this order, free from all defects in Seller's design, workmanship and materials, and, except as otherwise provided in this order, shall be subject to inspection and test by City at alt times and places. If, prior to final acceptance, and materials, supplies or services are found to be defective or not as specified, City may reject them, require Seller to correct them without charge, or require delivery of such materials, supplies, or services at a reduction in price which is equitable under the circumstances. If Seiler is unable or refuses to correct such items within a time deemed reasonable by City, Clty may terminate the order in whole or in part. Seller shall bear all risks as to rejected materials, supplies and services and in addition to any costs for which Seller may become liable to City under other provisions of this order, shall reimburse Clty for all transportation costs, other related costs incurred, or payments to Seller in accordance with the terms of this order for unaccepted materials, supplies and services. Notwithstanding final acceptance, and payment, Seller shall be liable for latent defects, fraud or such gross mistakes as amount to fraud. ARTICLE fl! - CHANGES. City may make changes within the general scope of this order in drawings and specifications for specially manufactured supplies, place of delivery, method of shipment or packing of the order by giving notice to Seller and subsequently confirming such changes in writing. If such changes affect the cost of, or the time required for performance of this order, an equitable adjustment in the price or delivery or both shall be made. No change by Seller shall be recognized without written approval of City. Any claim of Seiler for an adjustment under this Article must be made in writing within thirty (30) days from the date of receipt by Seiler of notification of such change unless City waives this condition Nothing in this Article shall excuse Seller from proceeding with performance of the order as changed hereunder ARTICLE IV -TERMINATION. A City may by written notice stating the extent and effective date Terminate this order for convenience in whole or in part, at any time. City shall pay Seiler as full compensation for performance until such termination: (1) the unit or pro date order price for the delivered and accepted portion; and (2) a reasonable amount, not otherwise recoverable from other sources by Seiler as approved by City, with respect to the undelivered or unaccepted portion of this order, provided compensation hereunder shall in no event exceed the total order price. B. City may by written notice terminate this order for Seller's default, in whole or in part, at any time, if Seiler refuses or faits to comply with the provisions of this order, or so fails to make progress as to endanger performanceanddoes not cure such failure within'a reasonable period of time, or fails to make detrveries of the material or supplies or perform the services within the time specified or any written extension thereof. In such event, City may purchase or otherwise secure materials, supplies or services and except as otherwise provided herein, Seller shall be liable to City for any excess costs occasioned City thereby. If, after notice of termination for default, City determines that the Seller was not in default or that the failure to perform this order Is due to causes beyond control and without the fault or negligence of Seller (including, but not restricted to, acts of God or of the public enemy, acts of City, acts of Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of a subcontractor or supplier due to such causes and without the fault or negligence of the subcontractor or supplier), termination shall be deemed for the convenience of City, unless City shall determine that the materials, supplies, or services covered by this order were obtainable from other sources in sufficient tinie to meet the required delivery schedule. C. If City determines that Seller had been delayed in the work due to causes beyond the control and without the fault or negligence of Seller, City may extend the time for completion of the work called for by this order, when promptly applied for in writing by Seller; and if such delay is due to failure of City, not caused or contributed to by Seller, to perform services or deliver Page 1 of 2 Attachment Page 4 CITY OF ROSEVILLE TERMS AND CONDITIONS OF PURCHASE ARTICLE I - The materials, supplies or services covered by this order shall be furnished by Seller subject to all the terms and conditions set forth in this order including the following, which Seller, In accepting this order agrees to be bound by and to comply with in all particulars and no other terms or conditions shall be binding upon the parties unless hereafter accepted by them in writing. Written acceptance or shipment of all or any portion of the materials or supplies, or the performance of all or any portion of the services, covered by this order shall constitute unqualified acceptance of all its terms and conditions. The terms of any proposal referred to in this order are included and made a part of the order to the extent of specifying the nature of the materials, supplies, or services ordered, the price therefor, and the delivery thereof, and then only to the extent that such terms are consistent with the terms and conditions of this order. ARTICLE 11 - INSPECTION. The Materials, supplies or services furnished shall be exactly as specified in this order, free from all defects in Setter's design, workmanship and materials, and, except as otherwise provided in this order, shall be subject to inspection and test by City at all times and places. tf, prior to final acceptance, and materials, supplies or services are found to be defective or not as specified, City may reject them, require Seiler to con-ect them without charge, or require delivery of such materials, supplies, or services at a reduction in price which is equitable under the circumstances. If Seller is unable or refuses to correct such items within a time deemed reasonable by City, City may terminate the order in whole or in part. Seiler shall bear all risks as to rejected materials, supplies and services and in addition to any costs for which Seller may become liable to City under other provisions of this order, shall reimburse City for all transportation costs, other related costs incurred, or payments to Seller in accordance with the terms of this order for unaccepted materials, supplies and services. Notwithstanding final acceptance, and payment, Seller shall be liable for latent defects, fraud or such gross mistakes as amount to fraud. ARTICLE 11I - CHANGES. City may make changes within the general scope of this order in drawings and specifications for specially manufactured supplies, place of delivery, method of shipment or packing of the order by giving notice to Seller and subsequently confirming such changes in writing. If such changes affect the cost of, or the time required for performance of this order, an equitable adjustment in the price or delivery or both shall be made. No change by Seller shall be recognized without written approval of City. Any claim of Seller for an adjustment under this Article must be made in writing within thirty (30) days from the date of receipt by Seller of notification of such change unless City waives this condition. Nothing in this Article shall excuse Seller from proceeding with performance of the order as changed hereunder. ARTICLE IV - TERMINATION. A. City may by written notice stating the extent and effective date. Terminate this order for convenience in whole or in part, at any time. City shall pay Seller as full compensation for performance until such termination: (1) the unit or pro date order price for the delivered and accepted portion; and (2) a reasonable amount, not otherwise recoverable from other sources by Seller as approved by City, with respect to the undelivered or unaccepted portion of this order; provided compensation hereunder shall in no event exceed the total order price. 8. City may by written notice terminate this order for Seller's default, in whole or in part, at any time, if Seller refuses or fails to comply with the provisions of this order, or so fails to make progress as to endanger performance and does not cure such failure within a reasonable period of time, or fails to make deliveries of the material or supplies or perform the services within the time specified or any written extension thereof in such event, City may purchase or otherwise secure materials, supplies or services and except as otherwise provided herein, Seller shall be liable to City for any excess costs occasioned City thereby_ If, after notice of termination for default, City determines that the Seller was not in defauh or that the failure to perform this order is due to causes beyond control and without the fault of negligence of Seller (including, but not restricted to, acts of God or of the public enemy, acts of City, acts of Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of a subcontractor or supplier due to such causes and without the fault or negligence of the subcontractor or supplier), termination shall be deemed for the convenience of City, unless City shall determine that the materials, supplies, or services covered by this order were obtainable from other sources in sufficient time to meet the required delivery schedule C. If City determines that Seller had been delayed in the work due to causes beyond the control and without the fault or negligence of Seller, City may extend the time for completion of the work called for by this order, when promptly applied for in writing by Seller; and if such delay is due to failure of City, not caused or contributed to by Seller, to perform services or deliver Page 1 of 2 Attachment Page 5 CITY OF ROSEVILLE REQUEST FOR PROPOSALS [FORMAL_ RFP — FIRE l RESCUE BILLING SERVICE RFP Issued Telephone: 916-774-5800 By: Roseville Fire Department Fax: 916-774-5810 401 Oak Street #402 Roseville, CA 95678 Date Issued: March 10, 2009 Page No 1 No of Pages 14 Proposals, subject to the Terms and Conditions of this Request for Proposals and the accompanying Schedule, other contract provisions, specifications, drawings, or other data as are attached or incorporated by reference in the Schedule, will be received at the City of Roseville Clerks Office, Attention: Sonia Orozco, City Clerk, 311 Vernon Street, Roseville, CA 95678, until 3:00 p.m., Pacific Time on Tuesday, March 24, 2009, for Fire / Rescue Billing Services. Bid bond is not required. General information and instructions to bidders are contained in the terms and conditions on the attached pages. SCHEDULE Please submit your proposal for Fire l Rescue Billing Services for the City of Roseville Fire Department the attached specifications, terms, conditions and proposal forms Complete and return This page along with the Proposal Section (Appendix 3, Fees and Payments) in TRIPLICATE. Proposals will be evaluated in accordance with evaluation criteria, including overall cost, RFP responsiveness, experience, as defined in the attached specifications to determine which proposal best meets the needs DO NOT INCLUDE SALES TAX IN YOUR PROPOSAL in accordance with and related of the City the City Support Services by Note: 1 You MUST submit an original proposal response and two copies. that it is visible when delivered to Kevin Dickson, Division Chief than Friday, March 20, 2009 2 Print the RFP name on the outside of the package or envelope so 3. Direct all questions regarding this inquiry to Roseville Fire Department, fax (916) 774-5800 or e-mail, kdickson@roseville ca.us by no later In compliance with the above, the undersigned offers and agrees to furnish any or all of the items or services enumerated on which prices are quoted at the unit price set opposite each item and deliver them at the designated point(s) within the time specified BIDDERS MUST COMPLETE THE FOLLOWING: Name and Address of Bidder: Signature of Person Authorized to Sign Bid: Date of Bid: BIDDER TO INDICATE STATUS, AS TO: "PARTNERSHIP", "CORPORATION" "SOLE PROPRIETORSHIP", ETC Type or Print Signer's Name, Title & Phone No Attachment Page 6 REQUEST FOR PROPOSAL CITY OF ROSEVILLE, CALIFORNIA Billing for Fire/Rescue Services City of Roseville Fire Department 401 Oak Street, #402 Roseville, CA 95678 1 Attachment Page 7 1. Project Description The City of Roseville is seeking a Billing for Services provider to begin or enhance cost recovery for fire and rescue efforts. 2. Narrative The project being undertaken by this RFP is to secure the professional services of an outside agency to assist in the cost recovery of emergency fire/rescue responses and extrication services provided by the City of Roseville Fire Department during a motor vehicle accident incident involving non -city residents. The successful proposal should address forms and procedures to be used by first responding units, procedures necessary for submitting claims to winning bidder, procedures outlining full accountability and tracking of all claims, and remittance procedures to the city. The proposal will be evaluated on the basis of ease of integration with current city procedures and policies. Also to be considered will be the bidder's technical ability and knowledge of all laws and regulations as they apply to the city. 3. Goals/Objectives • Recover cost for services provided as allowed by City Ordinance. • Develop a working relationship with a creditable service provider. • Provide a seamless method for cost recovery. • Provide for cost recovery without diminishing the integrity of the City of Roseville. • Provide for a systematic and standard recovery process. 4. Scope of Services a. A detailed proposal for rescue cost recovery will be delivered to the City for consideration. b. The effectiveness of the cost recovery and the competence of the agency will be successfully demonstrated to the City. c. The cost recovery procedures will be successfully implemented and be subject to an annual review. 5. Evaluation Criteria The city will use the following criteria in its process of evaluating the proposals, selecting a plan and awarding a contract. 2 Attachment Page 8 A. Preparation and Presentation Material is presented in a logical and comprehensive manner. B. Responsiveness The proposal must address each issue of concern to the City as specified in this RFP. C. Competence The agency must satisfactorily demonstrate an understanding of the scope and objective of this project, as well as a high level of competence in the provision of recovery services, based on service capabilities. D. Personnel Qualifications The management and personnel assigned to this project have experience in the provision of revenue recovery. E. Cost of Service The cost of providing the recovery service as well as any additional costs fees, or expenses for which the agency would seek payment. F. Accessibility Employees must be accessible to the City, insurance company and client inquiries. G. Documentation Ease of City staff with communicating, receiving, maintaining and interpreting records and reports. Vendor shall provide a plan for training of City staff and provide sample user documentation. H. Location The physical location of the company headquarters in regards to, A) on -site response time and, B) tax income being retained in the State of California and benefiting the State of California. 6. Negotiation Reauirement The agency whose proposal is accepted may be required to participate in negotiations concerning the fee structure, the length of the contract and the extent of the professional services to be provided. Any contract between the City and the agency selected shall contain the results of any negotiations between the two .parties, and such negotiated terms shall supersede any contrary specifications contained in this request for proposals,: Attachment Page 9 7. Term of Contract This contract for insurance claim recovery services is intended for an initial two (2) year period, with a renewal option for two (2) additional two-year periods to be negotiated with the selected agency. This contract is subject to annual performance review. Cancelation of the contract procedures and notification will be negotiated prior to contract award. 8. Other Public Agencies Bidder agrees to offer the City of Roseville and other public entities, public utilities, or non-profit public benefit corporations the item(s), service(s) and price(s) quoted herein, under the same terms and conditions of this RFP, for a period of up to one (1) year. SPECIFICATIONS FOR ENTERING PROPOSALS 1. SUBMISSION OF PROPOSAL: Proposals must be received in a sealed envelope marked "RFP Billing for Fire/Rescue Services." An original and two (2) copies are to be submitted. Proposal must be submitted to: City of Roseville Attn: Sonia Orozco, City Clerk 311 Vernon Street Roseville, CA 95678 Proposals must be received no later than 3:00 p.m. Tuesday, March 24, 2009. 2. POINTS OF VARIANCE: These specifications are considered by the City as most desirable, but alternate proposals equal to or substantially complying with these specifications are invited and shall be considered whenever such action is in the best interest of the City. These variances shall be stated in detail either on the bid sheet, where applicable, or on a separate sheet of paper. 3. Companies shall submit descriptive literature and any other data pertinent to their proposal. 4. The agency must be duly licensed to operate within the City of Roseville. 4 Attachment Page 10 5. SUBJECT OF PROPOSAL: The successful agency will provide Revenue Recovery Run Sheet Forms (paper and electronic versions) and will use them to produce and submit invoices to various insurance companies for insurance recovery. A complete accounting of claims which are uncollectible shall be included in all reports. 6. Vendor must have the ability to bill for Fire Calls for Service related to motor vehicle accident response and scene mitigation. 7. The contract award shall be for an initial period of two (2) years, with an annual performance review and the option to renew for two (2) additional two-year periods to be negotiated with selected firm. 8. Company shall provide on -site training at the inception of the program and regular on -site follow-up training for new hires and/or to rectify issues, questions, or any other concerns. Training shall be conducted on a 48/96, 3 platoon shift schedule during regular business hours. Class will not exceed 3 hours in length. 9. Company shall provide the name, address, contact person, and telephone number of at least three (3) other districts, cities and/or municipalities for which similar services have been provided. 10. Failure to follow proposal specifications shall be reason for rejection of any bid proposal. Vendor Proposal Requirements (vendor to confirm or answer each in the formal bid): a) Describe the fees that would be charged by your firm to provide insurance recovery service. The fees should be stated as a flat percentage of funds collected, or as a flat rate per account, plus any additional charges or expenses for which your firm would expect to be reimbursed. b) Proposal shall include any optional, additional or recommended services and their respective price. c) Vendor will provide a sample contract and an explanation of its pricing structure for the City to review. Pricing should include billing for services and any other vendor fees. d) Vendor shall submit its' average collection percentage rate. 5 Attachment Page 11 e) Vender shall bill insurance companies based on policies and guidelines stipulated by Roseville City Ordinance #4716. (Appendix #1) f) Vendor shall bill insurance companies at rates approved by the City of Roseville Fire Department as stipulated by the Motor Vehicle Accident Cost Recovery Fee Schedule. (Appendix #2) g) In the event of a dispute, the vendor will provide a report on claims and disputes. h) Vendor will list the specific information necessary to produce and bill a claim (i.e.: name of individual, driver's license number, etc.). i) Vendor must have a password -secured website that supports secure claim submission over the Internet and which allows authorized personnel to view reports related to the claims i.e., "account aging" and "payments received". j) Vendor website shall have two levels of security access. One level for Run Sheet submission and a higher level for view/downloading reports. k) Vendor will provide on-line electronic file lookup and be able to accept information from the City via email, fax, or from an electronic format. 1) Vendor will provide custom reports and data exports on any data fields upon request within 5 business days of the request being received. Requests for custom reports can be received through email, fax or common carrier. Vendor must be able to provide Reports bv: Selecting a date range Daily Monthly Quarterly Annually Year to Date Districts Station Type of Service Performed Other Reports Required of Vendor: 6 Attachment Page 12 Accounts Receivable Aging Month End Statements Billing and Claims m) Vendor will ensure daily backups are stored in a secure safe location. n) Vendor will describe the security measures used and provide adequate assurances of safeguards of the confidentiality of records. o) Vendor will mail all checks to the City of Roseville on or before the 7tn of each month for all billable runs/invoices received the prior month. If requested by the City of Roseville, vendor will make direct electronic deposits into the city's designated bank account. p) Vendor will provide communications only to the designated City representative(s) for the Client. q) Vendor will allow local, on -sight inspections of records and deposits by designated City personnel and/or City external audit firm. r) Vendor will provide an orientation for all personnel and training for administrative personnel on the system setup and procedures as well as provide customer service and onsite training free of charge to the City staff regarding billing questions, fielding of complaints, setup of files and reporting requirements. s) Vendor will provide initial onsite training for all line -personnel and office staff on an on -going basis as well as for new -hires. t) Vendor will have knowledge of fire service terminology in order to field billing customer complaints and assist City staff. u) Vendor will provide it's regular business hours maintained (PST).. v) Describe the computer system used in your operations, including the software for your collection system. 7 Attachment Page 13 r1 CITYOF "ai ROSEVILLE CALIFORNIA COUNCIL COMMUNICATION City Clerk Use Only DATE: February 4, 2009 TITLE: Non -Resident Motor Vehicle Accident Cost Recovery Ordinance CONTACT: Fire Chief Ken Wagner x5825 (kwagneraroseville.ca.us) Division Chief Kevin Dickson x5871 (kdickson@roseville.ca.us) Meeting Date: February 18, 2009 SUMMARY RECOMMENDATION The Fire department recommends council approve the attached ordinance allowing the billing of vehicle accident response and services performed by the Fire Department. The ordinance limits the billing to only insurance carriers of those involved parties living outside of the Roseville city limits. BACKGROUND Current policies, codes and ordinances allow the Fire Department to submit bills for service to responsible parties under circumstances such as; incidents where the driver is determined to be driving under the Influence (DUI), significant release of hazardous materials and significant fires that are determined to be caused by negligence. Most, if not all automobile insurance companies have provisions in their policies stipulating payment to fire departments for emergency response and services provided at vehicle accidents.. The trend in our area and throughout the country is to bill for these services directly to the insurance carriers. Even though it is permissible to bill all involved parties this ordinance specifically specifies billing for services to involved parties that reside outside of Roseville city limits and further specifies the billing be directed to insurance carriers only with no direct billing to involved parties. Several vendors have been identified that specialize in the billing and collection of these types of fees. With the adoption of this ordinance the fire department will call for proposals from qualified vendors and return to council with a bid award and contract approval. The attached fee schedule was prepared utilizing current salary tables, equipment cost and average times typically associated with these types of events. The schedule will be evaluated each year and adjusted appropriately. Data will be collected by fire personnel at the time of the accident and submitted to the approved vendor for billing. FISCAL IMPACT Based on 2008 calendar year vehicle accident statistics it is estimated this program will generate $100,000.00 to the general fund annually. ENVIRONMENTAL REVIEW The adoption of the attached ordinance is not considered a "project" as defined by the California Environmental Quality Act (CEQA) (CEQA Guidelines §15378) Consequently no CEQA action is required. Attachment Page 14 Non -Resident Motor Vehicle Accident Cost Recovery Ordinance Council Meeting of October February 18, 2009 — Page 2 RECOMMENDATION Staff recommends the adoption of the attached ordinance and directs the Fire Chief to request proposals from qualified venders to provide the billing services as specified Respectfully Submitted, Ken Wagner (Fire Chief) APPROVED: W. Craig Robinson City Manager Attachment Page 15 ORDINANCE NO Appendix No. 1 ESTABLISIIING AND IMPLEMENTING A PROGRAM TO CHARGE USER FEES FOR THE DEPLOYMENT OF PUBLIC SAFETY SERVICES RENDERED BY THE CIIY OF ROSEVIL.LE WHEREAS, additional demands are placed on all operational aspects of the F ire Department by the increasing need for Emergency Services response activity to incidents on the highways; and WHEREAS, the Fire Department has investigated different methods to maintain a high level of quality of emergency service capability throughout times of constantly increasing service demands, where maintaining an effective response by the Fire Department decreases the costs of incidents to insurance carriers through timely and effective management of emergency situations, saving lives and reducing property and environmental damage; and WHEREAS, raising real property tax to meet the increase in service demands would not be fair to the property owners, when a high percentage of Motor Vehicle Accidents (MVA) involve individuals not owning property or paying taxes in the jurisdiction; and the ability of the Fire Department to effectively respond decreases the liability of insurance companies by saving lives and minimizing vehicle damage and environmental loss; and WHEREAS, the City of Roseville desires to implement a fair and equitable procedure by which to collect said MVA fees and establish a billing system in accordance with applicable laws, regulations and guidelines; TIIE CITY OF ROSEVILLE ORDAINS: SECTION 1. Chapter 9 27 of Iitle 9 of the Roseville Municipal Code is hereby added to read as follows: 9.27.010 Motor Vehicle Accident Cost Recovery A The City of Roseville shall initiate user fees for the delivery of Fire and Rescue Services, personnel, supplies and equipment to the scene of motor vehicle accidents and other incidents within the City of Rosevillethe rate of user fees shall be that which is usual, customary and reasonable, which may include any services, personnel, supplies, and equipment and with baseline rates established by Council Resolution. Ihese user fees will only apply to persons not residing within the City of Roseville. Responses involving intoxicated drivers will continue to be billed pursuant to California Vehicle Code section 53150 B. the fees shall be billed to the motor vehicle insurance carrier for all vehicles involved in the motor vehicle accident or incident, representing an add -on cost of the claim for damages of the vehicles, property and/or injuries Attachment Page 16 C. All amounts collected as a result of this Ordinance shall be placed into the General Fund and may be used for any lawful purpose SECTION 2. This ordinance shall be effective at the expiration of thirty (30) days from the date of adoption SECTION 3. If any section or provision of this Ordinance is declared by the courts to be invalid, such decision shall not invalidate any other section or provision of this Ordinance SECTION 4. the City Clerk is herby directed to cause this ordinance to be published in full at least once within fourteen (14) days after it is adopted in a newspaper of general circulation in the City, or shall within fourteen (14) days after its adoption cause this ordinance to be posted in full in at least three (3) public places in the City and enter in the Ordinance Book a certificate stating the time and place of said publication PASSED AND ADOPIED by the Council of the City of Roseville this day of , 20 , by the following vote on roll call: AYES COUNCIL MEMBERS: NOES COUNCIL MEMBERS: ABSENT COUNCILMEMBERS: ATTES T: City Clerk 2 MAYOR Attachment Page 17 Providing Funds to Our Fire Departments www.firerecoveryusa.com March 20, 2009 City of Roseville ATTN: Sonia Orozco, City Clerk 311 Vernon Street Roseville, CA 95678 Formal Bid for Billing for Fire Rescue Services Dear City of Roseville: The following is our Formal Bid for Billing for Rescue/Cost Recovery for the City of Roseville Thank you for taking the time to consider our system for your city. We currently have a business license in the city of City of Roseville. Subject of Proposal: We bill on your behalf, for the services you provide during an incident. You can choose which of the many services you'd like us to bill for, which currently include: Motor Vehicle Accidents (MVAs), Vehicle fires, Structure fires, Marine Vessel fires, Hazmat calls, False Alarms, Bomb Squad calls, Gas Pipeline Repair/Supervision services, Arson Investigations, and Environmental Clean-up services_ We will bill at the rates defined by the Roseville City Ordinance #4716. Although billing for fire services sounds simple, how we generate our high recovery rate is very sophisticated. Some Fire Departments do perform in-house billing; unfortunately, they typically see a low recovery rate (between 10-15 percent). This low rate can be attributed to the fact that insurance companies are experts at not paying and the typical Fire Department or city is not equipped in the field of insurance billing. We use advanced methods resulting in a proven higher recovery percentage (historically over 70%), which is the best in our industry. So what makes us different? We have several interesting techniques in our system including methods that we've developed during our years of billing experience that informs insurance companies of their fiscal responsibilities. While this alone would guarantee us to equal or exceed our competitors, the real basis for our high recovery percentage is our ability to gather the 219 Vernon Street Phone 888-640-7222 Roseville, CA 95678 Fax 916-290-0542 Attachment Page 18 necessary information to recover funds for a call that would otherwise be written off as unrecoverable by others_ What our clients really appreciate is our ability to track down the necessary information of those persons involved in the incidents. We have investigative techniques (both live and software -based) that allow us to find most of the necessary facts. In addition, we require the least amount of information from the Fire Departments to create a bill (name of individual, car license number, and the name of the insurance carrier) - that's it! We believe that this is our responsibility and not the Fire Department's. We are the only fire service billing company in association with the International Association of Fire Chiefs. As such, we will provide one yearly membership in the [AFC for each year our contract with the City of Roseville is in force. Bottom line: if you employ our billing service, you will enjoy, not only our excellent customer service and training, but also be confident you have the highest recovery percentages possible. How It Works: Our system is very simple. Run submission can be done in one of two ways: 1. Upon return to the station, you can fax our one -page Run Sheet. 2. Upon return to the station, you can submit the run using our Online Run Submission site. Once submitted we go to work in claim recovery. The status of each run is available 24/7 online on our password protected site to allow you to forecast incoming funds and plan for their use. On or before the 7`t' of each month, we'll mail to the City of Roseville, a check for all payments received prior to the prior month's cut-off date (typically the 24"'), minus our collection fee. This will also include an itemized breakdown of what runs the check is paid against. As an option, we can collect the checks (so we could verify they've been received and confirm to our collection team to stop attempting to collect), and then mail to you or deposit directly into your account. Each month you would receive a bill from us for our fee portion. Although this is additional work for you, it is an option you can choose now or in the future. We would provide on -site training to your personnel and new -hires assigned to submit the runs to us. This training would be conducted on a 48/96, 3 platoon shift during regular business hours and encompass both filling out and faxing the runs sheets to us as well as using our Online Run Submission system. It is an extremely simple process (training is less than 2 hours), however, we will insure all those taking part in our program are fully trained and competent with our procedures. Attachment Page 19 Term of the Contract: The initial term of the contract is two (2) years, with an annual performance review and the option to renew for two (2) additional two-year periods_ Personnel and Leadership Team: Fire Recovery USA, LLC evolved over a period of several years. Although the current company was formed in early 2007 with the addition of a third partner and the relocation of our headquarters, it was birthed from the original Fire Recovery USA which began in late 2006. Several years ago, Troy Walsh, one of our founders, recognized that fire departments throughout the country were facing declining budgets. Being from the fire service, he wanted to find some way to help replace those funds. During his investigation, he found that some fire departments have been billing for some of their services for over a decade. For two years, he looked into the legality of the concept, interviewed the major players in the industry, and asked why every department doesn't bill. He found that most fire departments are simply unaware of their right to bill, or that those that do bill "in house" have extremely low collection percentages. He also learned that private collection companies, while much better, left a lot of room for improvement. A search began for a team of individuals who would have the necessary skills to put together a fund recovery program that would be like any other. The goal was a company that could offer both the best customer service and the highest funding percentage in the industry. Troy's desire was to meet the needs of fire departments to improve their capabilities through increased funding, and therefore provide better equipment, more manpower, etc. After exploring the business operation and legalities, he invited Mike Rivera to be part of the team in order to develop the business plan and to pull the various business components together. Mike has over 18 years of experience in starting, growing, managing, and developing businesses. Not only was Mike immediately taken with the concept, but, after investigating the industry, saw a real way for Fire recovery to be superior to any other similar service in the industry. We moved slowly and strategically. We made sure not to promise anything we couldn't deliver. We wanted to see our estimates exceeded on a regular basis, so we took our time developing the best team possible. Mike had a relationship with Greg Schmidt, a businessman with over 15 years experience in the collections field. Although Greg is an owner/partner in several successful companies, his main business, VGS Associates, has developed large ($100 million plus) accounts in contingency billing and collections with a client base of primarily Fortune 500 companies. Bringing him in as a partner in the operations side of the company also brought his management team. Greg's team includes Rick Benner as head of our Business Operations. Rick, the former President of the Sacramento Kings basketball team, has 19 years experience in operations and finance. His tenure with the Kings also included stints as Chief Operating officer, Executive Vice President, and Vice President of Finance. Attachment Page 20 Our team also includes Lindsey Buchanan who oversees our collection department and spearheads our on-line reporting (where the Fire Chiefs have access 24/7 to what bills have been submitted, where they are within the collection process, and when they can expect payment). Of course, we also have accounting and legal teams, as well as local support employees (marketing, collections, administration, etc.) in our main office in Roseville, California. Through our local organization and nationwide affiliates, we have over 120 representatives nationwide to provide sales, training, and support. California Clients & References: City of Pinole Fire Department Jim Parrott 880 Tennent Ave. Pinole, CA 94564 (510) 724-8974 Foresthill Fire Protection District Keith Drone P.O. Box 1099 Foresthill, CA 95631 (530) 367-2465 Nevada County Consolidated Tim Fike 11329 McCourtney Road Grass Valley, CA 95949 (530) 273-3158 Penryn Fire Mitch Higgins 7206 Church St. Penryn, CA 95663 (916) 663-3389 Pioneer Fire Peter Shurville 7061 Mount Aukum Road Somerset, CA (530) 620-4444 Attachment Page 21 North County Fire Bill Metcalf 330 So. Main St. Fal!brook, CA 92028 (760) 723-2012 City of Upland Michael Antonucci P.O. Box 460 Upland, CA 91785 (909) 931-4180 Montezuma Fire District Joe Rosewall 21 N 4th Street Rio Vista, CA 94571 (707) 374-5962 Olancha Cartago Fire Steve Davis PO Box 64 Olancha, CA 93549 (760) 793-0111 Loomis Fire ProL Dist. Barbara Leak PO Box 606 Loomis, CA 95650 (916) 652-6813 Sutter -Basin Fire Dept. Sam Martin PO Box 68 Robbins, CA 95676 (530) 681-5218 Attachment Page 22 Personnel In our Roseville, California facility: • Troy Walsh — VP of Sales • Mike Rivera — VP of Business Development • Greg Schmidt — VP of Operations • Rick Benner — COO • Lindsay Buchanan — Recovery Division Mgr. • Chris Valenzuela — Sales Account Representative • Kathy Valenzuela — Sales Account Representative In addition, we have over 110 sales and training support personnel in the following regions: • Atlanta, GA • Anchorage, AK • Washington, D.C. • Englewood, CO • Indianapolis, IN • Exton, PA • Fremont, NE - Highland, NY • Houston, TX • Williamsport, MD • Tempe, AZ • Chesapeake, VA • Vancouver, WA • Charlotte, NC Personnel Specifically Assigned to City of Roseville: Chris Valenzuela — Account Representative and Training. chris@firerecoveryusa.com - 916-223-2511 Lindsay Buchanan — Recovery and Training_ lindsay@firerecoveryusa.com - 916-789-1283 Troy Walsh — Account Manager. troy@firerecoveryusa.com - 916-789-1525 Attachment Page 23 Vendor Proposal Requirement Questions: a) Our fees are 20% of only the monies we collect for the City of Roseville. There are no other charges or hidden costs. b) At this time, there are no other services offered other than billing services. Our current billing services include: Motor Vehicle Accidents (MVAs), Vehicle fires, Structure fires, Marine Vessel fires, Hazmat calls, False Alarms, Bomb Squad calls, Gas Pipeline Repair/Supervision services, Arson Investigations, and Environmental Clean-up services. c) See sample contract (attached). d) Our Recovery Department has a collection rate of over 70% based on "billable" MVA runs. We consider a run "billable" if the person involved has current insurance coverage and is the driver "at -fault". We have consistently maintained this collection percentage for over one year. e) Affirmed. f) Affirmed. g) Affirmed. h) The minimum information needed is three items: individual's name, individual's address or phone number, and the name of the insurance provider. Additional information is helpful and can increase the collection rate, but is not necessary. i) Affirmed. j) Affirmed. k) Affirmed. I) Affirmed_ m) All electronic records are kept off -site in a secure server. You will find additional information on our software and computer system below, however, here is the specific information on Daily Backups and Fail -Safes: • Entire server facility on UPS • 2 Layers of diesel generators • Redundant Ethernet links • Compact zone dry pipe fire suppression Our production files are backed -up nightly with weekly off -site storage. In addition to servers in Texas we have secondary access to a server in Oakland, CA. Attachment Page 24 n) Our official policy is that no confidential information will be released to anyone other than the password protected person(s) authorized by the City of Roseville and the insurance company(s) involved in the incident. Our Internal Control Policy is only those employees in our Recovery Department who are authorized to input and track claims will have access to confidential information on any claims and the individuals involved in the claims. o) Affirmed. p) Affirmed. q) Affirmed. r) Affirmed. s) Affirmed. We provide unlimited, live, on -site training to all personnel now and in the future. This training would be conducted on a 48/96, 3 platoon shift during regular business hours and encompass both filling out and faxing the runs sheets to us as well as using our Online Run Submission system. It is an extremely simple process (training is less than 2 hours), however, we will insure all those taking part in our program are fully trained and competent with our procedures. We can respond quickly to any issues you have (in person, if necessary, as our office is five minutes away). t) Affirmed. u) Normal office hours in our Roseville, CA facility are 8am (PST) to 5pm (PST), Monday through Friday. v) Our computer system is as follows: HARDWARE AND SOFTWARE INFRASTRUCTURE: Software — custom written to our proprietary collection system. • Programming Language - PHP • Database - MYSQL Servers • Dell Dual Xeon 3.0 • 2x2MB cache • 4GBRAM • 6x36gb 15krpm SCSI • RAID50 • Managed backup for up to 1 TB • Shared firewall • Fully Managed 24x7 support Data Center — Security features • 5 layers of biometric locks Attachment Page 25 • 24/7 Video recording with 30-day retrieval • 24/7 Multi -man security • Self -powered kinetic locks on each cabinet with individual codes Backups and Fail -Safes • Entire facility on UPS • 2 Layers of diesel generators • Redundant Ethernet links • Compact zone dry pipe fire suppression Our production files are backed -up nightly with weekly off -site storage. In addition to servers in Texas we have secondary access to a server in Oakland, CA. System Implementation Plan: Unless directed otherwise by the City of Roseville, this will be implemented in the following manner: • We will setup your Online Run Submission Site with passwords. • We will provide our Online Run Submission Training Manual. • We will provide faxable Run Sheets (in the event you choose not to use, or are unable to use the online system). • We will schedule training dates for the personnel you designate as run submission contacts. • We will provide an orientation for all personnel and training for administrative personnel on the system setup and procedures as well as provide customer service and onsite to the City of Roseville staff regarding billing questions, fielding of complaints, setup of files and report run assistance. • We will provide initial onsite training. This training would be conducted on a 48/96, 3 platoon shift during regular business hours and encompass both filling out and faxing the runs sheets to us as well as using our Online Run Submission system. Attachment Page 26 CONCLUSIONS: • City of Roseville will generate approx. $32,400 more NET profit with Fire Recovery (over 32% higher collections at 400 runs per year) versus our competitors. • Fire Recovery offers more services that you can bill for than any our competitors. • Fire Recovery provides lower labor costs to City of Roseville. Your personnel have less work to complete in order to submit a run with Fire Recovery because we require less information from you to process the bills. • We are headquartered in the City of Roseville, making on -site training or support only five minutes away. • Taxable income from Fire Recovery will add to the Roseville and California economy. I look forward to providing your organization with the best solution to your billing program. Rest assured that our program will not only bring new funds to your fire department, but also allow your personnel to focus on their jobs and not have to deal with billing issues — that's our job. Please feel free to email or call if you have any questions or require additional information. Sincerely, Michael Rivera Fire Recovery USA mikerivera@firerecoveryusa.com Attachment Page 27 Revenue Justification Cost of Our Service: We charge 20% of only the funds we collect. There are no other charges whatsoever (training, reporting, etc. is all provided at no charge). While there may be other companies that charge less for their service, allow us to explain why using our service will actually generate higher returns for the City of Roseville. Most of our competitors average about a 30%-50% collection rate while we average over 70%. If we take an example using the following assumptions: • You want to bill approx. 400 calls/year - (based on your data). • The average bill is $600 - (based on actual data and your rates). • Our competitor's collection rate is 50% - (an estimate based on known data). • Our collection rate is 70% - (our actual current rate over the past 12 months). • Our competitor's fee is 15% - (a guess — it may be higher). • Our fee is 20%_ Using Brand X $240,000 billed (400 runs x $600) x 50% Collection Rate x 85% NET (after their 15% fee) = $102,000 NET PROFIT. Using Fire Recovery $240,000 billed (400 runs x $600) x 70% Collection Rate x 80% NET (after our 20% fee) = $134,400 NET PROFIT. CONCLUSIONS: 1. You will generate approx. $32,400 more NET profit with Fire Recovery (about 32% higher earnings). 2. If our competitor's fees are higher than 15%, then you NET even more profit by choosing Fire Recovery. Other Important Cost Items to Consider: • There are no other costs to our service. • We provide unlimited, live, on -site training to all personnel now and in the future. • Less accounting costs for the City of Roseville as we send your payments NET, not Gross with a bill for our services (like some others). • We can respond quickly to any issues you have, in person, (our office is less than an 5 minutes away). Attachment Page 28 ACORD, CERTIFICATE OF LIABILITY • INSURANCE 105E(MMID°zoio . PRODUCER (407)788-3000 FAX (407)788-7933 Insurance Offi ce. of America, Inc. P.O. Box 162207 Altamonte Springs, FL 32716-2207 THIS CERTIFICATE IS ISSUED AS A MATTER.OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON.THE CERTIFICATE 'HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDNGCOVERAGE NAIC # suico FIRE RECOVERY USA, LLC 219 VERNON STREET ROSEVILLE, CA 95678 wsuRERA: Hartford Casualty Ins Co 29424 INsuRER8: Hartford Fire Ins Co 19682 INSLRERc ISG-Pacific Piholesale Brokers PRE INSURER D: INSURER E: • THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN.ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERW OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WERi RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS.AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.. . INSR LTR INSRQ ADD?_ TYPE OF INSURANCE POUCYNIArSER POLICY EFFECTIVE DATETtAMAM/VI POLICY EXPIRATION DATE mom LIMITS A GU]NERALLIABILIiY COMMERCIAL GENERAL LIABILITY 21SBMIG9495 - - - 05/01/2010 05/01/2011 EA HOCC iaRENce $ .1,000,000 DAMAGE TO RENTED PRFMISFS (Fe (rr1AMCeV $ 300,000 CLAIMS MADE X OCCUR AED FXP (My one Parson) $ 10,000 X PERsoINALaADV IIJ:IURY $ 1, 000,000 $ 2,000,000 GENL n GENERAL AGGRE0 .TE ' AGGREGATE LIMIT APPLIES PER: POLICY n JEi F LOC. PRODUCTS - COMPIOP AGG $ 2 , 000, OM .. A AUTOMOBILE LIABILITY ANY AUTO Al OWNED AUTOS SCFEDU.ED AUTOS HIRED AUTOS NON -OWNED AUTOS 21SBMIG9495 05/01/2009 OS/01/2010 . CIXAeMEDSINGLE LIMIT (Ea accident)i,000,000 $ BODILY INJURY (Per person) $ X BODILY INJURY (Per acciden) $ X 1 PROPERTY DAMAGE (Per accident) $ GARAGE AGE LIABILITY ANY AUTO AUTOON.Y - EA ACCIDENT $ —1 OTHER THAN. - EA ACC $ AUTOONLY: AGG $ EXCESSAJMBRELLA LIABIIJTY OCCUR I I CLAIMS MADE DEDUCTIBLE RETENTION E - - - EAC-I OCCURRENCE $ AGGREGATE $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILRY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERMEABER EXCLUDED? " Ir yes, describe undo SPECIAL PROVISIONS aebv 21WECP072S0 . - OS/01/2010 OS/01/2011 - - WC STAID- 0114 TORY I IMRS FR E.L. .EACH ACCIDENT• $. 1,.000, OOO E.L. DISEASE- EA EMPLOYEE $ 1,000,000 E.L. DISEASE- POLICY LIMIT .$ 1, 000, 000 C PrHfessional Liability TBAPAC00000709 05/01/2010 -05/01/2011 $1,000,000 each claim' $1,000,000 aggregate -$5,000 Deductible. DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES) EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Vational City Fire Department is an additional insured per company form 5500080405 as required by written contact. =10 days notice applies for non-payment of premium CERTIFICATE HOLDER Walter Amedee Homeland Security Manager National City Fire Department 1243 National City Boulevard National City, CA 91950 siCORD 25(2001/08) CANCELLATION SHOULD ANY Of THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL. ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LUABILNY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES AUTHORIZED REPRESENTATIVE Daniel Caudill/MASOTJ ©ACORD CORPORATION 1988 Attachment Page 46 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(es) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend; extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) Attachment Page 47 SERVICES AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND FIRE RECOVERY USA, LLC FOR IMPLEMENTING A COST RECOVERY PROGRAM This Services Agreement ("Agreement") is made effective as of May 18, 2010 ("Effective Date"), by and between FIRE RECOVERY USA, LLC, a California limited liability company ("Company"), and the CITY OF NATIONAL, ("City"). The Company and City are referred to herein individually as a "party" and collectively as the "parties." RECITALS WHEREAS, Company engages in the business of performing billing services ("Company Services") for United States Cities in connection with motor vehicle incidents and other emergency incidents at which the fire departments provide emergency services; and WHEREAS, City seeks the services of Company to assist with the billing for services that City provides in connection with motor vehicle incidents and other emergency incidents; and WHEREAS, Company and City desire to enter into this Agreement to memorialize their agreements regarding the Company Services to be provided to City. NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and City agree as follows: ARTICLE 1 ENGAGEMENT 1.1. Engagement: City hereby engages Company to provide the Company Services described in Article 4 herein, and City hereby accepts such engagement, all on the terms and conditions set forth herein. Company will determine the method, detail and means of performing the services detailed below. ARTICLE 2 REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of Company: Company hereby represents and warrants to City that, at all times during the term of this Agreement, Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California. 2.2. Representations and Warranties of City: City hereby represents and warrants to Company that, at all times during the term of this Agreement, City is municipal corporation established pursuant to the laws and ordinances of the state in which City is located. ARTICLE 3 COMPANY STATUS AND QUALIFICATIONS 3.1. Independent Contractor: Company enters into this Agreement, and will remain throughout the term of the Agreement, as an independent contractor. Company agrees that it will not become an employee, partner, agent or principal of City while this Agreement is in effect. 3.2. Payment of Income Taxes: Company is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by City to Company for services rendered under this Agreement. On request, Company will provide City with proof of timely payment. Company agrees to indemnify City for any claims, costs, losses, fees, penalties, interest, or damages suffered by City resulting from Company's failure to comply with this provision. 3.3. Use of Employees or Subcontractors: Company may, at Company's own expense, use any employees or subcontractors as Company deems necessary to perform the services required of Company by this Agreement. City may not control, direct, or supervise Company's employees or subcontractors in the performance of those services. 3.4. Qualifications: Company represents that it is qualified and has the skills necessary to perform the services under this Agreement in a competent and professional manner, without the advice or direction of City. 3.5. Ownership Interest: Company will have no ownership interest in City. 3.6. No Benefit Contributions: Company shall have no obligation under this Agreement to compensate or pay applicable taxes or provide employee benefits of any kind to any person employed or retained by City. 3.7. Attorney -in -Fact: City appoints Company as City's attorney -in -fact for the following purposes: (a) Billing and Collections: To bill and collect ("Collections") all revenue earned by and due to City, in connection with City's provision of emergency services provided/rendered at the sites of motor vehicle incidents and other emergency incidents, and to receive all Collections on City's behalf and to sue for and give satisfaction for monies due on account and to withdraw any claims, suits, or proceedings pertaining to or arising out of Company's or City's right to collect such amounts; and (b) Endorsement: To take possession of and endorse in City's name any notes, checks, money orders, and any other instruments received as Collections. 2 ARTICLE 4 GENERAL RESPONSIBILITIES OF COMPANY 4.1. Minimum Amount of Service: Company agrees to devote as much time and attention to the performance of the Company Services under this Agreement as may be, in Company's sole discretion, required to accomplish the tasks described herein to accomplish the results for which the Company is responsible under this Agreement. 4.2. Company Services: Contractor agrees to perform the Company Services related to billing and collecting set forth in the "List of Company Services" attached hereto as Schedule "A" and incorporated herein by reference. 4.3. Non -Exclusive Relationship: Company may represent, perform services for, and contract with as many additional clients, persons, or companies as Company, in Company's sole discretion, sees fit. 4.4. Time and Place of Performing Work: Company may perform the services under this Agreement at any suitable time and location Company chooses. 4.5. Materials and Equipment: Company will supply all materials and equipment required to perform the services under this Agreement. 4.6. Workers' Compensation. Company agrees to provide workers' compensation insurance for Company and Company's employees and agents and agrees to hold harmless and indemnify City for any and all claims arising out of any injury, disability, or death of any of Company's employees or agents. The Company shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attomey's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the Company under this Agreement. 4.7. INSURANCE. The Company, at its sole cost and expense, shall purchase and maintain, and shall require its subconsultants, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ❑ A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of 3 $1,000,000 per occurrence/$2,0,00,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of Company's employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If Company has no employees subject to the California Workers' Compensation and Labor laws, Company shall execute a Declaration to that effect. Said Declaration shall be provided to Company by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CITY and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the Company shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. 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 the Company does not keep all of such insurance policies 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. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 4.8. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Company without the prior written consent of City, which consent shall not be unreasonably withheld. ARTICLE 5 COMPENSATION OF COMPANY 5.1. Compensation for Company Services: All Company Services provided pursuant to this Agreement will be provided in accordance with the terms, including compensation amounts and schedule of remittance, set forth in the "List of Company Services," attached hereto as Schedule A. 5.2. The provisions of Article 11 of this Agreement will govern any dispute associated with compensation. ARTICLE 6 OBLIGATIONS OF CITY 6.1. Cooperation of City: The City agrees to comply with all reasonable requests of Company and provide access to all documents reasonably necessary to the performance of Company's duties under this Agreement. 6.2. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by City without the prior written consent of Company, which consent shall not be unreasonably withheld. ARTICLE 7 CITY AUTHORIZATION 7.1. Authorization: Notwithstanding other provisions of this Agreement, Company shall obtain authorization from City prior to performing any of the following: (a) The sale conveyance, transfer, pledge exchange, assignment, hypothecation, or encumbrance of City's interest in any sums owed to City; and (b) All other limitations as stated by the terms of this Agreement. ARTICLE 8 TERMINATION OF AGREEMENT 8.1. Unless earlier terminated as set forth below, this Agreement shall be effective as of the date first set out above and shall continue for a period of one (1) year thereafter. This Agreement can be renewed annually should both parties agree to the renewal. 8.2. Termination for Convenience: This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 30-day's written 5 notice to the Company. During said 30-day period the Company shall perform all services in accordance with this Agreement. City may cancel for any reason, without notice, within the first ninety days (90) of the contract. 8.3. Termination on Occurrence of Stated Events: This Agreement will terminate automatically on the occurrence of any of the following events; (a) Bankruptcy or insolvency of either party; (b) The assignment of this Agreement by either party without the consent of the other party; the parties agree that neither party will unreasonably withhold consent to such an assignment. 8.4. Termination for Default: If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non -breaching party may terminate this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five days (5) after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following: (a) Company's failure to complete the services specified in the Description of Services; (b) City's material breach of any representation, warranty or agreement contained in this Agreement; (c) Company's material breach of any representation, warranty or agreement contained in this Agreement; (d) City's yearly billable run volume is at or below six runs (6). ARTICLE 9 PROPRIETARY RIGHTS 9.1. Confidential Information: Any written, printed, graphic, or electronically or magnetically recorded information furnished by City for Company's use are the sole property of City. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the City's employees, products, services, prices, operations, and subsidiaries. Company will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the City's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Company's employees, agents, and subcontractors. On termination of this Agreement, Company will return any confidential information in Company's possession to City. 6 ARTICLE 10 INDEMNIFICATION 10.1. Indemnification by Company: Company shall indemnify City and hold it harmless from any and all liability, including reasonable attorneys' fees, caused by or resulting from (i) the negligent or intentional acts or omissions of Company or any officer, director, agent, or employee thereof, or (ii) any breach of this Agreement by Company. ARTICLE 11 GENERAL PROVISIONS 11.1. Governing Law: This Agreement shall be governed in all respects by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction that would cause the application of the laws of any jurisdiction other that the State of California). 11.2. Entire Agreement: This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understanding of the parties. 11.3. Project Coordination and Supervision: hereby is designated as the Project Coordinator for the City and will monitor the progress and execution of this Agreement. The Company shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the Company. thereby is designated as the Project Director for the Company. . 11.4. Successors and Assigns: Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. No party may assign any of its rights or obligations hereunder without the express written consent of the other party hereto, which consent may not be unreasonably withheld; provided, however, any party may assign any and all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder; provided, however, that such party remains liable for full and total performance of its obligations hereunder. 11.5. Notices: Any notices authorized to be given hereunder shall be in writing and deemed given, if delivered personally or by overnight courier, on the date of delivery, if a Business Day, or if not a business day, on the first Business Day following delivery, or if mailed, three days after mailing by registered or certified mail, return receipt requested, and in each case, addressed, as follows: If to the Company to: Fire Recovery USA, LLC 219 Vernon Street Roseville, CA 95678 with a copy to: The Watkins Firm, APC 4520 Executive Drive, Suite 105 San Diego, California 92121 7 Attention: Mike Rivera Attention: Chris Popov, Esq. If to City to: Director of Emergency Services City of National City 1243 National City Boulevard National City, CA 91950 with a copy to: City Attorney City of National City 1243 National City Boulevard National City, CA 91950 Or, if delivered by telecopy, on a Business Day before 4:00 PM local time of addressee, on transmission confirmed electronically, or if at any other time or day on the first Business Day succeeding transmission confirmed electronically, to the facsimile numbers provided above, or to such other address or telecopy number as any party shall specify to the other, pursuant to the foregoing notice provisions. When used in this Agreement, the term "Business Day" shall mean a day other than a Saturday, Sunday or a day on which commercial banks in San Diego are generally closed for business. 11.6. Waiver; Amendments: This Agreement, and the Transaction Documents, (i) set forth the entire agreement of the parties respecting the subject matter hereof, (ii) supersede any prior and contemporaneous understandings, agreements, or representations by or among the parties, written or oral, to the extent they related in any way to the subject matter hereof, and (iii) may not be amended orally, and no right or obligation of any party may be altered, except as expressly set forth in writing signed by such party. 11.7. Counterparts: This Agreement may be signed in several counterparts. 11.8. Expenses: Each party shall bear its own expenses incurred with respect to the preparation of this Agreement and the consummation of the transactions contemplated hereby. 11.9. Arbitration: (a) If at any time there shall be a dispute arising out of or relating to any provision of this Agreement, any Transaction Document or any agreement contemplated hereby or thereby, such dispute shall be submitted for binding and final determination by arbitration in accordance with the regulations then obtaining of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) resulting from such arbitration shall be in writing, and shall be final and binding upon all involved parties. The site of any arbitration shall be within the County of San Diego in the State of California. The award may be confirmed and enforced in any court of competent jurisdiction. The parties hereby agree that any federal or state court sitting in the County of San Diego in the State of California is a court of competent jurisdiction. This paragraph does not limit in any way a party's right to seek injunctive relief in any state or federal court sitting in the County of San Diego in the State of California (jurisdictional, venue and inconvenient forum objections to which are hereby waived by both parties), including recovery of fees and costs. 8 (b) This arbitration clause shall survive the termination of this Agreement, any Transaction Document and any agreement contemplated hereby or thereby. 11.10. Waiver of Jury Trial; Exemplary Damages: THE PARTIES HERETO HEREBY WAIVE THEIR RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT OR ANY TRANSACTION DOCUMENT. NO PARTY SHALL BE AWARDED PUNITIVE OR OTHER EXEMPLARY DAMAGES RESPECTING ANY DISPUTE ARISING UNDER THIS AGREEMENT OR ANY TRANSACTION DOCUMENT CONTEMPLATED HEREBY. Signatures on following page: 9 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. COMPANY: FIRE RECOVERY USA, LLC. a California limited Liability company By: Name: Michael Rivera Title: Chief Business Development Officer CITY OF NATIONAL CITY By: 10 SCHEDULE A LIST OF COMPANY SERVICES 1. Fire Recovery USA agrees to bill the responsible party on the City's behalf for services provided/rendered during motor vehicle incidents and other emergency incidents. The billing rates (user fees) are listed as EXHIBIT A, but may change over time. Fire Recovery USA will provide notice to City of changes in rates. 2. Fire Recovery USA will provide, as a normal matter of business; entry of claims and submission to the responsible party, collections of monies deemed due to the City, payments of the agreed upon percentage of said monies to City, and reporting of progress. 3. Fire Recovery agrees to bill to the best of its ability all claims provided to Fire Recovery USA by the City. 4. Fire Recovery USA will not begin litigation against a person, entity, or insurance carrier without prior written approval by the City. 5. Fire Recovery agrees to reimburse City for a portion of the monies collected at a rate of 83% of the total monies collected on the City's claims for the first six (6) months. Every six (6) months Fire recovery agrees to provide City with an audit of its collection percentage from the preceding six (6) months. If the preceding six (6) months collection percentage is equal to or greater than 65%, then Fire Recovery will be entitled to retain an addition 3% per month on monies collected until the next six (6) month audit. If a six (6) month audit shows the collection percentage is Tess than 65%, then Fire Recovery will reimburse City a the original rate of 83% for the following six (6) months. The collection percentage will be based on "billable runs", defined as runs where the at -fault billable individual is a non-resident and has insurance coverage. 6. Fire Recovery USA agrees to pay these monies collected to the City on a monthly or quarterly basis (at the option of the City), within seven (7) working days after the close and accounting of the monthly (or quarterly) billing cycle. 7. Fire Recovery USA agrees to make available reports via a password protected website to the City which detail billable claims outstanding (which are claims submitted, but not yet completed) and claims completed in the prior billing cycle. 1 8. Fire Recovery USA will not be responsible for, nor accept any liability for, any erroneous, invalid, or illegal procedure codes or claims submitted to Fire Recovery USA by the City on the Run Sheets. 2 EXHIBIT A MITIGATION FEES BASED ON PER HOUR MOTOR VEHICLE INCIDENTS Level 1 - $435.00 Provide hazardous materials assessment and scene stabilization. This will be the most common "billing level". This occurs almost every time a fire department responds to an accident/incident. Level 2 - $495.00 Includes Level 1 services as well as clean up and material used (sorbents) for hazardous fluid clean up and disposal. We will bill at this level if the fire department has to clean up any gasoline or other automotive fluids that are spilled as a result of the accident/incident. Level 3 — CAR FIRE - $605.00 Provide scene safety, fire suppression, breathing air, rescue tools, hand tools, hose, tip use, foam, structure protection, and clean up gasoline or other automotive fluids that are spilled as a result of the accident/incident. Level 4 - $1,800.00 Includes Level 1 & 2 services as well as extrication (heavy rescue tools, ropes, airbags, cribbing etc.). We will bill at this level if the fire department has to free/remove anyone from the vehicle(s) using any equipment. We will not bill at this level if the patient is simply unconscious and fire department is able to open the door to access the patient. This level is to be billed only if equipment is deployed. Level 5 - $2,200.00 Includes Levels 1, 2, & 4 services as well as Air Care (multi -engine company response, mutual aid, helicopter). We will bill at this level any time a helicopter is utilized to transport the patient(s). 3 Level 6 Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates, for each incident using, itemized rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus, per personnel, plus products and equipment used. HAZMAT Level 1 - $700.00 Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, set-up and command. Level 2 - $2,500.00 Intermediate Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, set-up and command, Level A or B suit donning, breathing air and detection equipment. Set-up and removal of decon center. Level 3 — $5,900.00 Advanced Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command, Level A or B suit donning, breathing air and detection equipment and robot deployment. Set-up and removal of decon center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal fees of material and contaminated equipment and material used at scene. Includes 3 hours of on scene time - each additional hour @ $300.00 per HAZMAT team. PIPELINE INCIDENTS / POWER LINE INCIDENTS (Includes, but not limited to: Gas, Sewer, Septic to Sewer, and Water Pipelines) Level 1 - $400.00 Basic Response: Claim will include engine response and first responder assignment, perimeter establishment, evacuations, first responder set-up and command. Includes inspection without damage or breakage. Level 2 - $1,000.00 Intermediate Response: Claim will include engine response, first responder assignment, and appropriate equipment, perimeter establishment, evacuations, first 4 responder set-up and command. May include HAZMAT team, Level A or B suit donning, breathing air and detection equipment. Supervise and/or assist pipeline repair. Level 3 — Itemized Claim Charges Advanced Response: Claim will include engine response, first responder assignment, and appropriate equipment, perimeter establishment, evacuations, first responder set- up and command. May include HAZMAT team, Level A or B suit donning, breathing air and detection equipment. Supervise and/or assist pipeline repair of intermediate to major pipeline damage. May include set-up and removal of decon center, detection, recovery and identification of material. Disposal and environment clean up. FIRE INVESTIGATION Fire Investigation Team - $275.00 per hour. Includes: • Scene Safety • Investigation • Source Identification • K-9/Arson Dog Unit • Identification Equipment • Mobile Detection Unit • Fire Report The claim begins when the Fire Investigator responds to the incident and is billed for logged time only. FIRES Assignment - $400.00 per hour, per engine / $500.00 per hour, per truck Includes: • Scene Safety • Investigation • Fire / Hazard Control This will be the most common "billing level". This occurs almost every time a fire department responds to an incident. OPTIONAL: A fire department has the optionto bill each fire as an independent event with custom mitigation rates. 5 Itemized, per person, at various pay levels and for itemized products use. WATER INCIDENTS Level 1 Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, first responder set-up and command, scene safety and investigation (including possible patient contact, hazard control). This will be the most common "billing level". This occurs almost every time a Fire Department responds to a water incident. Billed at $400 plus $50 per hour, per rescue person. Level 2 Intermediate Response: includes Level 1 services as well as clean up and material used (sorbents), minor hazardous clean up and disposal. We will bill at this level if the fire department has to clean up small amounts of gasoline or other fluids that are spilled as a result of the incident. Billed at $800 plus $50 per hour, per rescue person. Level 3 Advanced Response: includes Level 1 and Level 2 services as well as D.A.R.T. activation, donning breathing apparatus and detection equipment. Set up and removal of decon center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal fees of material and contaminated equipment and material used at scene. Billed at $2,000 plus $50 per hour per rescue person, plus $100 per hour per HAZMAT team member. Level 4 Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates, for each incident using, itemized rates deemed usual, customary, and reasonable (UCR). These incidents will be billed, itemized, per trained rescue person, plus rescue products used. BACK COUNTRY OR SPECIAL RESCUE 6 Itemized Response: each incident will be billed with custom mitigation rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus per hour, per trained rescue person per hour, plus rescue products used. Minimum billed $400 for the first response vehicle plus $50 per rescue person. Additional rates of $400 per hour per response vehicle and $50 per hour per rescue person. CHIEF RESPONSE This includes the set-up of Command, and providing direction of the incident. This could include operations, safety, and administration of the incident. Billed at $250 per hour. MISCELLANEOUS Engine billed at $400 per hour. Truck billed at $500 per hour. Miscellaneous equipment billed at $300. MITIGATION RATE NOTES The mitigation rates above are average "billing levels", and are typical for the incident responses listed, however, when a claim is submitted, it will be itemized and based on the actual services provided. These average mitigation rates were determined by itemizing costs for a typical run (from the time a fire apparatus leaves the station until it returns to the station) and are based on the actual costs, using amortized schedules for apparatus (including useful life, equipment, repairs, and maintenance) and labor rates (an average department's "actual personnel expense" and not just a firefighter's basic wage). The actual personnel expense includes costs such as wages, retirement, benefits, workers comp, insurance, etc. 7 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. 20 EM TITLE: Resolution of the City Council of the City of National City authorizing approval of an Agreement for red light photo enforcement cameras with Redflex Traffic Systems, Inc. for a Red Light Photo Enforcement Program and waiving the formal bid process. PREPARED BY: Leslie Deese, Asst. City Manager — 336-4240 DEPARTMENT: City Manager/Police Dept. PHONE: Adolfo Gonzales, Police Chief - 336-4400 APPROVED BY: EXPLANATION: See Attached FINANCIAL STATEMENT: ACCOUNT NO. See Attached. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt Resolution BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: tall Report ,greement STAFF REPORT ITEM TITLE: Resolution of the City Council of the City of National City Authorizing Approval of an Agreement for Red Light Photo Enforcement Cameras with Redflex Traffic Systems, Inc. for a Red Light Photo Enforcement Program and Waiving the Formal Bid Process BACKGROUND The goal of a Red Light. Photo Enforcement Program is to improve the safety of the community for vehicular, bicycle and pedestrian traffic by reducing the incidence of vehicles failing to stop for red light signals. Photo enforcement programs have a proven record .for reducing right angle collisions at monitored intersections in jurisdictions where similar programs have been initiated. According to the latest statistics provided by the National Highway Traffic Safety Administration (NHTSA), in 2005 nearly 9,200 people died and approximately one million people were injured in intersection related crashes, which is approximately 40-45 percent of all crashes. According to 2005 data from NHTSA's Facility Analysis Reporting system, crashes caused by red light running resulted in an estimated 805 fatalities and more than 100,000 crashes. Statistics show that in 2008, the National. City Police Department responded to 28 total collisions involving red light violators, resulting in 25 injuries and in 2009, there were a total of 33 collisions involving red Tight violators, resulting in 33 injuries. In San Diego County, the following cities have red light camera programs in place: El Cajon, Encinitas, Vista, Del Mar, Escondido, Solana Beach, Oceanside and Poway. Automated red light photo enforcement is authorized and governed by the California Vehicle Code (Sections 21455.5 through 21455.7). The Redflex Traffic System uses digital media that produces still images and full motion digital video. Each monitored intersection approach requires the installation of two camera systems and high-speed synchronized flash units to capture the required photographic evidence used to prosecute red light violations: The digital evidence is transported over secure high-speed data links to the vendor where vehicle registration information is collected and assembled with the photographic evidence. The combined information and evidence are returned electronically to the Police Department where an employee reviews the evidence and makes the determination of whether or not the violation should be forwarded for prosecution. If a prosecution decision is positive, the vendor generates and mails a citation to the violator and forwards all pertinent information to the San Diego Court. When the violator receives the citation in the mail, they are provided the still images of the violation and the photograph of the driver. They are provided with a web site address and a unique PIN number to access both the still photographs and the video clip of the violation for their review. In the event the violator does not have Internet access, they will be able to review the evidence at the Police Department prior to any court appearance. The proposed agreement with Redflex is for a three (3) year term and includes the installation of up to fifteen (15) red light camera systems within the City of National City. Consideration will be given to intersection locations throughout the City where photo enforcement will have the greatest impact based on accident and citation issuance statistics. In addition, each potential installation site will be sampled for violation counts using photographic monitoring through the temporary installation of a vendor supplied camera system. This information will assist in validating red light photo enforcement locations with the goal of reducing collisions and improving community safety. The intersections being considered for Red Light Photo Enforcement Program are: - Plaza Blvd. / Euclid Avenue Highland Avenue / 30th Street Paradise Valley Road / 8th Street - Highland Avenue / 8th Street Highland Avenue / Plaza Blvd. Adoption of the contract will initiate a public awareness campaign. The City's public awareness campaign will include print material and workshops to educate the public on the dangers of redlight violations. The City Manager's Office and the Police Department will work together with Redflex to develop and implement a series of press releases and press conferences informing the local media and public about the installation of the red light cameras, the benefits of the systems and services and the results of the installations. The Police Department will conduct a community meeting where residents can come and ask questions about the program and observe the type of evidence package the Red Light Photo Enforcement Program presents. Additionally, the program will be introduced at Neighborhood .Councils and on the City's web site. Regular program updates and progress reports will be posted and will include photos of the implementation. FINANCIAL IMPACTS The City will incur no upfront costs associated with the installation, operation, processing and maintenance of the photo enforcement equipment. The City will pay Redflex.a fixed fee of $5,675 per month for each Designated Intersection Approach with up to two (2) contiguous lanes and $5995 per month for three (3) or more contiguous lanes per Designated Intersection Approach as full remuneration for performing all of the services contemplated in this Agreement. The monthly fees to Redflex will be covered by red Tight violation revenues paid to the City. The agreement with Redflex stipulates a 'Cost Neutrality' clause where the City will not pay Redflex more than actual cash received. Any revenues realized through the Red Light Photo Enforcement program will offset costs for the program. The program is intended as a safety program. There are indirect police personnel costs relating to the review of violations, response to citizen inquiries and court appearances for contested citations. These indirect costs are difficult to predict, and will vary depending on the number of installed Redflex systems. Staff, after conferring with the proposed vendor and other California police agencies already using the Redflex system, estimates a minimum of ten (10) to fifteen (15) hours per week in personnel time dedicated red light enforcement duties. This will be performed by existing staff including part-time employees and officers assigned to light duty assignments. Overall program management will be the responsibility of the Watch Commander and the Traffic Sergeant. AWARD JUSTIFICATION — OTHER AGENCY COMPETITIVE BID PROCESS At its regular meeting on. December 15, 2009, the City Council directed the City Manager's Office and the Police Department to continue working -on the --red -light camera enforcement program. As allowed by Purchasing Ordinance #1-480, Section 16, the award will be made as a result of competitive bids solicited by the City of Corona, California where RedFlex Traffic Systems, Inc. was determined to be the lowest responsive, responsible bidder, and was awarded their bid. RedFlex is pleased to offer the City of National City the opportunity to take advantage of this competitive bid price. The City of Corona bid fully complies with Section 11 of Ordinance #1480 and that it would be in the City's best interest to take advantage of this opportunity. STAFF RECOMMENDATION: Staff recommends that the City Council adopt the Resolution authorizing the Mayor to sign an agreement with Reflex Traffic Systems, Inc. for Red Light Photo Enforcement System and to Waive the Formal Bid Process. 1.10. "Fine" means a monetary sum assessed for Citation, including but not limited to bail forfeitures, but excluding suspended fines. 1.11. "Governmental Authority" means any domestic or foreign government, governmental authority, court, tribunal, agency or other regulatory, administrative or judicial agency, commission or organization, and any subdivision, branch or department of any of the foregoing. 1.12. "Installation Date of the Photo Red Light Program" means the date on which Redflex completes the construction and installation of at least one (1) Intersection Approach in accordance with the terms of this Agreement so that such Intersection Approach is operational for the purposes of functioning with the Redlight Photo Enforcement Program. 1.13. "Intellectual Property" means, with respect to any Person, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights and mask -works, (b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing), of such Person. 1.14. "Operational Period" means the period of time during the Term, commencing on the Installation Date, during which the Photo Red Light Enforcement Program is functional in order to permit the issuance of Citations using the Redflex System. 1.15. "Person" means a natural individual, company, Governmental Authority, partnership, firm, corporation, legal entity or other business association. 1.16. "Project Manager" means the project manager appointed by the Customer in accordance with this Agreement, which shall be an Authorized Employee and shall be responsible for overseeing the installation of the Intersection Approaches and the implementation of the Redlight Photo Enforcement Program, and which manager shall have the power and authority to make management decisions relating to the Customer's obligations pursuant to this Agreement, including but not limited to change order authorizations, subject to any limitations set forth in the Customer's charter or other organizational documents of the Customer or by the city counsel or other governing body of the Customer. 1.17. "Potential Violation" means, with respect to any motor vehicle passing through a Designated Intersection Approach, the data collected by the Redflex System with respect to such motor vehicle, which data shall be processed by the Redflex System for the purposes of allowing the Authorized Employee to review such data and determine whether a Red Light Violation has occurred. 1.18. "Proprietary Property" means, with respect to any Person, any written or tangible property owned or used by such Person in connection with such Person's business, whether or not such property is copyrightable or also qualifies as Confidential Information, including without limitation products, samples, 3 1.24. "Records Retention" means the period of time that Redflex will retain confidential information to include photographic evidence and data associated with the photo enforcement program. 1.25. "SMARTcam® System" means the proprietary software system that controls the photo enforcement system of Redflex relating to the Photo Enforcement Program. 1.26. "Salus® System" means the proprietary software system that controls the photo enforcement system of Redflex relating to the Photo Enforcement Program. 1.27. "REDFLEXred® System" means the proprietary digital redlight photo enforcement system of Redflex relating to the Photo Red Light Enforcement Program. 1.28. "SMARTops® System" means the proprietary back -office processes of Redflex relating to the Photo Red Light Enforcement Program. 1.29. "SMARTscene® System" means the proprietary digital video camera unit, hardware and software required for providing supplemental violation data. 1.30. "Traffic Signal Controller Boxes" means the signal controller interface and vehicle detection owned and operated by the Customer. This includes, but not limited to, the Customer's traffic controller, Customer's vehicle detection equipment, Customer's communication equipment, Customer's controller cabinet, etc. 1.31. "Violation" means any traffic violation authorized for photo enforcement as prohibited by the Vehicle Code or any applicable rule, regulation or law of any other Governmental Authority, including but not limited to operating a motor vehicle contrary to traffic signals, and operating a motor vehicle without displaying a valid license plate or registration. 1.32. "Violations Data" means the images and other Violations data gathered by the Redflex System at the Designated Intersection Approaches. 1.33. "Warning Period" means a period after the Installation Date of the first intersection approach, wherein only waming notices shall be issued, commencing within 3 days after the system has been installed. 2. TERM. The term of this Agreement shall commence as of the date hereof and shall continue for a period of three (3) years after the issuance of the first citation by the system. The Customer shall have the right, but not the obligation, to extend the term of this Agreement for up to two (2) additional consecutive two (2) year periods following the expiration of the Initial Term (each, a "Renewal Term" and collectively with the Initial Term, the "Term"). The Customer may exercise the right to extend the term of this Agreement for a Renewal Term by providing written notice to Redflex not less than thirty (30) days prior to the last day of the Initial Term or the Renewal Term, as the case may be. 3. SERVICES. Redflex shall provide the Photo Red Light Enforcement Program to the Customer, in each case in accordance with the terms and provisions set forth in this Agreement. 5 Approaches and the functionality of the Redflex System with respect thereto to the Customer in such format and for such periods as mutually agreed upon. 3.3.10. During the six (6) month period following the Installation Date and/or upon Redflex's receipt of a written request from the Customer at least fourteen (14) calendar days in advance of court proceeding, Redflex shall provide expert witnesses for use by the Customer in prosecuting Violations; provided, however, the Customer shall use reasonable best efforts to seek judicial notice in lieu of requiring Redflex to provide such expert witnesses; After the initial 6 month period, expert testimony may be provided on a cost reimbursement basis. 3.3.11. During the three (3) month period following the Installation Date, Redflex shall provide such training to Customer personnel as shall be reasonably necessary in order to allow such personnel to act and to testify as expert witnesses on behalf of the Customer with respect to the Redlight Enforcement Program. 3.4. Records Retention: Redflex will retain confidential information to include photographic evidence and data associated with the photo enforcement program for a period of time compliant with California Vehicle Code requirements. 3.5. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall diligently prosecute Citations and the collection of all Fines in respect thereof, and Redflex shall have the right to receive, and the Customer shall be obligated to pay, the compensation set forth on Exhibit D attached hereto. 3.6. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of the other rights and obligations set forth in this Agreement, Redflex and the Customer shall have the respective rights and obligations set forth on Exhibit E attached hereto. 3.7. CHANGE ORDERS. The Customer may from time to time request changes to the work required to be performed or the addition of products or services to those required pursuant to the terms of this Agreement by providing written notice thereof to Redflex, setting forth in reasonable detail the proposed changes (a "Change Order Notice"). Upon Redflex's receipt of a Change Order Notice, Redflex shall deliver a written statement describing the cost, if any (the "Change Order Proposal"). The Change Order Proposal shall include (i) a detailed breakdown of the charge and schedule effects, (ii) a description of any resulting changes to the specifications and obligations of the parties, (iii) a schedule for the delivery and other performance obligations, and (iv) any other information relating to the proposed changes reasonably requested by the Customer. Following the Customer's receipt of the Change Order Proposal, the parties shall negotiate in good faith and agree to a plan and schedule for implementation of the proposed changes, the time, manner and amount of payment or price increases or decreases, as the case may be, and any other matters relating to the proposed changes; provided, however, in the event that any proposed change involves only the addition of equipment or services to the existing Designated Intersection Approaches, or the addition of Intersection Approaches to be covered by the terms of this Agreement, to the maximum extent applicable, the prevent such infringing activities, and shall not in its own name make any registrations or filings with respect to any of the Redflex Marks or the Intellectual Property of Redflex without the prior written consent of Redflex. 4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give Redflex prompt notice of any activities or threatened activities of any Person of which it becomes aware that infringes or violates the Redflex Marks or any of Redflex's Intellectual Property or that constitute a misappropriation of trade secrets or act of unfair competition that might dilute, damage or destroy any of the Redflex Marks or any other Intellectual Property of Redflex. Redflex shall have the exclusive right, but not the obligation, to take action to enforce such rights and to make settlements with respect thereto. In the event that Redflex commences any enforcement action under this Section 4.5, then the Customer shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex, and Redflex shall be entitled to any damages or other monetary amount that might be awarded after deduction of actual costs; provided, that Redflex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance. 4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of any action or claim action or claim, whether threatened or pending, against the Customer alleging that the Redflex Marks, or any other Intellectual Property of Redflex, infringes or violates any patent, trademark, copyright, trade secret or other Intellectual Property of any other Person, and the Customer shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex in the defense thereof; provided, that Redflex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance. If such a claim is made and Redflex determines, in the exercise of its sole discretion, that an infringement may exist, Redflex shall have the right, but not the obligation, to procure for the Customer the right to keep using the allegedly infringing items, modify them to avoid the alleged infringement or replace them with non -infringing items. 5. Representations and Warranties. 5.1. Redflex Representations and Warranties. 5.1.1. Authority. Redflex hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.1.2. Professional Services. Redflex hereby warrants and represents that any and all services provided by Redflex pursuant to this Agreement shall be performed in a professional and workmanlike manner and, with respect to the installation of the Redflex System, subject to applicable law, in compliance with all specifications provided to Redflex by the Customer. 5.2. Customer Representations and Warranties. 5.2.1. Authority. The Customer hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 9 Except as set forth below, upon the termination of this Agreement, all of the provisions of this Agreement shall terminate and: 6.3.1. Redflex shall (i) cease to provide services, including but not limited to work in connection with the construction or installation activities and services in connection with the Photo Red Light Enforcement Program as of the effective date of the termination, (ii) promptly deliver to the Customer any and all Proprietary Property of the Customer provided to Redflex pursuant to this Agreement, (iii) promptly deliver to the Customer a final report to the Customer regarding the collection of data and the issuance of Citations in such format and for such periods as the Customer may reasonably request, and which final report Redflex shall update or supplement from time to time when and if additional data or information becomes available, (iv) promptly deliver to Customer a final invoice stating all fees and charges properly owed by Customer to Redflex for work performed and Citations issued by Redflex prior to the termination, and (v) provide such assistance as the Customer may reasonably request from time to time in connection with prosecuting and enforcing Citations issued prior to the termination of this Agreement. Immediately upon termination Redflex is no longer bound to the Data Retention Requirements for any data and if the customer wishes to obtain the data it must be conveyed at the time of termination. Redflex will transfer the data and relevant information to the city by a mutually agreed upon method. The customer will assume the burden for all costs associated with this task including but not limited to administrative, storage media, storage media authoring devices, and internet bandwidth used for transferring data. Redflex will provide no tools for accessing this data or other guarantees. 6.3.2. The Customer shall (i) cease using the Photo Red Light Enforcement Program, accessing the Redflex System and using any other Intellectual Property of Redflex as of the effective date of the termination, (ii) promptly deliver to Redflex any and all Proprietary Property of Redflex provided to the Customer pursuant to this Agreement, and (iii) promptly pay any and all fees, charges and amounts properly owed by Customer to Redflex for work performed and Citations issued by Redflex prior to the termination. 6.3.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the Photo Red Light Enforcement Program or have agreed to extend the Term of this Agreement, Redflex shall remove any and all Equipment or other materials of Redflex installed in connection with Redflex's performance of its obligations under this Agreement, including but not limited to housings, poles and camera systems, and Redflex shall restore the Designated Intersection Approaches to substantially the same condition such Designated Intersection Approaches were in immediately prior to this Agreement. 6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the following shall survive the termination of this Agreement: Sections 4.2 (Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2 (Customer Representations and Warranties), 5.3 (Limited Warranty), 7 11 Customer first becomes aware thereof; provided, however, that failure so to give such notice shall not preclude indemnification with respect to such Claim except to the extent of any additional or increased Losses or other actual prejudice directly caused by such failure. The Customer shall have the right to choose counsel to defend such Claim, and to control, compromise and settle such Claim. Customer and Redflex shall cooperate in the defense or settlement of any Claim. 8.3. LIMITED LIABILITY. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the other, by reason of any representation or express or implied warranty, condition or other term or any duty at common or civil law, for any indirect, incidental, or lost profits damages, however caused and on any theory of liability arising out of or relating to this Agreement. 9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days after being mailed first class, certified mail, return receipt requested, postage and registry fees prepaid, or (c) one Business Day after being delivered to a reputable overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next day delivery, if the courier service obtains a signature acknowledging receipt, in each case addressed or sent to such party as follows: 9.1. Notices to Redflex: Redflex Traffic Systems, Inc. 23751 North 23rd Avenue Phoenix, AZ 85027 Attention: PROGRAM MANAGEMENT Facsimile: (623) 207-2050 9.2. Notices to the Customer: City of National City 1243 National City Blvd. National City, CA 91950 Attention: CITY MANAGER Facsimile: 10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof (the "Dispute"), the parties shall engage in informal, good faith discussions and attempt to resolve the Dispute. In connection therewith, upon written notice of either party, each of the parties will appoint a designated officer whose task it shall be to meet for the purpose of attempting to resolve such Dispute. The designated officers shall meet as often as the parties shall deem to be reasonably necessary. Such officers will discuss the Dispute. If the parties are unable to resolve the Dispute in accordance with this Section 10, and in the event that either of the parties concludes in good faith that amicable resolution through continued negotiation with respect to the Dispute is not reasonably likely, then Section 10.1 shall apply. 13 debts or liabilities or obligations on behalf of the other party (except as specifically provided herein). 11.3. AUDIT RIGHTS. Each of parties hereto shall have the right to audit to audit the books and records of the other party hereto (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the Audited Party, at mutually convenient times and during the Audited Party's normal business hours. Except as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non -Audited Party. In the event any such audit establishes any underpayment of any payment payable by the Audited Party to the non -Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment by more than twenty five percent (25%) of the amount of actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any overpayment by the Audited Party of any payment made pursuant to this Agreement, non -Audited Party shall promptly refund to the Audited Party the amount of the excess. 11.4. WORKERS' COMPENSATION. Redflex shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the Customer and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the Customer or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by Redflex under this Agreement. 11.5. INSURANCE. Redflex, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors (excluding professional liability), when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per each claim. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of Redflex's employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. 15 Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision. 11.9. WAIVER. Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof. 11.10. CONSTRUCTION Except as expressly otherwise provided in this Agreement, this Agreement shall be construed as having been fully and completely negotiated and neither the Agreement nor any provision thereof shall be ;construed more strictly against either party. 11.11. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 11.12. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Any one of such counterparts shall be sufficient for the purpose of proving the existence and terms of this Agreement, and no party shall be required to produce an original or all of such counterparts in making such proof. 11.13. COVENANT OF FURTHER ASSURANCES. All parties to this Agreement shall, upon request, perform any and all acts and execute and deliver any and all certificates, instruments and other documents that may be necessary or appropriate to carry out any of the terms, conditions and provisions hereof or to carry out the intent of this Agreement. 11.14. REMEDIES CUMULATIVE. Each and all of the several rights and remedies provided for in this Agreement shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and pursuit of any one remedy shall not be deemed to be an election of such remedy, or a waiver of any other remedy. 11.15. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto and their respective executors, administrators, successors and permitted assigns. 11.16. COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law, and whenever there is a conflict between any term, condition or provision of this Agreement and any present or future statute, law, ordinance or regulation contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the term, condition or provision of this Agreement affected shall be curtailed and limited only to the extent necessary to bring it within the requirement of the law, provided that such construction is consistent with the intent of the Parties as expressed in this Agreement. 11.17. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall be deemed to confer any right or benefit on any Person who is not a party to this Agreement. 17 EXHIBIT "A" Designated Intersection Approaches The contract is for the implementation of up to 15 intersection approaches. Identification of enforced intersection approaches will be based on mutual agreement between Redflex and the City as warranted by community safety and traffic needs. The City will make all reasonable efforts to provide the list of proposed intersections under consideration prior to formal project kick-off to the designated Redflex project manager. 19 1.10. Cause an electrical sub -contractor to complete all reasonably necessary electrical work at the Designated Intersection Approaches, including but not limited to the installation of all related Equipment and other detection sensors, poles, cabling, telecommunications equipment and wiring, which work shall be performed in compliance with all applicable local, state and federal laws and regulations; 1.11. Install and test the functionality of the Designated Intersection Approaches with the Redflex System and establish fully operational Violation processing capability with the Redflex System; 1.12. Implement the use of the Redflex System at each of the Designated Intersection Approaches; 1.13. Deliver the Materials to the Customer; and 1.14. Citation processing and citation issuance/re-issuance for Authorized Violations; 1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the Customer, including but not limited to the persons who Customer shall appoint as Authorized Employees and other persons involved in the administration of the Redlight Photo Enforcement Program, (ii) for up to sixteen (16) hours in the aggregate, (iii) regarding the operation of the Redflex System and the Redlight Photo Enforcement Program, which training shall include training with respect to the Redflex System and its operations, strategies for presenting Violations Data in court and judicial proceedings and a review of the Enforcement Documentation; Interact with court and judicial personnel to address issues regarding the implementation of the Redflex System, the development of a subpoena processing timeline that will permit the offering of Violations Data in court and judicial proceedings, and coordination between Redflex, the Customer and (WHERE APPLICABLE juvenile court personnel) 2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of the following (in each case, unless otherwise stated below, at Customer's sole expense): 2.1.1. Appoint the Project Manager; 2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities; 2.1.3. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection Approaches or the implementation of the Redlight Photo Enforcement Program; 2.1.4. Provide assistance to Redflex in obtaining access to the records data of the Department of Motor Vehicles in Redflex's capacity as an independent contractor to the Customer; and 2.1.5. Assist Redflex in seeking the Approvals 2.1.6. Provide reasonable access to the Customer's properties and facilities in order to permit Redflex to install and test the functionality of the Designated Intersection Approaches and the Redlight Photo Enforcement Program; 21 EXHIBIT "C" Maintenance 1. All repair and maintenance of Photo Red Light Enforcement systems and related equipment will be the sole responsibility of Redflex, including but not limited to maintaining the casings of the cameras included in the Redflex System and all other Equipment in reasonably clean and graffiti -free condition. 2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of city Traffic Engineering present. 3. In the event that images of a quality suitable for the Authorized Employee to identify Violations cannot be reasonably obtained without the use of flash units, Redflex shall provide and install such flash units. 4. Redflex may assign specific personnel to provide follow up assistance to the Customer in the form of the HELPDESK, a designated Customer Service Representative and a Director of Accounts. 23 Should, at any point in the term of the agreement or any renewals thereof, a court of final determination in the State of California and/or the California Legislature determine that the pricing structure defined above be invalid, the following compensation and pricing shall be applied in all instances, upon 60 days notice: Standard Interval Price Adjustment Customer and Redflex agree that Customer shall pay a fixed fee as outlined above per month for each Designated Approach, unless otherwise adjusted as follows. Customer and City agree to adjust the fixed fee pricing terms under the contract every twelve (12) months. Any such adjustment (if applicable) shall be limited to either a maximum of 20% more or less than the fixed fee in effect at the immediately preceding the pending adjustment and on a commercially reasonable basis as agreed between the parties. Should the parties, in good faith, not be able to agree upon pricing terms within the parameters outlined above, the agreement shall continue for an additional six (6) month period at the fixed monthly fee level in effect at that time. BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS: 1. Redflex construction will be able to utilize existing conduit for installation where space is available. If it is determined that new conduit must be installed the cost of the installation of the same shall be borne by Redflex. 2. Except where a balance remains unpaid due to a deficit in the gross cash received as described herein, Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60 days from date of invoice. 3. The provision of all necessary communication, broadband and telephone services to the Designated Intersection Approaches will be the sole responsibility of Redflex 4. The on -going provision of any and all necessary electrical power to the Designated Intersection Approaches will be the sole responsibility of the Customer 5. The Customer shall require any and all employees who may operate or occupy the Equipped Motor Vehicles to complete a mandatory training program to insure that (a) the Equipped Motor Vehicles are operated in a safe manner and (b) all warnings and instructions that accompany the Equipped Motor Vehicles are understood and heeded. 6. Redflex shall be solely responsible for installing required signage. Redflex shall be solely responsible for the fabrication of any signage, notices or other postings required pursuant to any law, rule or regulation of any Governmental Authority ("Signage"), including but not limited to the Vehicle Code, and Customer shall assist in determining the placement of such Signage. Redflex shall submit signage design drawings to the appropriate local authority for approval. Any changes or modifications to signage requirements will be the responsibility of the Customer. 7. Required Credit Card fees will not be considered to be revenue received and are the responsibility of the violator. 8. Roadway/Intersection improvement projects: Customer shall reimburse Redflex the costs of replacing and or modification of operational system approaches. If a system is deactivated at the Customer's request due to roadway construction, the monthly fee will continue. 25 RESOLUTION NO. 2010.— RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE FORMAL BID PROCESS AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH REDFLEX TRAFFIC SYSTEMS, INC., FOR A RED LIGHT PHOTO ENFORCEMENT PROGRAM WHEREAS, at its regular meeting on December 15, 2009, the City Council directed staff to implement a Red Light Photo Enforcement Program to improve the safety of the community for vehicular, bicycle, and pedestrian traffic by reducing the incidence of vehicles failing to stop for red light signals; and WHEREAS, the City has determined that RedFlex Traffic Systems, Inc., is qualified by experience and ability to perform the services desired by the City, and RedFlex Traffic Systems, Inc., is willing to provide such services for a three-year period with two optional renewals of two years each, and in an amount not to exceed $5,995 per month, which will be funded by red Tight violation revenues; and WHEREAS, the City of Corona awarded a contact based upon a competitive bidding process, to RedFlex Traffic Systems, Inc., for the installation, operation, processing, and maintenance of a Red Light Photo Enforcement Program, which National City can rely upon, thereby getting the best purchase price; and WHEREAS, Section 2.60.260 of the National City Municipal Code provides that the City may buy directly from a vendor at a price established through competitive bidding by another public agency whose procedures have been determined to be in substantial compliance with the City's procurement procedures, and such a determination has been made by the purchasing division, based upon the City of Corona's request for proposal process which is in substantial compliance with the City's process. It is therefore recommended that the purchase be made without complying with the competitive bidding procedure set forth in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City. of National City hereby affirms the determination that the City of Corona's procurement procedures are in substantial compliance with the City's, and pursuant to Section 2.60.260 of the Municipal Code authorizes the waiving of the bidding process. BE IT FURTHER RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute an Agreementwith.RedFlex Traffic Systems, Inc., for the installation, operation, processing, and maintenance of a Red Light Photo Enforcement Program for a three-year term with two optional extensions of two years each in an amount not to exceed $215,820, to be funded by red light violation revenues. Said Agreement in on file in the office of the City Clerk. — Signature Page to Follow -- Resolution No. 2010 — Page 2 'ATTEST: PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 20101 AGENDA ITEM NO. 21 fEM TITLE: Resolution of the City Council of the City of National City Implementing Changes in Wages, Hours, and Other Terms and Conditions of Employment for Employees in the Bargaining Unit Represented by the National City Municipal Employees' Association for the Period from January 1, 2010 through December 31, 2010. PREPARED BY: Stacey Stevenson, HR Director DEPARTMENT: Hu PHONE: I336-4308i APPROVED BY: EXPLANATION: See attached staff report. es FINANCIAL STATEMENT: APPROND: L. A Finance ACCOUNT NO. APPROVED: MIS The estimated savings associated with the terms of the MOU for FY 2009-2010 is $31,625, and for FY 2010-2011 is $216,662. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Recommend approval of resolution. BOARD / COMMISSION RECOMMENDATION: N/N ATTACHMENTS: solution ..naff Report NCMEA One Year Last, Best and Final Proposal City's Last, Best and Final Proposals to NCMEA; RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY IMPLEMENTING CHANGES IN WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT FOR EMPLOYEES IN THE BARGAINING UNIT REPRESENTED BY THE NATIONAL CITY THE MUNICIPAL EMPLOYEES' ASSOCIATION FOR THE PERIOD FROM JANUARY 1, 2010 THROUGH DECEMBER 31, 2010 WHEREAS, the City has met and conferred with representatives of the National City Municipal Employees' Association (NCMEA); and WHEREAS, said meet and confer sessions were conducted pursuant to California Government Code Section 3500 et seq.; and WHEREAS, the representatives of the City and the NCMEA failed to reach agreement, and an impasse was declared by the City; and WHEREAS, consistent with the provisions of the National City Employer - Employee Relations Policy, an impasse meeting was held; and WHEREAS, the parties failed to reach agreement on a Memorandum of Understanding or a means of resolving the disagreement and the impasse was referred to the City Council for resolution; and WHEREAS, the City Council, at their meeting of May 18, 2010, reviewed issues of disagreement and heard from representatives of both sides. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that effective January 1, 2010, the proposed changes in wages, hours, and terms and conditions of employment for employees in the bargaining unit represented by the National City Municipal Employees' Association for the period from January 1, 2010 through December 31, 2010, contained in the Last, Best, and Final Offer of the City's bargaining representatives shall be implemented. BE IT FURTHER RESOLVED that the City Manager is hereby directed to implement said changes and to reflect said changes in the compensation plan contained therein in the final budget for Fiscal Year 2009-2010. BE IT FURTHER RESOLVED that a copy of the document incorporating said changes in salaries, benefits, and working conditions is attached hereto as Exhibit "A" and incorporated herein by reference. --- Signature Page to Follow Resolution No. 2010 — May 18, 2010 Page 2 PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalia, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney EXHIBIT A Not� Ty -IIBCORFORATER CITY OF NATIONAL CITY / SEIU LOCAL 221 FOR NATIONAL CITY MEA 2009 MOU NEGOTIATIONS One Year Last, Best and Final of City of National Cityl ONE YEAR LAST, BEST AND FINAL PROPOSAL 1. Term: 12 months, 1/1/10 — 12/31/10 2. Maintain current wage levels, i.e. no increase or decrease to ranges, through 12/31/10 3. Effective retroactive to January 1, 2010, employees will be required to contribute an additional 1%, for a total of 3%, toward the Ca1PERS employee member contribution. 4. Second tier retirement of 2% at 60 with single highest year for new hires 5. Furloughs: For non -emergency personnel, the City will be closed for the two - weeks preceding January 1, 2011 to include a 40 hour work furlough. 6. Sick Leave: Clarify definitions and sick leave provisions consistent with Labor Code 233; end past practice of issuing a separate check for sick leave incentive pay (Article 8) 7. Health: Delete names of providers from MOU and add language to tie City contributions to lowest cost health and dental plans. Add language that, "The City and MEA agree to work cooperatively to develop a Health Savings Account option for employees in 2010. Add language clarifying that retiree health benefit does not entitle the retiree to any particular insurance or any particular rate. (Article 14) 8. Nutrition Center: The City and MEA agree to continue discussions outside of MOU discussions on the impact of converting from a City division to a non-profit entity in an attempt to reach a side letter agreement. 9. Holidays: Strike old/outdated holiday closure language (Article 2) 1 Any terms and conditions ultimately imposed would remain in place until different terms and conditions were negotiated and agreed to or different terms and conditions were imposed. City of National City SEIU Local 221 / National City MEA 2009 MOU Negotiations City One Year Last, Best and Final Proposal Page 2 10. Vacation: Delete old language requiring employees to use 60 hours of leave prior to vacation sell back (current is 50 hours); clarify the eligibility period to be the first pay period in December to the last pay period in November (Article 1) 11. Transfer of Leave Credits: Add language so it is consistent with the current Catastrophic Leave policy (Article 9) 12. Allowances: Delete prior cleaning allowance of $3 (current is $5) and delete prior fire uniform allowance of $200 (current is $500) (Article 22) 13. Court Pay: Reduce minimum court pay for Police Services Officer, Crime Scene Specialists, Fire Inspectors and Police Dispatchers from 3 hour s to 2 hours; add if court duty ends more than one hour prior to the end of the employee's work day, the employee shall report back to work. (Article 7) 14. 4/10 Side Letter: Incorporate side letter goveming the current 4/10 work schedule for Dispatchers into the MOU with a modification to expand the duration of rest periods from 15 minutes to 17.5 minutes (Article 24) 15. Incorporate prior written tentative agreements on City Proposal Nos. 2 (Article 8). 4 (Article 12), 6 (Article 21), 7 (Article 7), 9 (Article 17), 13 (Article 11) and 14 (Article 11). ^r , 16 ,8 7 _ CITY OF NATIONAL CITY MEMORANDUM DATE: May 18, 2010 TO: Honorable Mayor and City Council FROM: Stacey Stevenson, Director of Human Resources SUBJECT: Staff Report Related to the Proposed Resolution of the City Council of the City of National City Implementing Changes in Wages, Hours, and Other Terms and Conditions of Employment for Employees in the Bargaining Unit Represented by the National City Municipal Employees' Association for the Period from January 1, 2010 through December 31, 2010 The City of National City and NCMEA began meeting and conferring on September 10, 2009 in an effort to reach a successor Memorandum of Understanding (MOU). The last MOU between the parties expired on December 31, 2009, and there is currently no agreement in place. A total of twelve bargaining sessions were held. Over the course of bargaining, both sides exchanged proposals and reached tentative agreement on a number of non -economic issues and issues with minimal fiscal impact and agreed to withdraw other proposals. In spite of these efforts, the major economic issues remained on the table and disputed. On March 25, 2010, the City's negotiating team presented NCMEA with the City's "in -the - alternative" Last, Best and Final proposals for two years (January 1, 2010 — December 31, 2011) and one year (January 1, 2010 - December 31, 2010), attached. On April 9, 2010, NCMEA formally rejected both proposals resulting in a declaration of impasse by the City's negotiating team on April 12, 2010. In accordance with City policy, the City Manager, acting as the City's Employer -Employee Relations Officer was notified of the impasse and on May 5, 2010, both the City and the NCMEA negotiating teams met with a mediator in a further effort to reach agreement. After meeting with both groups for several hours, the mediator made a determination that a compromise resulting in an agreement was unlikely and advised moving the matter forward to the City Council. As vested under Chapter 10 of the Government Code (titled Meyers Milias Brown Act) and Council Resolution 95-56 (titled Employer -Employee Relations Policy), if impasse is not resolved, the City Council may take action regarding the impasse as it in its discretion deems appropriate in the public interest. Any action taken by the City Council to resolve the impasse is final and binding. 1 Honorable Mayor and City Council Staff Report, Human Resources Department May 18, 2010 Page 2 Based on the above, staff hereby recommends that the City Council impose upon the NCMEA the City's Last Best and Final offer for the period January 1, 2010 to December 31, 2010 (attached). CITY OF NATIONAL CITY / SEIU LOCAL 221 FOR NATIONAL CITY MEA 2009 MOU NEGOTIATIONS One Year Last, Best and Final of City of National City1 ONE YEAR LAST, BEST AND FINAL PROPOSAL 1. Term: 12 months, 1/1/10 —12/31/10 2. Maintain current wage levels, i.e. no increase or decrease to ranges, through 12/31/10 3. Effective retroactive to January 1, 2010, employees will be required to contribute an additional 1 %, for a total of 3%, toward the Ca1PERS employee member contribution. 4. Second tier retirement of 2% at 60 with single highest year for new hires 5. Furloughs: For non -emergency personnel, the City will be closed for the two - weeks preceding January 1, 2011 to include a 40 hour work furlough. 6. Sick Leave: Clarify definitions and sick leave provisions consistent with Labor Code 233; end past practice of issuing a separate check for sick leave incentive pay (Article 8) 7. Health: Delete names of providers from MOU and add language to tie City contributions to lowest cost health and dental plans. Add language that, "The City and MEA agree to work cooperatively to develop a Health Savings Account option for employees in 2010. Add language clarifying that retiree health benefit does not entitle the retiree to any particular insurance or any particular rate. (Article 14) 8. Nutrition Center: The City and MEA agree to continue discussions outside of MOU discussions on the impact of converting from a City division to a non-profit entity in an attempt to reach a side letter agreement. 9. Holidays: Strike old/outdated holiday closure language (Article 2) Any terms and conditions ultimately imposed would remain in place until different terms and conditions were negotiated and agreed to or different terms and conditions were imposed. City of National City SEIU Local 221 / National City MEA 2009 MOU Negotiations City One Year Last, Best and Final Proposal Page 2 10. Vacation: Delete old language requiring employees to use 60 hours of leave prior to vacation sell back (current is 50 hours); clarify the eligibility period to be the first pay period in December to the last pay period in November (Article 1) 11. Transfer of Leave Credits: Add language so it is consistent with the current Catastrophic Leave policy (Article 9) 12. Allowances: Delete prior cleaning allowance of $3 (current is $5) and delete prior fire uniform allowance of $200 (current is $500) (Article 22) 13. Court Pay: Reduce minimum court pay for Police Services Officer, Crime Scene Specialists, Fire Inspectors and Police Dispatchers from 3 hour s to 2 hours; add if court duty ends more than one hour prior to the end of the employee's work day, the employee shall report back to work. (Article 7) 14. 4/10 Side Letter: Incorporate side letter governing the current 4/10 work schedule for Dispatchers into the MOU with a modification to expand the duration of rest periods from 15 minutes to 17.5 minutes (Article 24) 15. Incorporate prior written tentative agreements on City Proposal Nos. 2 (Article 8). 4 (Article 12), 6 (Article 21), 7 (Article 7), 9 (Article 17), 13 (Article 11) and 14 (Article 11). ZI March 25, 2010 Satomi Ziegler Worksite Organizer SEIU, Local 221 4004 Kearny Mesa Road San Diego, CA 92111 Delivered via email and US mail Re: City of National City/SEIU (NCMEA) Labor Negotiations Last, Best and Final Proposals of the City Dear Ms. Ziegler: This letter discusses the status of negotiations between the City of National City (City) and SERI Local 221 for a successor MOU between the City and the National City Municipal Employees - Association (NCMEA) and encloses the City's in -the -alternative last, best and final proposals for a 2-year MOU and a 1-year MOU. The 1-year proposal also reflects the terms and conditions the City bargaining team would recommend be imposed if the parties are not able to reach agreement on a successor MOU. As you know, the City began a series, of meeting with you and your bargaining team on September 10, 2009, in an effort to reach a successor MOU. To date, there have been twelve meetings and a successor agreement has yet to be reached. The last MOU between the parties expired on December 31, 2009, and there currently is currently no agreement in place. . During the September 30, 2009 negotiating session, the City's Finance Director presented a budget overview during which the City's projected deficit was outlined. In addition, the City's bargaining team has discussed with you the challenging state of the City's finances throughout the course of bargaining. On January 30, 2010, the City Council held a mid year budget workshop attended by you and members of your team. During the course of the budget workshop, the Finance Director presented a budget picture that included a projected general structural deficit in the current fiscal year and each of the next four fiscal years. The City Council voted to deplete several undesignated fund balances to balance the current fiscal year. During the negotiation meetings that followed this budget workshop, the City's bargaining team continued to discuss with you the declining state of the City's finances. On January 28, 2010, the City presented you with two package proposals: a two year package and a one year package. On March 4, 2010, SEIU on behalf of NCMEA rejected both packages. Human Resources Department 140 E. 12t, Street, Suite A, National City, CA 91950-3312 619/336-4300 Fax 619/336-4303 www.nationalcityca.gov CP s In your rejection, you called for a "status quo" contract and did not propose or agree to any reduction in pay or benefits to help address the City's structural deficit. Instead, you expressed a desire that the City Council use funds set aside in an undesignated Civic Center Refurbishment fund to cover the savings the City seeks to achieve from its proposals. As discussed in the mid year budget workshop, this fund was left in tact to cover the significant rate spike CaIPERS estimates in the next few years for City employees, including those represented by NCMEA. After reviewing this matter, the City Council's mid year budget adjustments voted on January 30, 2010 and reaffirmed through a second vote at the February 16, 2010 City Council meeting remain unchanged, including the decision to reserve the Civic Center Refurbishment fund for the Ca1PERS spike. During these negotiations, the City has made various concessions and changes to its proposals in an effort to reach agreement. Unfortunately, the parties have not been able to reach agreement on the key issues, and thus now appear at impasse. Accordingly, the City is enclosing its last, best and final proposals — one for the period January 1, 2010 — December 31, 2011 and an in the alternative 1-year last, best and final for the period January 1, 2010 — December 31, 2010. As you will see, the City's 2-year last, best and final is identical from the City's January 28, 2010 package proposal. The 1-year last, best and final proposal, which also reflects the terms and conditions the City bargaining team would recommend for imposition if no agreement can be reached, is similar to the 2-year proposal, but does not include any stipend or an increase in the maximum sell back of sick leave or additional pants for the traffic painting crew. The 1-year last, best and final also includes a 2nd tier for new hires of 2% at 60 rather than 2.5% at 55, and makes the additional one percent employee contribution to PERS (for a total of 3%) effective retroactive to January 1, 2010 rather than effective the first full pay period in January, 2011. The City requests that NCMEA either agree to the 2-year last, best and final proposal or present the City's last, best and final proposals to NCMEA's membership. We also request that you respond to the proposals (preferably following a membership meeting in which the proposals are discussed) no later than next Monday, April 5, 2010. If NCMEA's position has not changed, and we note that NCMEA's position regarding a new "status quo" agreement has not substantially changed since October 28, 2009 despite the City's financial realities, then the City negotiating team will submit a formal request to the Employer/Employee Relations Officer to begin impasse proceedings. If you would like to discuss this letter or the enclosed proposals, or need clarification, I can be reached at (619)336-4308 or sstevenson annationalcitvca.gov. Enclosures cc: George Eiser, City Attorney Claudia Silva, Senior Assistant City Attorney Edward Kreisberg, Principal, Meyers Nave CITY OF NATIONAL CITY / SEIU LOCAL 221 FOR NATIONAL CITY MEA 2009 MOU NEGOTIATIONS Last, Best and Finals of City of National City 3125110 The City provides the following in-the-altemative last, best and final proposals for two years (1/1/10 12/31/11 and one year (1/1/10 —12/31/10). The 1-year last, best and final also reflects the terms and conditions the City bargaining team would recommend be imposed if the 2-year proposal is rejected and the parties cannot reach an agreement on a successor MOU. 2-YEAR LAST, BEST AND FINAL PROPOSAL 1. Term: 24 months, 1/1/10 —12/31/11 2. Wages: a. Maintain current wage levels, i.e. no increase or decrease to ranges, during MOU b. Provide one time stipend of $1,000 in the first full pay after ratification c. Re -opener in 2nd year of MOU to discuss wages. The parties agree to up to six meetings. If there is no agreement, then the status quo on wages will continue. 3. CalPERS (Article 18): Second tier retirement of 2.5 % at 55 with single highest year for new hires. 4. CalPERS (Article 18): Effective the first full pay period in January 2011, employees will be required to contribute an additional 1%, for a total of 3%, toward the CalPERS employee member contribution 5. Furloughs: 40 furlough hours for non -emergency personnel to be taken each December as set forth in City's January 28, 2010 proposal. (new article) (see attached.) 6. Sick Leave: Clarify definitions and sick leave provisions consistent with Labor Code 233; end past practice of issuing a separate check for sick leave incentive pay (Article 8) 7. Health: Delete names of providers from MOU and add language to tie City contributions to lowest cost health and dental plans. Add language that, "The City and MEA agree to work cooperatively to develop a Health Savings Account option for employees in 2010. Add language clarifying that retiree health benefit does not entitle the retiree to any particular insurance or any particular rate. (Article 14) 8. Nutrition Center: The City and MEA agree to continue discussions outside of MOU discussions on the impact of converting from a City division to a non-profit entity in an attempt to reach a side letter agreement. 9. Holidays: Strike old/outdated holiday closure language (Article 2) 2 City of National City SEIU Local 221 / National City MEA 2009 MOU Negotiations City Proposals - 2/24/10 Page 2 10. Vacation: Delete old language requiring employees to use 60 hours of leave prior to vacation sell back (current is 50 hours); clarify the eligibility period to be the first pay period in December to the last pay period in November (Article 1) 11. Transfer of Leave Credits: Add language so it is consistent with the current Catastrophic Leave policy (Article 9) 12. Allowances: Delete prior cleaning allowance of $3 (current is $5) and delete prior fire uniform allowance of $200 (current is $500) (Article 22) 13. Court Pay: Reduce minimum court pay for Police Services Officer, Crime Scene Specialists, Fire Inspectors and Police Dispatchers from 3 hour s to 2 hours; add if court duty ends more than one hour prior to the end of the employee's work day, the employee shall report back to work. (Article 7) 14. 4/10 Side Letter: Incorporate side letter governing the current 4/10 work schedule for Dispatchers into the MOU with a modification to expand the duration of rest periods from 15 minutes to 17.5 minutes (Article 24) 15. Incorporate prior written tentative agreements on City Proposal Nos. 2 (Article 8). 4 (Article 12), 6 (Article 21), 7 (Article 7), 9 (Article 17), 13 (Article 11) and 14 (Article 11). 16. Incorporate prior written tentative agreements on SEIU Proposal Nos. 4 (Article 8) [enhance ability for employees to substitute sick leave for vacation], 11 (Article 8) [increase maximum sick leave sell back levels] and 15 (Article 22) [provide five changes of pants to traffic painting crew who will be required to wear the provided pants'. CITY'S LAST, BEST AND FINAL FOR ONE YEAR (AND THE TERMS AND CONDITIONS THE CITY BARGAINING TEAM WOULD RECOMMEND BE IMPOSED IF THE PARTIES CANNOT REACH AGREEMENT ON A SUCCESSOR MOW The City's last, best and final proposal for a 1-year term (1/1/10 to 12/31/10) incorporates Item Nos. 5-15 and does not incorporate Item Nos. 1-4 and 16 from the City's 2-Year last, best and final proposal above. In addition, this 1-Year last, best and final includes the following terms: Maintain current wage levels, i.e. no increase or decrease to ranges, through 12/31/10 Second tier retirement of 2% at 60 with single highest year for new hires Effective retroactive to January 1, 2010, employees will be required to contribute an additional 1%, for a total of 3%, toward the CaIPERS employee member contribution. 1 Any terms and conditions ultimately imposed would remain in place until different terms and conditions were negotiated and agreed to or different terms and conditions were imposed. 9 City of National City Furlough Proposal (proposal 28) Non -Emergency Personnel a. 40-hours of furlough during each fiscal year to be used the last two weeks of December, of each year b. Two -weeks preceeding January 1 of each fiscal year, City will be closed with holidays, floaters and furlough allocated as follows (for 4/10 schedules): i. December 20-31, 2010 : city closed Dec 20-22: 30 hours of furlough Dec 23: 8 hours of holiday in lieu of the Dec 24 floater (it's on a Friday) + 2 hours Vacation or other floater time or flex time Dec 27: 8 hours of holiday in lieu of the 12/25 holiday + 2 hours vacation or other floater time or flex time Dec 28: 10 hours of furlough Dec 29: 10 hours vacation/leave time Dec 30: 8 hours of holiday in lieu of Jan 1 Holiday + 2 hours vacation/ floater/ flex time ii: December 19-30, 2011: city closed Dec 19-21: 30 hours furlough Dec 22: 8 hours of holiday in lieu of the Dec 24 holiday + 2 hours Vacation/ Floater/ flex time Dec 26: 8 hours of holiday in Lieu of the 12/25 holiday + 2 hours vacation or other floater time or flex time Dec 27: 10 hours furlough CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 18, 20101 AGENDA ITEM NO.2 EM TITLE: Resolution of the City Council of the City of National City Approving Changes in Wages, Hours, and Other Terms and Conditions of Employment for Confidential Employees for the Period from January 1, 2010 through December 31, 2011. PREPARED BY: Stacey Stevenson, HR Directoii DEPARTMENT: PHONE: 336-4308 APPROVED BY EXPLANATION: See attached staff report. s FINANCIAL STATEMENT: APPROVED: c p Finance ACCOUNT NO. APPRO/61 MIS The estimated savings associated with the terms for FY 2010-2011 is $5,499, and for FY 2011-2012 is $17,435. ENVIRONMENTAL REVIEW: N/P, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Recommend approval of resolution.'' BOARD / COMMISSION RECOMMENDATION: INIP. ATTACHMENTS: solution _. aff Report RESOLUTION NO. 2010 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY IMPLEMENTING CHANGES IN WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT FOR CONFIDENTIAL EMPLOYEES FOR THE PERIOD FROM JANUARY 1, 2010 THROUGH DECEMBER 31, 2010 WHEREAS, while not a formally recognized bargaining unit, the City of National City's Confidential Employees Group has proposed changes in wages, hours, benefits, and other terms and conditions of employment for the Group's members; and WHEREAS, on May 12, 2010, the City Manager agreed to recommend approval of the Confidential Employees Group proposal to the City Council, which proposal is attached hereto as Exhibit "A", and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that effective January 1, 2010, the proposed changes in wages, hours, and terms and conditions of employment for Confidential employees for the period from January 1, 2010 through December 31, 2011, shall be implemented. BE IT FURTHER RESOLVED that the City Manager is hereby directed to implement said changes and to reflect said changes in the compensation plan contained therein in the final budget for Fiscal Year 2009-2010. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney EXHIBIT A CITY OF NATIONAL CITY MEMORANDUM DA 1'E: May 18, 2010 TO: Honorable Mayor and City Council FROM: Stacey Stevenson, Director of Human Resources SUBJECT: Staff Report Related to Resolution of the City Council of the City of National City Approving Changes in Wages, Hours, and Other Terms and Conditions of Employment for Confidential Employees for the Period from January 1, 2010 through December 31, 2011 While not a formal bargaining group, the City of National City's Confidential Employee Group has proposed changes in wages, hours, benefits and other terms and conditions of employment for the meinbers of the Group. On May 12, 2010, the City Manager agreed to recommend to the City Council that the Council approve the Group's proposal, consisting of the following: 1. Term: January 1, 2010 through December 31, 2011 2. Waaes: a. Maintain current wage levels, i.e. no increase or decrease to ranges, during the term of the agreement b. Provide one time stipend of $1,000 in the first full pay period in January, 2011 c. Re -opener in 2nd year to discuss wages. 3, Retirement: a. Effective the first full pay period in January 2011, employees will be required to contribute an additional 1%, for a total of 3%, toward the Ca1PERS employee member contribution b. Second. tier retirement of 2. % at 60 with single highest year for new hires. 3. Furloughs: 40 furlough hours to be taken each December in calendar years 2010 and 2011. 4. Sick Leave: a. Substitution of sick leave credits for vacation on a day for day basis with a doctor's statement or other satisfactory evidence. Honorable Mayor and City Council Staff Report, Human Resources Department May 18, 2010 Page 2 b. Employees using 36 hours of sick leave or less during the 26 complete pay periods of each fiscal year and having a minimum accrual of 160 hours may sell for cash the excess over 160 hours according to the following schedule: Unused Sick Leave From Current Year's. Accrual Annual. Maximum Sell Back .' 96 Hours 48 Hours From 80-95 Hours 44 Hours From 60-79 Hours 40 Hours 5. Employees may use accrued leave to supplement STD/L ID up to the employee's regular gross monthly pay. All other previously agreed to terms and conditions of employment shall remain unchanged. Staff recomme ' s approval of the above agreement. NSON City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE May 18, 2010 AGENDA ITEM NO. 23 ITEM TITLE TEMPORARY USE PERMIT — St. Anthony of Padua Festival on June 5-6, 2010 from--- 11:00 a.m. to 6:30 p.m. daily at 1816 Harding Avenue with no waiver of fees. PREPARED BY Vianey Rolon, 336-4364 EXPLANATION DEPARTMENT Neighborhood Services Division This is a request from St. Anthony's Church to conduct a festival located at 1816 Harding Ave. from 11:00 a.m. to 6:30p.m. from Saturday, June 5 thru Sunday, June 6, 2010. The event will consist of carnival style game booths, musical entertainment and concession canopies. The applicant will provide overnight on -site security for the event. Portable restrooms will be provided, as well. The applicant is requesting that Harding Ave. between 18th St. and 19a' St. be closed Saturday, June 5, 2010 at 5:00 a.m. through Sunday, June 6, 2010, 6:30 p.m.. Harding will reopen at 7p.m.on Sunday. Environmental Review X N/A Financial Statement Approved By: Finance Director The City has incurred $237.00 for processing the TUP through various City departments, plus $200.00 for the Fire permits and $72.47 for Public Works. Total fees are $509.47. Account No. STAFF RECOMMENDATION Approve the Application for a Temporary Use Permit subject to compliance with all conditions of approval. y, S-/2-io BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below ) Resolution No. Application for a Temporary Use Permit with recommended approvals and conditions of approval. A-200 (9199) Type of Event: _ Public Concert Parade _ Motion Picture Event Title: et Event Location: Fair _ Demonstration Grand Opening _ Festival _ Community Event Circus _ Block Party A. Other CkuVc.tt 6dert- 6.4.1 &tp 44f [tOttS A- EventDate(s): From (91S1►0 to 4 / PO Total Anticipated Attendance: 506-06° Month/Day/Year ( ✓Participants) ( Spectators) Actual Event Hours: 12 am/ 9to U arr& Setup/assembly/construction Date: (611� lb Start time: iZrvK Please describe the scope of your setup/assembly work (specific details): 1:4Afeato cfrtef poi It �U„f,ti f e l u a J / Ven�de�✓ lop t'� card -es , uvc Ui sP0,��,e-v pOp tie trwort:65 , (eo" ybu.i }ulc e$ 61il�ttbi Dismantle Date: b (S t Its Completion Time:mamen List any street(s) requiring closure as a result of this event. Include street name(s), day and time of closing and day and time of reopening. Sponsoring Organization: emwevifoo Auvat Csiti4 tit- Q Chief Officer of Organization (Name) ei/taib k go -et Applicant (Name): GottVe, � talc, Address: f 414- t Uu'x --2e--2v VOCid,hil.41A44 G k 1 Cl C) V SO Daytime Phone: ((ytO) Q?-C}3?- Evening Phone: ( ) Fax: (09) 4z-S - $ L71 Contact Person "on site" day of the event: & Ai. FkaiU Pager/Cellular ( (') For Profit ✓Not -for -Profit NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT AND IMMEDIATELY AVAILABLE TO CITY OFFICIALS 1 Is your organization a "Tax Exempt, nonprofit" organization? )( YES _ NO Are admission, entry, vendor or participant fees required? _ YES X NO If YES, please explain the purpose and provide amount(s): $ Estimated Gross Receipts including ticket, product and sponsorship sales from this event. Estimated Expenses for this event. What is the projected amount of revenue that the Nonprofit Organization will receive as a result of this event? Please provide a DETAILED DESCRIPTION of your event. Include details regarding any components of your event such as the use of vehicles, animals, rides or any other pertinent information about the event. Akv-vL\ ved bu74-1 04 ctAAd $ La( 1 o u. -}�txtva.cjAtt a.4, 4c amA i r- c„c . tokt_moved fix.o rwe y pup itch �a��Q Ao tot x),1 L w,r 1,91411,14 r)(-FrieN. 47-1 6\iLvv( , t.k A t ket6 Xat wade ailitd YES tr If the event involves the sale of cars, will the cars come exclusively from National City car dealers? If NO, list any additional dealers involved in the sale: 2 _ YES )C NO Does the event involve the sale or use of alcoholic beverages? _ YES )C NO Will items or services be sold at the event? If yes, please describe: _ YES X NO Does the event involve a moving route of any kind along streets, sidewalks or highways? If YES, attach a detailed map of your proposed route indicate the direction of travel, and provide a written narrative to explain your route. _ YES X NO Does the event involve a fixed venue site? If YES, attach a detailed site map showing all streets impacted by the event. _ YES _ NO Does the event involve the use of tents or canopies? If YES: Number of tent/canopies 4 Sizes 3 lOX 1O' - i 'n IC X Zoe NOTE: A separate Fire Department permit is required for tents or canopies. _ YES )4, NO Will the event involve the use of the City stage or PA system? In addition to the route map required above, please attach a diagram showing the overall layout and set-up locations for the following items: ➢ Alcoholic and Nonalcoholic Concession and/or Beer Garden areas. ➢ Food Concession and/or Food Preparation areas Please describe how food will be served at the event: is , A If you intend to cook food in the event area please specify the method: GAS ELECTRIC CHARCOAL )C OTHER (Specify): ➢ Portable and/or Permanent Toilet Facilities Number of portable toilets: (1 for every 250 people is required, unless the applicant can show that there are facilities in the immediate area available to the public during the event) ➢ Tables and Chairs > Fencing, barriers and/or barricades > Generator locations and/or source of electricity > Canopies or tent locations (include tent/canopy dimensions) > Booths, exhibits, displays or enclosures ➢ Scaffolding, bleachers, platforms, stages, grandstands or related structures > Vehicles and/or trailers > Other related event components not covered above • Trash containers and dumpsters (Note: You must properly dispose of waste and garbage throughout the term of your event and immediately upon conclusion of the event the area must be returned to a clean condition.) Number of trash cans: Trash containers with lids: 1-ems tp COni�. Describe your plan for clean-up and removal offt waste and garbage during and after the event: Gill'al �l1 1/D liM14ef li K ,, C [-ea-4 t 3 Please describe your procedures for both Crowd Control and Internal Security: Ctu-n vb kL 4eev 1`tE rev ide [ht3j-(4 emvod to -A ttAAd _ YES NO Have you hired any Professional Security organization to handle security arrangements for this event? If YES, please list: Security Organization: Security Organization Address: Security Director (Name): Phone: _ YES ?X. NO Is this a night event? If YES, please state how the event and surrounding area will be illuminated to ensure safety of the participants and spectators: Please indicate what arrangement you have made for providing First Aid Staffing and Equipment. tikvwcin Vtis �i e� 11todka(� 614 U,;1( P' e [ and 606114. Please describe your Accessibility Plan for access at your event by individuals with disabilities: Nutt'cio tN; �t is��N �civ�- /� �'Stt1-i J (Rs., Please provide a detailed description of your PARKING plan: c(nuv l ( f,r14 p.1 14-I des tall „4A-elf < E4, vb ivtit-key Please describe your plan for DISABLED PARKING: O'tUi, iv t,1.t tt O JS -Qx �t � (L a — 4 ?,wd-ty 4 Please describe your plans to notify all residents, businesses and churches impacted by the event: F �t-ei�hboYl'trxrR f-�{e+�� w�` vyy{-t ' No `7z.- p_aars ?v 1-0 •••'u NOTE: Neighborhood residents must be notified 72 hours in advance when events are scheduled in the City parks. YES _ NO Are there any musical entertainment features related to your event? If YES, please state the number of stages, number of bands and type of music. Number of Stages: f 1 Number of Bands: Type of Music: 00�te-a-v at✓t5 1`-41 /&iOO 1 IYES _ NO Will sound amplification be used? If YES, please indicate: Start time: ar !pr Finish Time to am/(m X_ YES _ NO Will sound checks be conducted prior to the event? If YES, please indicate: Start time: 1 ame Finish Time am/0 Please describe the sound equipment that will be used for your event: 1( valp ,, -e tap 4,i.e.0 - (A Z- is _ YES NO Fireworks, rockets, or other pyrotechnics? If YES, please describe: X. YES _ NO Any signs, banners, decorations, special lighting? if YES, please describe: -ThriCct roe r� r 4 n-ed Revised 08/10/05 5 Google Maps http://maps.google n/maps?hl=en&wn=1&ie=UTF-8&q=las+paten.. Goo e maps To see all the details that are vis:le on the screen,use the 'Print" link next to the map. Report a problem Te Sf^V � J 6telgoevid rtvgie _ ?o? uP enHerru 1 of 1 4/22/2010 9:38 AM For Office 'Use OnCy Event: Department Date Approved? Yes No Initial Specific Conditions of Approval Council Meeting Date: Approved: Yes No Vote: Kathleen Trees, Director Building & Safety Department 6 City of National City PUBLIC PROPERTY USE HOLD HARMLESS AND INDEMNIFICATION AGREEMENT Persons requesting use of City property, facilities or personnel are required to provide a minimum of $1,000,000 combined single limit insurance for bodily injury and property damage which includes the City, its officials, agents and employees named as additional insured and to sign the Hold Harmless Agreement. Certificate of insurance must be attached to this permit. Organization i"60 t:- gso 1)-1p Person in Charge of Activity rdaie 40,j Address i Ln k eA-v,A-kv 7 d4 i csrrtct (Ca I Gfi Ste) Ski Telephone COO) Date(s) of Use 0151 ID HOLD HARMLESS AGREEMENT As a condition of the issuance of a temporary use permit to conduct its activities on public or private property, the undersigned hereby agree(s) to defend, indemnify and hold harmless the City of National City and the Parking Authority and its officers, employees and agents from and against any and all claims, demands, costs, losses, liability or, for any personal injury, death or property damage, or both, or any litigation and other liability, including attorneys fees and the costs of litigation, arising out of or related to the use of public property or the activity taken under the permit by the permittee or its agents, employees or contractors. plica ,c -i c.fE Official Title For Office Use Only 9-?,90I0 Date Certificate of Insurance Approved Date 7 Non-profit organizations, which meet the criteria on page v of the instructions, will be considered for a waiver. If you would like to request a waiver of the processing fees, please complete the questionnaire below. 1. Is the event for which the TUP is sought sponsored by a non-profit organization? ' ( Yes (proceed to Question 2) No (Please sign the form and submit it with the TUP Application) 2. Please state the name and type of organization sponsoring the event for which the TUP is sought and then proceed to Question 3. Name of the sponsoring organization 6ev412 if Cca Type of Organization uvc-tn (Service Club, Church, Social Service Agency, etc.) 3. Will the event generate net income or proceeds t the sponsoring organization? Yes (Please proceed to Question 4) No (Please sign the form and submit it with the TUP Application) 4. Will the proceeds provide a direct financial benefit to an individual who resides in or is employed in the city, and who is in dire financial need due to health reasons or a death in the family? Yes (Please provide an explanation and details. )6' No (Please proceed to Question 5) 8 5. Will the proceeds provide a direct financial benefit to city government such as the generation of sales tax? Yes (Please provide an explanation and details. ? No (Please proceed to Question 6) 6. Will the proceeds provide a direct financial benefit to a service club, social services agency, or other secular non-profit organization located within the city such as Kiwanis, Rotary, Lions, Boys and Girls Club? Yes (Please provide an explanation and details. No (Please proceed to Question 7) 7. Will the proceeds provide a direct financial benefit to an organization, which has been the direct recipient of Community Development Block Grant (CDBG) funding? Yes Year funds were received: Funds were used to: iQ No (P lease sign the form and submit it with the TUP Application) 9 City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE May 18, 2010 AGENDA ITEM NO. 24 /EM TITLE TEMPORARY USE PERMIT — Baptism and BBQ sponsored by Cornerstone Church of Sa Diego at Las Palmas Park on August 23, 2010 from 12 p.m. to 8 p.m. with no waiver of fees. A Facilities Use Permit is required for the use of the Municipal Pool. PREPARED BY EXPLANATION Vianey Rolon, 336-4364 DEPARTMENT Neighborhood Services Division This is a request from the Cornerstone Church of San Diego to conduct a BBQ at the Las Palmas Park on August 23, 2010 from 12:00pm to 8 pm. This event will also include a series of baptisms performed at the Las Palmas Municipal Pool. Set up for the event will commence at 12:00 p.m. on the day of the event. Cornerstone Church will set up their stage and will provide their own generators for amplified sound where the worship band will sing and perform from 2 p.m. to 8 p.m. Three 10x10 canopies and one 10x20 canopy will be used. The applicant is not requesting the use of the City's stage and will provide security for the event. Environmental Review X N/A Financial Statement Approved By: The City has incurred $237.00 for processing the TUP, $200 for Fire Permits, and an NPDES inspection fee of $ 95.98 Total fees: $532.98 Finance Director Account No. STAFF RECOMMENDATION Approve the Application for a Temporary Use Permit subject to compliance with 1 conditions of approval with no waiver of fees. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. Application for a Temporary Use Permit with recommended approvals and conditions of approval. A-200 (9/99) Event Date(s): From/ �/' t'0 to 5 r. Month/Day Actual Event Hours: ILAI Type of Event: Public Concert Parade Motion Picture _ Fair ,X Festival Demonstration • Circus Grand Opening Other Community Event Block Party Event Title: 5 7 i ACT iWG')tti GF f f ; /r i.'/ L Event Location: / �%j / 6 H Y r,D! Pip A- ye am/gym ear 0 (.0! U Setup/assembly/construction Date:O� rr/ Total Anticipated Attendance: - c/6i Lz V Participants) (300 Spectators) !(/Start time: 5 fj vti Please describe the scope of your setup/assembly work (specific details): Se / - n p CMNof / e , FoGO /3oo74-4 Cny e bo077 i Fo rjt rt-Tt0 N P>o� T/4 Pe' r T t s , n� �� o rTQ lh l� Dismantle Date: Completion Time: 7'ipr/ a m " e 5400/rr t P List any street(s) requiring closure as a result of this event. Include street name(s), day and time of closing and day and time of reopening. /-/ r!/M Are /2).e:Tiv eeN t' 5Tr .e Psi }-( i--r n l nt iv-, L L e M p- ,— 71p <1 Nip Sponsoring Organization: S• 7, 19- jiq %-%%% Ai/ y 0 F PR-Pk7 A For Profit Not-foP -ofit Chief Officer of Organization (Name) r T / /, Jet ti Ai lip Applicant p 47-e ( y/ o£ i Applicant (Name): 55 I / , Ai / %�O At / n 0 F i' j�},)/ /1 a et C v r c)1 ) Address: ( �j / H ieir D / yr. y The ,e Daytime Phone: 6,/f) 117 7-'rffening Phone: (� ��} y � Fax: ([( �� 117 2-- g 7G e Contact Person "on sit& day of the event: i r C c' y? TC / Cr f� < VC M I Pager/Cellular: 6' (rj 3 00 2 97 1 D NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT f"�J AND IMMEDIATELY AVAILABLE TO CITY OFFICIALS J+, Vt t0� �' r L.)/l ���STf Dtls ,+( �' C % �t KtZ T U�t£C6uhc a�j°lt,t e et,a4 t t `isa() Is your organization a "Tax Exempt, nonprofit" organization? YES _ NO Are admission, entry, vendor or participant fees required? YES X NO If YES, please explain the purpose and provide amount(s): $ Estimated Gross Receipts including ticket, product and sponsorship sales from this event. $ Estimated Expenses for this event. $ What is the projected amount of revenue that the Nonprofit Organization will receive as a result of this event? Please provide a DETAILED DESCRIPTION of your event Include details regarding any components of your event such as the use of vehicles, animals, rides or any other pertinent information about the event _D & 2c I / 15 Cz N Ter 7 ,,n e, /11(A C_ p i M7 5 FUG rr e PfogF Cca mpr-e 5 /73- 1 o01 itS) L N fc2M 4-/7ON (jc -77--is �or7a bf-e s W, // 6.e Pro v i .0 el YES ONO If the event involves the sale of cars, will the cars come exclusively from National City car dealers? If NO, list any additional dealers involved in the sale: 2 YES ?ONO Does the event involve the sale or use of alcoholic beverages? YES NO Will items or services be sold at the event? If yes, please describe: YES ?ONO Does the event involve a moving route of any kind along streets, sidewalks or highways? If YES, attach a detailed map of your proposed route indicate the direction of travel, and provide a written narrative to explain your route. �C1 YES _ NO Does the event involve a fixed venue site? If YES, attach a detailed site map showing all streets impacted by the event_ X YES _ NO Does the event involve the'e of tents or canopi? tf Y -4 Se e 1 Number of tent/canopies O Sizes t) NOTE: A separate Fire Department permit is required for tents or canopies- YES X NO Will the event involve the use of the City stage or PA system? In addition to the route map required above, please attach a diagram showing the overall layout and set-up locations for the following items: Alcoholic and Nonalcoholic Concession and/or Beer Garden areas. Food Concession and/or Food Preparation areas Please describe how food will be served at the event: % if P2 (' 5 9 rtl 4 61fi! 6,e W1Gvers, a 44ackdl H%i r Weis,, /1 /-1 e $ / TH If you intend to cook food in the event area please specify the method: GAS ELECTRIC �0 CHARCOAL OTHER (Specify): Portable and/or Permanent Toilet Facilities Number of portable toilets: 3 (1 for every 250 people is required, unless the applicant can show that there are facilities in the immediate area available to the public during the event) Tables and Chairs Fencing, barriers and/or barricades Generator locations and/or source of electricity Canopies or tent locations (include tent/canopy dimensions) Booths, exhibits, displays or enclosures Scaffolding, bleachers, platforms, stages, grandstands or related structures S Vehicles and/or trailers Other related event components not covered above Trash containers and dumpsters (Note: You must properly dispose of waste and garbage throughout the term of your event and immediately upon conclusion of the event the area must be returned to a clean condition.) Number of trash cans: 3 G Trash containers with lids: Describe your plan for clean-up and removal of waste and garbage during and after the event: j A-s /� a,�, rati L 6c ,rt CCntp t Mr, % rot 5 if Ale > T 14r 4t i Ne Aty l-n.Os Please describe your procedures for both Crowd Control and Internal Security: 5.e cur/ T r vvi i/ b o Baia-e Pe-0 5H in-avkits �} ie //rC,T�y Pa/ieeO ec,,k. ✓e-NIe G/�le .e/% liW .S/Te /9-FTer /Hours YES X NO Have you hired any Professional Security organization to handle security arrangements for this event? If YES, please list: Security Organization: Security Organization Address: Security Director (Name): Phone: YES X NO Is this a night event? If YES, please state how the event and surrounding area Cw,{it be illuminated to ensu safety or the p rficipants and spectators: 1►'1 was e NcTe3 Wk�M �iFr/L, Lip-/, r W<,/ , GA�Njeoe ,}r0Pf kp T eadril 4i9ii�,.. »re4 , r Please indicate was rrangement you have made for providing First Aid Staffing and Equipment. 14 Firs % 19-" h /Gs T W i 11 Pe iii}-,vn #4 j ,.yN Fri ,0 7 1, Ce // 14", 11 / h'fg/( Ale Plea e describe your Accessibility Plan for access at your event by individuals with disabilities: / rw/) i c ie-lo 1Pf► r,�/,� f3 ✓f 4/,9b Pleq..e provide a detailed description of your PARKING plan: fFr lLlny /tL.ex7 to i Pr2uNO Per 1 5%' Please describe your ptan for DISABLED PARKING: 41 Arles PArle- 4 Please describe your plans to notify all residents, businesses and churches impacted by the event: r 1 14/1Fp ie�'S,��NJs /wG 8/ve%Ql6,pius Prior iU kTyeN T G e ST 2 c.Yea/Ls ,, , NOTE: Neighborhood residents must be notified 72 hours in advance when events are scheduled in the City parks. YES NO Are there any musical entertainment features related to your event? If YES, please state the number of stages, number of bands and type of music. Number of Bands: ( vkittbaN YES NO Will sound amplification be used? If YES, please indicate: l-YES Number of Stages: Type of Music: tiv Start time: pm Finish Time NO Will sound checks be conducted prior to the event? If YES, please indicate: Start time: (O i3 p prn Finish Time ar m Please describe the sound equipment that will be used for your event: PJ g44t ir1eM% YES p NO Fireworks, rockets, or other pyrotechnics? If YES, please describe: tYES __ NO Any signs, banners, decorations, special lighting? If YES, please describe: gi-Ivmers or Cilurel eroperr%, ! v A NNoue.e Lty1iii t &iyiib T� 1 Dus/� Revised 08/10/05 Event: For Office 'Use Only Department Date Approved? Yes No Initial Specific Conditions of Approval Council Meeting Date: Approved: Yes No Vote: Kathleen Trees, Director Building & Safety Department 6 kkik r e5 .5 /m 1c)t. • (X ) r SW CA 5 &erg al/ ) () I i / 0 1 6 c.x.70's "o I / I / ti i ' ' ( I i I -1 5e ol-,112 H I 1 tZt, I 1 . ; 1 1 I EeeiTIN, 1 '' 1 9 f 1 H (X) 3 0 / / Type of Event: Public Concert Parade Motion Picture Fair j'Festival Community Event _ Demonstration /� Circus _ Block Party _ Grand Opening Other IY nr T frfaMr aF Pf9 th (Y+ 1016 H rD/ ft re Event Date(s): From(' / O to Event Title: Event Location: (/ Total Anticipated Attendance: 'too 541, Month/Day ear5it (3 0 Participants) (ern a (3afl Spectators) Actual Event Hours: xIV\ am/ m to Setup/assembly/construction Date:O G `J «Start time: 5 ff ►� Please describe the scope of your setup/assembly work (specific details): SeT- `p Ci9MO/2res, / o*j' 6O7h'5, &, Ale bocTf-/ yNFrmn-TrwN b40 TIIs1 ParTtii s�R� /���rT4hl Dismantle DateCompletion Time: % 2@ 120wpt f List any street(s) requiring closure as a result of this event. Include street name(s), day and time of closing and day and time of reopening. >� 14 r J/ n- j- Are 6.e.Tvv eeN f e ¢ f1 c s rc e rI H 1#1-r i/ tt,- wI Real e 4 i 7p pi Sponsoring Organization: S 7 N % 1e.2 my OF p4 711 R For Profit Not-fo P ofit Chief Officer of Organization (Name) Fr, / /4'i 14 Al 1)0 7 i% P 4 7 -ri- 510, Applicant (Name): 5 if F M% go N y OF PPS e Y p� f Address: /' 14 H i4IrfD�/� t it II e l� �7 Daytime Phone: i ) e17 7 - 4/1 e/eeJning Phone: (�f /f) till- l Fax: (�! /vg y7 , - �7G Contact Person "on site" day of the event: VI C e d7 T c rat VGA/ PagerfCellular: (9 3 as - 2 7� NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT AND IMMEDIATELY AVAILABLE TO CITY OFFICIALS C M -_L U'tµi(L CovtAG7 aQal.v<<rt.� Ct...tva-4 �� � -1- cis ao YES ONO Does the event involve the sale or use of alcoholic beverages? NYES NO Will items or services be sold at the event? If yes, please describe: YES 40NO Does the event involve a moving route of any kind along streets, sidewalks or highways? If YES, attach a detailed map of your proposed route indicate the direction of travel, and provide a written narrative to explain your route. fi` YES NO Does the event involve a fixed venue site? If YES, attach a detailed site map showing all streets impacted by the event. ZO YES NO Does the event involve the e of tents or canopie11 ? /�: S C e Number of tent/canopies :O Sizes (0 / NOTE: A separate Fire Department permit is required for tents or canopies. YES ZO NO Will the event involve the use of the City stage or PA system? in addition to the route map required above, please attach a diagram showing the overall layout and set-up locations for the following items: • Alcoholic and Nonalcoholic Concession and/or Beer Garden areas. Food Concession and/or Food Preparation areas nn Please describe how food will be served at the event: %- % I r-e (' Spats nit i I 6-e W etq-r,p t /0ves, /'If► -Ur NeTs, K t-s He»i r i t!'�i05 If you intend to cook food in the event area please specify the method: GAS )(I ELECTRIC )0 CHARCOAL OTHER (Specify): w Portable and/or Permanent Toilet Facilities Number of portable toilets: 3 (1 for every 250 people is required, unless the applicant can show that there are facilities in the immediate area available to the public during the event) Tables and Chairs Fencing, barriers and/or barricades • Generator locations and/or source of electricity >= Canopies or tent locations (include tent/canopy dimensions) r Booths, exhibits, displays or enclosures • Scaffolding, bleachers, platforms, stages, grandstands or related structures Y Vehicles and/or trailers - Other related event components not covered above • Trash containers and dumpsters (Note: You must properly dispose of waste and garbage throughout the term of your event and immediately upon conclusion of the event the area must be returned to a dean condition.) Number of trash cans: `3 0 Trash containers with lids: Describe your plan for clean-up and removal of waste and garbage during and after the event: srs /1 b/.v f ra A L G e tt t �onf p !rM/, % r S if F/ck -> T/-fr(4 TNe At), Please describe your plans to notify all residents, businesses and churches impacted by the ev�e�nn�//I t: / W, l l G/ ?'S, d EA/1 / W!/ 8/r3G/ K /9,0/ cI Prier iv EVeN T G exsT 2 wee%s ini 41wee NOTE: Neighborhood residents must be notified 72 hours in advance when events are scheduled in the City parks. 1 YES NO Are there any musical entertainment features related to your event? If YES, please state the number of stages, number of bands and type of music. Number of Stages: Number of Bands: 1 Type of Music: f t r t AAA t ru l It IG r ft it t k LRb aN zy YES NO Will sound amplification be used? If YES, please indicatef5LtManV Start time: Mtt /pm Finish Time % CVn PYES NO Will sound checks be conducted prior to the event? If YES, please indicate: Start time: r 'pm Finish Time iirm Please describe the sound equipment that will be used for your event: .1), J 1t , Pr eaeM l� YES NO Fireworks, rockets, or other pyrotechnics? If YES, please describe: YES _ NO Any signs, banners, decorations, special lighting? If YES, please describe: 4�Npr6 c2P CMure'W Proper-1-r 7 ANNouee 1-1,711-7-1 7 CGRIlb �CTW S 14- -r Revised 08/10/05 efr kT c&TN V) TrssW CA -Ns Qf_ .off 1NON� sf//voU/J I' M r — _] J Z > .�....��.. \ 1._ �. d s k (� -F` 5eNT, n y Fnti Sp ST*Trs-s o-z No aV/ City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE May 18, 2010 AGENDA ITEM NO. 25 (ITEM TITLE TEMPORARY USE PERMIT — National City Parade of Flags sponsored by the Rotary Club of National City flag placement to display American flags along the Mile of Cars between 18th Street and W. 33`d Street during set holidays between May 315t and November 11, 2010. The applicant is requesting a waiver of fees. PREPARED BY Vianey Rolon, 336-4364 DEPARTMENT Neighborhood Services Division EXPLANATION This is a request from Rotary Club of National City to display (44) forty-four American flags on 8-foot poles each along the Mile of Cars, between 18th and W. 33`d Street. These flags will be displayed during major holidays from May 31st through November 11th, 2010 which include Memorial Day, Independence Day, Flag Day, Labor Day and Veterans Day. Assembly will take place two days prior to each holiday and dismantling will be two days after the holiday. The Boy Scouts will aide with the assembly and dismantling process. Environmental Review X N/A Financial Statement The City has incurred $237.00 for processing the TUP through various City departments Total fees are $237.00 Approved By: Finance Director Account No. STAFF RECOMMENDATION %L g- a-aald Approve the Application for a Temporary Use Permit subject to compliance with all condititfns of approval BOARD / COMMISSION RECOMMENDATION N/A ' ATTACHMENTS ( Listed Below) Resolution No. Application for a Temporary Use Permit with recommended approvals and conditions of approval. A-200 (9/99) Type of Event: _ Public Concert _ Fair _ Festival _ Community Event _ Parade Demonstration _ Circus _ Block Party _ Motion Picture _ Grand Opening V Other Event Title: P n. Ipn1 A L Q1C 1 1� (� 1�i� F')— AGS Event Location: I V( T s o ih L Q 1T ' ILV i L Event Date(s): From Vl4 '3t1(go 144,11,10 Total Anticipated Attendance: 119 Month/Day/year Actual Event Hours: M 14 am/pm to N iA am/pm Setup/assembly/construction Date: MrdYlob Start time: NIA ( Participants) ( Spectators) Please describe the scope of your- setup/assembly work (specific details): AME12,1c N F t GS To QE losTiiA 2 t-Ni68 RIoR 2 �tis Ts;� Jr' i ol�ll>9Y5 N et t%ogtA� Dz► , rt.AG t t 7ut+?44h) Lttenk Vfrre,P.NS oa Dismantle Date: .'� f H S' fCompletion Time: � � am/pm List any street(s) requiring closure as a result of this event. Include street name(s), day and time of closing and day and time of reopening. Sponsoring Organization: R DTgL? CUR. OF ►' A`ri N4 L Cr r F For Profit Chief Officer of Organization (Name `/ Not -for -Profit Applicant (Name): Bi Lt— �o_c� LET Address: 2 t- \ j E-5T4 (A3 Ff' N { } TI o n9 K11... Qt 7' Daytime Phone: ('I') 3X— i, Evening Phone: (er) Mq Contact Person "on site" day of the event: 3it.L two ; L E Pager/Cellular: t j 9— .S / 7 — +0? NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT AND IMMEDIATELY AVAILABLE TO CITY OF Fax: (;/7) 936-Z¢67 Is your organization a "Tax Exempt, nonprofit" organization? YES _ NO Are admission, entry, vendor or participant fees required? YES NO If YES, please explain the purpose and provide amount(s): $ 2% Estimated Gross Receipts including ticket, product and sponsorship sales from this event. $ 1 K Estimated Expenses for this event. $ K. What is the projected amount of revenue that the Nonprofit Organization will receive as a result of this event? Please provide a DETAILED DESCRIPTION of your event. Include details regarding any components of your event such as the use of vehicles, animals, rides or any other pertinent information about the event. THg- Rol vl iv^�Ttm4At, C.1C"° \r•VS �vf•et� �� 44. j-4M u_+RIGf1-01.S r,M t3LE Tb p, - o o `"c19 y<:>= S 6► .9 �j` ' , MALE ®c QARS IAEbt4-N cgatit w: P ro \ a TEJc; Mit N AV '\';ck-uP NucK. (3,r\\. Aid Ea_o12T ` Q0cK -cur AF&aTy W tLL'EN-ko t1 c xA. i Aht-RLC A) FLAGS 2 days 'P .lb 2 AuA z Dribs AFrEP,. s MASoQ. t,� t Df4�'� i'N1� L wnL� joke W-AC ���ty rn��riiitn1;n IS=edes -}� (1%4(Id YES <NO If the event involves the sale of cars, will the cars come exclusively from National City car dealers? If NO, list any additional dealers involved in the sale: YES :X NO Does the event involve the sale or use of alcoholic beverages? YES )(NO Will items or services be sold at the event? If yes, please describe: YES x NO Does the event involve a moving route of any kind along streets, sidewalks or highways? If YES, attach a detailed map of your proposed route indicate the direction of travel, and provide a written narrative to explain your route. _ YES ;�NO Does the event involve a fixed venue site? If YES, attach a detailed site map showing all streets impacted by the event. _ YES XNO Does the event involve the use of tents or canopies? If YES: Number of tent/canopies Sizes NOTE: A separate Fire Department permit is required for tents or canopies. YES X NO Will the event involve the use of the City stage or PA system? In addition to the route map required above, please attach a diagram showing the overall layout and set-up locations for the following items: • Alcoholic and Nonalcoholic Concession and/or Beer Garden areas. ➢ Food Concession and/or Food Preparation areas Please describe how food will be served at the event: If you intend to cook food in the event area please specify the method: GAS ELECTRIC CHARCOAL OTHER (Specify): > Portable and/or Permanent Toilet Facilities Number of portable toilets: (1 for every 250 people is required, unless the applicant can show that there are facilities in the immediate area available to the public during the event) > Tables and Chairs • Fencing, barriers and/or barricades > Generator locations and/or source of electricity > Canopies or tent locations (include tent/canopy dimensions) ➢ Booths, exhibits, displays or enclosures > Scaffolding, bleachers, platforms, stages, grandstands or related structures > Vehicles and/or trailers ➢ Other related event components not covered above > Trash containers and dumpsters (Note: You must properly dispose of waste and garbage throughout the term of your event and immediately upon conclusion of the event the area must be returned to a clean condition.) Number of trash cans: Trash containers with lids: Describe your plan for clean-up and removal of waste and garbage during and after the event: Please describe your procedures for both Crowd Control and Internal Security: YES X NO Have you hired any Professional Security organization to handle security arrangements for this event? If YES, please list: Security Organization: Security Organization Address: Security Director (Name): Phone: — YES X NO Is this a night event? If YES, please state how the event and surrounding area will be illuminated to ensure safety of the participants and spectators: Please indicate what arrangement you have made for providing First Aid Staffing and Equipment. Please describe your Accessibility Plan for access at your event by individuals with disabilities: m(A Please provide a detailed description of your PARKING plan: NA Please describe your plan for DISABLED PARKING: NIA 4 Please describe your plans to notify all residents, businesses and churches impacted by the event: NOTE: Neighborhood residents must be notified 72 hours in advance when events are scheduled in the City parks. YES )(NO Are there any musical entertainment features related to your event? If YES, please state the number of stages, number of bands and type of music. Number of Stages: Number of Bands: Type of Music: YES ,KNO Will sound amplification be used? If YES, please indicate: am/pm Start time: am/pm Finish Time YES L NO WiH sound checks be conducted prior to the event? If YES, please indicate: Start time: am/'pm Finish Time am/pm Please describe the sound equipment that will be used for your event: YES \ NO Fireworks, rockets, or other pyrotechnics? If YES, please describe: YES NO Any signs, banners, decorations, special lighting? If YES, please describe: AmeR tC.A1 ` LAG Revised 08/10/05 5 For Office 'Use Only Event: Department Date Approved? Yes No Initial Specific Conditions of Approval Council Meeting Date: Approved: Yes No Vote: Kathleen Trees, Director Building & Safety Department 6 City of National City PUBLIC PROPERTY USE HOLD HARMLESS AND INDEMNIFICATION AGREEMENT Persons requesting use of City property, facilities or personnel are required to provide a minimum of $1,000,000 combined single limit insurance for bodily injury and property damage which includes the City, its officials, agents and employees named as additional insured and to sign the Hold Harmless Agreement. Certificate of insurance must be attached to this permit. Organization N A j t au fa-L Crry €nov.4 r y Person in Charge of Activity 1sr.t Cy® J /,* Address 2 1 - t 1,s%.-k-a Li i_Y (�►,�' , 1.1 Telephone tall- 3 3 6- t 9 Date(s) of Use HOLD HARMLESS AGREEMENT As a condition of the issuance of a temporary use permit to conduct its activities on public or private property, the undersigned hereby agree(s) to defend, indemnify and hold harmless the City of National City and the Parking Authority and its officers, employees and agents from and against any and all claims, demands, costs, losses, liability or, for any personal injury, death or property damage, or both, or any litigation and other liability, including attorneys fees and the costs of litigation, arising out of or related to the use of public property or the activity taken under the permit by the permittee or its agents, employees or contractors. Signature of Applicantft d4RI ✓ ` Official Title `gY 2l �/� CeS t Y For Office Use Only 0 5-- J D — /a Date Certificate of Insurance Approved Date Non-profit organizations, which meet the criteria on page v of the instructions, will be considered for a waiver. If you would like to request a waiver of the processing fees, please complete the questionnaire below. 1. Is the event for which the TUP is sought sponsored by a non-profit organization? '/ Yes (proceed to Question 2) No (Please sign the form and submit it with the TUP Application) 2. Please state the name and type of organization sponsoring the event for which the TUP is sought and then proceed to Question 3. Name of the sponsoring organization 01))/ Type of Organization (Service Club, Church, Social Service Agency, etc.) CLu 3. Will the event generate net income or proceeds t the sponsoring organization? Y. Yes (Please proceed to Question 4) No (Please sign the form and submit it with the TUP Application) 4. Will the proceeds provide a direct financial benefit to an individual who resides in or is employed in the city, and who is in dire financial need due to health reasons or a death in the family? Yes (Please provide an explanation and details. No (Please proceed to Question 5) 8 5. Will the proceeds provide a direct financial benefit to city government such as the generation of sales tax? Yes (Please provide an explanation and details. No (Please proceed to Question 6) 6. Will the proceeds provide a direct financial benefit to a service club, social services agency, or other secular non-profit organization located within the city such as Kiwanis, Rotary, Lions, Boys and Girls Club? Yes (Please provide an explanation and details. 1 r t.c�C-5 k\,c, em U 4 S' S'+ P1 C. Q No (Please proceed to Question 7) 7. Will the proceeds provide a direct financial benefit to an organization, which has been the direct recipient of Community Development Block Grant (CDBG) funding? Yes Year funds were received: Funds were used to: No (P lease sign the form and submit it with the TUP Application) Date 9 ACORD,, CERTIFICATE OF LIABILITY INSURANCE °"TE(II'm°'YYTY) PRODUCER LOCICTON COMPANIES,ILC-K cmc oo 525 W. Monroe, Suite 600 CHICAGO 0,60661 (3I2) 669-6900 + INFORMATION THIS CERTIFICATE IS ISSUED AS A MATTER OF ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, ALTER THE COVERAGE AFFORDED BY THE POLICES EXTEND OR BELOW. INSURERS AFFORDING COVERAGE NAIC # UISDRw Al) Active US Rotary Clubs & Murices Alin: Risk Management Department 1560 Sherman Ave. Evanston IL 60201-3698 I MIA, 14'.rd IFISORER A; ACE American Insurance OompanY 22667 BeBURE R B ACE Property & Casualty Insurance Co 20699 INSURER Q INSURER 6 INSURER E •r..ewweiwa..w ineuernausootaiarcowman:a conraacrset mt ua aWU INSILAIRXDIREDaCPIIBIENfMMfOnPW suDERAanTIEDISMASNENDLOB. THE POACHES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CON DMON OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE RUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY TIE POUCHES DESCRIBSD HEREIN 18 SUBJECT TOALL THE TERMS, EXCWSDNS AND Coi o1TK)Ns OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCE BY PAD PANS - NOR LIR TYPE OF INSURANCE POLICY NURSER UNITS A A B BONERµ LlABILN(Y X COMMERCIAL GENERAL LAVED,/ CLAWS MADEO OCCUR X Liquor Liability Included GDR AGGREGATE UMITAPPLEM PER: 71 POLICY rim rk. AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS X HIRED AUTOS X N oer.ow ED AUTOS PMX123861355 PMIG23661355 7/1/2009 7/1/200➢ 7/1/2010 7/1/2010 zr,ogO RENTEO PREMISESREa amemml MILD DO. (MY one Pam) PER$ONAML&ADV INJURY GENERAL AGGREGATE PRODUCTS- COMPYOPAGO f 2.000.000 s 500.000 f XXXXX X a 2,000,000 s 4,000,000 s 4.000,000 MOLE MOT BT (Ea aeddent $ 1,000,000 BODILY INJURY (Per person) 3 )DOOD= BODILY INJURY (Per aceldAng s )0000DOC PROPERTY DUNCE (Per seddenO a X)OOOOGC --G.--A��RAGE LUUN INY ANY AUTO ESINIEANMREIJ A UABNNY OCCUR Q PUPAS MADE MORELIA DEDUCTIBLE Omy RETENTION $ WORKERS COMPBNIATION ANO 9pLOYERS' LNBRLTTY ANY PROPRIETORIPARTNERSOZCUTIVE OFFICERYMEABER SPER7g1. PROVISIONS below OTHER NOT APPLICABLE M00534092 NOT APPLICABLE 7/1/2009 7/1/2010 ALITOOM.Y- EA ACCDENT f X OIyxOT OTHER THAN AUTO OM.N. EA ACC AGG EACH OCCURRENCE s x)OOOO X $ )0O000cx Sr 5.000.000 AGGREGATE f 5,000%000 f 3OODOO x E X)OOCXXX I T T JMIiS I IV E.L EACH ACCIDENT $ X)OOOOIX a XX)oMOC EL TASEASE - EA EMPLOYEE f XXXXXXX EL DISEASE - POLICY LIRBT f =DOO X DESCRIPTION OF OPERATIONS 1 LDCAYKRWIBETNCLES r EncLORONE ADDED BY gLORSE ENf Y SPEC A . PROVISIONS The Certificate Holder is included as Additional Insured where required by written contract or permit subject to the terms and conditions of the General Liability policy, but only to the extent bodily injury or property damage is caused in whole or in part by the acts or omissions of the insured. CERTIFICATE HOLDER CANCELLATION IDANA TANY OF TM ABOVE DISIGRZEDPOUCIES BE CANCELLED BEFORE THE ESPIIRATION DATE T®EOF, TE ISSUING INSURER W1.1. ENDEAVOR TO NAIL 30 DAYS PIFITTEN NOReMETOTHE CERTIM 7E HOLDER !LAMED TO THE LEFT BUT FAILURE TO DO SO SHALL INPOSE NO OBMARAIIDN OR UABE.ITY OF ANY KIND UPON THE Ate. REAGENTS OR TI@N1SSE1T1mFs ACORD25poi amm) For tilmobes •.gwnoads mesa/ow comet d..,me.DNA NoTne s esmoro sw.umsf mtAwl coda CORPORATION i958 "—ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT May 18, 2010 AGENDA ITEM NO. 26 ITEM TITLE: Authorize the reimbursement of Community Development Commission expenditures in the amount of $104,583.41 to the City of National City for the period of 04/14/10 through 04/20/10 PREPARED BY: D. Gallegos PHONE: 619-336-4331 DEPARTMENT: APPROVED BY: EXPLANATION: Effective July 1, 2008 the Community Development Commission's fiscal operations have been merged with the City of National City. In order to streamline the payment process, the City of National City pays for all expenditures for the CDC. Attached is a detailed listing of all CDC warrants paid for with the City General Funds. Staff requests approval of the reimbursement of CDC activity. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Approve the reimbursement of funds to the City of National City in the amount of $104,583.41 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept and File. BOARD / COMMISSION RECOMMENDATION: N/A —,ACHMENTS: ...grants for the period of 04/14/10 through 04/20/10 COMMUNITY DEVELOPMENT COMMISSION WARRANT REGISTER #42 4/20/2010 PAYEE EQUIFAX INFORMATION SVCS KTGY GROUP INC NATIONAL CONSTRUCTION RENTAL NBS NINYO & MOORE OPPER & VARCO STAPLES ADVANTAGE STRADLING YOCCA CARLSON & U S BANK CORPORATE PAYMT SYS DELTACARE (PMI) HOUSING AUTHORITY OF THE PAYROLL Pay period Start Date 08 3/23/2010 DESCRIPTION BACKGROUND/CREDIT CKS FOR S8 PLAZA/HIGHLAND FENCE RENTAL-1640 E PLAZA BLVD/PALM LANDSCAPE MAINTENANCE SERVICES MARINA GATEWAY PROJECT EDUCATION VILLAGE/GENERAL MOP 45704 OFFICE SUPPLIES-REDEV SUDBERRY/GATEWAY CREDIT CARD EXP DENTAL INS PMI APR 2010 REIMB-REYNA CURIEUOCT 2007 HAP End Date Check Date 4/5/2010 4/14/2010 CHK NO DATE AMOUNT 235822 4/20/10 50.11 235823 4/20/10 14,607.36 235824 4/20/10 919.70 235825 4/20/10 965.43 235826 4/20/10 2,280.25 235827 4/20/10 51.00 235828 4/20/10 25.53 235829 4/20/10 877.50 235830 4/20/10 15.68 235885 4/20/10 -3.84 235906 4/20/10 1,184.48 A/P Total $ 20,973.20 83,610.21 GRAND TOTAL $ 104,583.41 COMMUNITY DEVELOPMENT COMMISSION Warrant Register # 42 4/20/2010 502 SECTION 8 FUND 505 HOME FUND 511 TAX INCREMENT FUND 522 LOW/MODERATE HOUSING FUND 22,459.06 2,547.96 76,754.07 2,822.32 104,583.41 ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT May 18, 2010 AGENDA ITEM NO. 27 ITEM TITLE: Authorize the reimbursement of Community Development Commission expenditures in the amount of $30,189.06 to the City of National City for the period of 04/21/10 through 04/27/10 PREPARED BY: D. Gallegos PHONE: 619-336-4331 DEPARTMENT: APPROVED BY: EXPLANATION: Effective July 1, 2008 the Community Development Commission's fiscal operations have been merged with the City of National City. In order to streamline the payment process, the City of National City pays for all expenditures for the CDC. Attached is a detailed listing of all CDC warrants paid for with the City General Funds. Staff requests approval of the reimbursement of CDC activity. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Approve the reimbursement of funds to the City of National City in the amount of $30,189.06 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept and File. BOARD / COMMISSION RECOMMENDATION: N/A 'ACHMENTS: warrants for the period of 04/21/10 through 04/27/10 PAYEE CHRISTENSEN & SPATH LLP E2 MANAGE TECH INC GE CAPITAL GEOSYNTEC CONSULTANTS HOGLE IRELAND INC LOLA HAPPY BAKERY SWEETWATER AUTHORITY COUNTY OF SAN DIEGO SECTION 8 SECTION 8 HAPS PAYMENTS COMMUNITY DEVELOPMENT COMMISSION WARRANT REGISTER #43 4/27/2010 DESCRIPTION HARDING WESTSIDE NEIGHBORHOOD BROWNFIELD INSTALLMENT FOR COPIER RENTAL EDUCATION VILLAGE NC CONSOLIDATED PLAN/ACTION ECONOMIC DEVELOPMENT LOAN WATER UTILITES FOR CDC MAIL PROCESSING SVC 2/16 - 3/15/10 Start Date End Date 4/21/2010 4/27/2010 CHK NO DATE 235963 4/27/10 235964 4/27/10 235965 4/27/10 235966 4/27/10 235967 4/27/10 235968 4/27/10 235969 4/27/10 235992 4/27/10 AMOUNT 200.00 11,493.89 210.43 241.28 5,315.00 4,618.49 213.14 610.03 A/P Total $ 22,902.26 7,286.80 GRAND TOTAL $ 30,189.06 NNE :� ;NQ6RJ'OAATEZ? COMMUNITY DEVELOPMENT COMMISSION Warrant Register # 43 4/27/2010 502 SECTION 8 FUND 511 TAX INCREMENT FUND 522 LOW/MODERATE HOUSING FUND 7,896.83 16, 817.23 5,475.00 30,189.06 CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO. ?8 M TITLE: resolution appropriating $75,000 and approving an Environmental Oversight Agreement with the California Department of Toxic Substance Control to provide qualified oversight for environment remediation planning and implementation for the Westside Affordable Transit Oriented Development ("TOD") sit PREPARED BY: Patricia Beard P a/ DEPARTMENT: Re p ent Division PHONE: 42551 APPROVED BY: EXPLANATION: The properties, National City Public Works Yard and Sun Diego Charter site (2200 and 2020 Hoover Avenue) designated as the sites for a transit -oriented affordable housing project in the Westside Specific Plan, have been investigated using funds from the State of California and United States Environmental Protection Agency and it has been determined that these sites are contaminated by hazardous materials that must be remediated prior to any housing project being constructed. By federal law, a qualified state environmental oversight agency ('regulator") must be retained to oversee environmental remediation to ensure that human and biological health and safety are adequately protected during remediation and also that future residents of the project are ensured an environmentally safe place to live. Staff desires to engage the Department of Substances Control ("DTSC") to serve in this role. The DTSC has been a strong advocate for and partner in the project, having provided site investigations through state grants and also serving as investigation regulator through a Consultative Agreement currently in effect. The proposed DTSC Project Manager is extremely qualified to assist the CDC in assuring that remediation plans and implementation are completed to ensure the public health and safety and also to efficiently use resources. In order to meet the TOD schedule to apply for Low Income Housing Credits and use California -position 1 C grant funds for this project, this Agreement authorizes the Chairman to approve a detailed scope fork for the site remediation to be prepared at a future date following the completion of environmental studies anu an appropriate public information and comment process. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. 1522-409-500-598-3934.1 APPROVED: MIS DTSC estimates the total cost of all oversight for the project to be $75,000, of which a 50-percent deposit is required in advance. Should the cost exceed $75,000, an Amendment will be brought for CDC consideration.! ENVIRONMENTAL REVIEW: Not applicable. ORDINANCE: INTRODUCTION: 1 FINAL ADOPTION: 1 STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Proposed Agreement. RESOLUTION NO. 2010 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE APPROPRIATION OF FUNDS IN THE AMOUNT OF $75,000, AND AUTHORIZING THE CHAIRMAN TO EXECUTE AN ENVIRONMENTAL OVERSIGHT AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL TO PROVIDE QUALIFIED OVERSIGHT FOR ENVIRONMENT REMEDIATION PLANNING AND IMPLEMENTATION FOR THE WESTSIDE AFFORDABLE TRANSIT -ORIENTED DEVELOPMENT SITE WHEREAS, the Community Development Commission of the City of National City (CDC) is implementing the Redevelopment Plan for the National City Redevelopment Project, including the implementation of the Westside Specific Plan; and WHEREAS, in order to redevelop sites within the Westside Specific Plan for an affordable transit -oriented housing development, environmental remediation must take place; and WHEREAS, in order to plan and implement said environmental remediation, oversight must be provided by a qualified State Oversight Agency;. and WHEREAS, the CDC desires to retain the California Department of Toxic Substances Control ("DTSC") to provide said environmental oversight; and WHEREAS, the DTSC estimates the cost of said oversight to be $75,000 of which 50-percent ($37,500) is required as a refundable advance deposit; and WHEREAS, funding for the implementation of this Agreement is available in Tax Increment Funds of the CDC; and WHEREAS, the payment of an amount exceeding $75,000 for this purpose will require public consideration by the CDC. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the appropriation of Tax Increment Funds in the amount of $75,000 s for environmental remediation oversight for sites within the Westside Specific Plan. BE IT FURTHER RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an Environmental Oversight Agreement with the California Department of Toxic Substances Control to provide qualified oversight for environmental remediation planning and implementation for the Westside Affordable Transit -Oriented Development Site. Said Agreement is on file in the office of the City Clerk. -- Signature Page to Follow -- Resolution No. 2010 — Page 2 PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III City Attorney Environmental Oversight Agreement For the Community Development Commission of the City of National City Redevelopment Agency Contract No. 1. INTRODUCTION This Environmental Oversight Agreement (Oversight Agreement) is made between the Redevelopment Agency of the Community Development Commission of the City of National City, and the California Environmental Protection Agency, Department of Toxic Substances Control (DTSC). The Parties intend by this Oversight Agreement to establish a mutually beneficial working relationship and to cooperatively address Brownfields properties in National City. The Agency and DTSC both share the mission to revitalize and reuse Brownfields properties to address known or perceived environmental contamination and in order to provide significant benefits to the economy and health of surrounding communities. DTSC is committed to working in partnership with communities to restore contaminated properties to productive use, while ensuring that cleanups are protective of public health and the environment. The agency intends to alleviate the causes and effects of blight through the construction of infrastructure improvements, improvement or construction of public facilities and public uses, promoting improvements in commercial, industrial and residential areas, removing or alleviating the negative effects of hazardous substances and improving, increasing and preserving the community's housing stock. The Oversight Agreement outlines two different scopes of work and broad approaches for DTSC to provide technical consultation, site investigation and remediation activity support. The intent of the Oversight Agreement is to establish a collaborative process that (1) provides a flexible process based upon the Redevelopment Agency's needs for the project; (2) ensures the investigation and cleanup are conducted in an environmentally sound manner; (3) requires a cleanup that results in a property that is safe for redevelopment; and (4) can provide liability relief for redevelopment agencies that complete the site characterization and cleanup process. Under this Program, DTSC can also provide consultative services to an Agency. The Agency will select the specific Scope of Work that it believes addresses its particular needs depending on whether the Agency is seeking (1) technical consultation only from DTSC (Exhibit C), or (2) DTSC assistance and response and remediation oversight in cases where the Agency intends to proceed under the Polanco Act or other applicable laws as determined appropriate by DTSC (Exhibit D). Under this Oversight Agreement, the Agency may request (and pay for) services without any commitment to move forward with a project or a Property or group of Properties, and may request early consultation with DTSC, where desirable. 1.1. Purpose of Agreement: The purpose of this Oversight Agreement is to specify the process which will be used to evaluate Brownfields properties within the Agency's and DTSC's jurisdiction under this Oversight Agreement; to identify the properties that will be addressed under this Oversight Agreement; to facilitate the remediation of Brownsfields properties and to provide a framework for the reimbursement of DTSC's oversight costs, and to assist the Agency and others in meeting the environmental requirements to obtain the immunities and protections under the Polanco Redevelopment Act set forth in Health & Safety Code §§ 33459-33459.8 (Polanco Act), and such other California and federal statutes as may be appropriate. 1.2. Parties: DTSC and the Agency are collectively the "Parties" to this Oversight Agreement. 1.3 Jurisdiction. 1.3.1 Agency Jurisdiction. The agency has general delegated authority from the State Legislature to eliminate blight pursuant to the Health and Safety Code. In addition, Health and Safety Code section 33459.1, subdivision (a)(1) of the Polanco Act authorizes the Agency to take any actions that the Agency determines are necessary and that are consistent with state and federal laws to remedy or remove a release of hazardous substances, as defined in Health and Safety Code section 33459(c), on, under, or from a property located in a "Redevelopment Project Area," as defined in Health and Safety Code section 33320.1 (Project Area), whether the Agency owns the property or not, if any one of the conditions in the Health and Safety Code section 33459.1(b) is met. Pursuant to Health and Safety Code section 33459.1, subdivision (c), even if the conditions in Health and Safety Code section 33459.1 (b) are not met, the Agency may take actions to investigate or conduct feasibility studies or, if the Agency determines that the environmental condition of a property requires immediate action, the Agency may take actions to remedy or remove a release of hazardous substances. The Agency shall submit satisfactory evidence demonstrating its authority to enter into this agreement to contract with DTSC. Such evidence should include a resolution, motion or order confirming its authority. 1.3.2 DTSC Jurisdiction. Health and Safety Code section 25201.9 authorizes DTSC to enter into agreements to perform consultative services for the purposes of providing assistance in complying with chapter 6.8 of division 20 of the Health and Safety Code. Health and Safety Code sections 33459 - 33459.8 and 58009 authorize DTSC to take proper and necessary actions for the protection and preservation of the public health as required for the efficient exercise of DTSC's activities under the Polanco Act. 1.4 Properties. Generally, the property or group of properties that will be the subject of this Oversight Agreement are within Redevelopment Project Areas of concern to the Agency. A map of the Redevelopment Project Areas located within the Agency's jurisdiction is attached as Exhibit A. The specific properties included in this Oversight Agreement ("Property" or group of Properties) will be identified in Exhibit B, attached to this Oversight Agreement. The Agency may propose new Redevelopment Project Areas and future properties for incorporation into this Oversight Agreement. If approved by DTSC, new Redevelopment Project Areas will be incorporated into this Oversight Agreement and identified in Exhibit A and new Properties or groups of Properties will be incorporated into this Oversight Agreement and identified in Exhibit B. 2. AGREEMENT THE PARTIES HEREBY AGREE THAT, 2.0. Activities to be Conducted. DTSC and the Agency will undertake activities as specified in this Oversight Agreement to provide for Technical Consultation by DTSC related to site investigation, assessment, remediation and mitigation, or services related to activities to assess hazardous substances releases as may be necessary or helpful for redevelopment. For each particular Property or group of Properties, the parties acknowledge and agree that all work performed pursuant to this Oversight Agreement is intended to be consistent with Health and Safety Code sections 33459-33459.8, or Health and Safety Code sections 25300-25395.45, as appropriate. 2.0.1. Technical Consultation. Upon the request of the Agency's Oversight Agreement Manager identified under section 2.4 and subject to availability of DTSC resources, DTSC will provide technical consultation to the Agency in accordance with the Scope of Work contained in Exhibit C and Exhibit D, attached to this Oversight Agreement. Exhibit C-1 (Optional Table Listing Consultation Schedules and Cost Estimates) may also be attached to this Oversight Agreement. Technical consultation may include, but is not limited to, participating in meetings, conferences, workshops, and/or conference calls, researching responses to Agency's questions, reviewing existing data and preliminary reports submitted by Agency or in DTSC's files, conducting site visits and performing general activities to scope a project, including oversight of preliminary site characterization activities. Technical consultation does not include oversight of removal, remediation or other site cleanup activities. DTSC's completion of activities described in the Scope of Work for technical consultation shall constitute DTSC's complete performance for technical consultation under this Oversight Agreement. 2.0.2 Site -Specific Property Oversight. For each Property or group of Properties subject to this Oversight Agreement, DTSC will provide review and oversight of the activities conducted by the Agency, as appropriate, in accordance with the Scope of Work contained in Exhibit D attached to this Oversight Agreement that is developed by DTSC in consultation with the Agency pursuant to this Section 2.0.2. Tasks identified for which DTSC will provide oversight will not be implemented until DTSC provides an approval of that Scope of Work. The Scope of Work in Exhibit D applies to a Property or group of Properties being addressed under the Polanco Act or other state and federal laws as determined appropriate by DTSC. The Agency will conduct activities in the manner specified in this Oversight Agreement in accordance with the mutually agreed upon schedule. The Agency may direct or arrange for a third party to conduct those activities in the same manner and in accordance with the same schedule. DTSC will review and provide the Agency with written comments on all Agency deliverables as described in the Scope of Work. For each Property or group of Properties, DTSC will provide oversight, as appropriate, of field activities,' including but not limited to observation of sampling and implementation of Cleanup Plans. DTSC's completion of the activities described in the Scope of Work for each Property or group of Properties shall constitute DTSC's complete performance under this Oversight Agreement for that Property or group of Properties. 2.1. Inclusion of Properties. For each Property or group of Properties the Agency proposes for site - specific activities under this Oversight Agreement, the Agency will submit to DTSC (1) the information required under Exhibit B for that proposed Property or group of Properties; and (2) any other appropriated information. DTSC will discuss with the Agency any issues regarding incorporating a proposed Property or group of Properties into this Oversight Agreement. DTSC will provide written concurrence when it determines that incorporating a proposed Property or group of Properties into this Oversight Agreement is appropriate and will develop in consultation with the Agency a separate site -specific Scope of Work, site - specific cost estimate and schedule for the Property or group of Properties. Upon approval in writing by both the Oversight Agreement Manager for DTSC and the Agency, a revised Exhibit B, C or D and E for the Property or group of Properties will be incorporated into this Oversight Agreement 2.2. Amendment of Exhibits. Upon approval in writing by both the Oversight Agreement Manager for DTSC and the Agency, Exhibit A, B, C, C-1, D, E, F and G may be amended and the Exhibits, as amended, will be incorporated into this Oversight Agreement. 2.3 Additional Activities. Additional activities to the agreed upon Scope of Work may be conducted and DTSC oversight provided by amendment to an Exhibit in accordance with sections 2.2 and 2.8. If DTSC expects additional oversight costs to be incurred related to these additional activities, DTSC will provide an estimate of the additional oversight cost to the Agency as an amendment to Exhibit C-1 (as applicable) D, and/or E, as applicable, as provided in section 2.7. 2.4 Oversight Agreement Managers and Project Managers.Maryam Tasnif-Abassi is designated by DTSC as its Manager for this Oversight Agreement. Patricia Beard is designated by the Agency as Manager for this Oversight Agreement. Each Party to this Oversight Agreement will provide at least ten (10) days advance written notice to the other of any change in its designated Oversight Agreement Manager. DTSC and the Agency may designate a Project Manager for any Property or group of Properties incorporated into this Oversight Agreement. Both DTSC and the Agency reserve the right to appoint different Project Managers, pursuant to this Oversight Agreement, for different projects that may be ongoing at the same time. 2.5 Notices and Submittals. 2.5.1. All notices, documents and communications that are to be given under this Oversight Agreement, unless otherwise specified, will be sent to the respective Parties at the following addresses: To DTSC: Regional Branch Chief ATTN: Maryam Tasnif-Abassi, Project Manager Department of Toxic Substances Control 5796 Corporate Avenue Cypress CA 90630 To the Agency: Patricia Beard, Redevelopment Manager Community Development Commission/Redevelopment Agency 1243 National City Boulevard National City CA 91950 619-336-4250 pbeard @ nationalcityca.gov fax — 619-335-4286 2.5.2. The parties will give such notices to known property owners and other parties as required by applicable law. (See Exhibit B for known property owners for each Property or group of Properties.) 2.6 DTSC Document Review and Approval. If DTSC determines that any report, plan, schedule or other document submitted for approval pursuant to this Oversight Agreement does not meet the conditions in this Oversight Agreement or fails to protect public health or safety or the environment, DTSC will consult with the Agency and either (1) return comments to the Agency with recommended changes or (2) modify the document, with Agency concurrence, as deemed necessary and approve the document as modified. 2.7 Payment. An estimate of DTSC's oversight costs for Technical Consultation is contained in Exhibit C-1 (as applicable) and an estimate of DTSC's oversight costs for each Property or group of Properties with respect to the Scope of Work described in Exhibit D is contained in Exhibit E. All Parties understand that a Cost Estimate will be prepared for each Property or group of Properties and incorporated into this Oversight Agreement per Section 2.1. Such cost estimates shall include all labor, materials and expenses incurred by DTSC in performing the services contemplated by this Oversight Agreement and specified in the Scope of Work for such Property or group of Properties. The Parties understand that the Cost Estimates set forth in Exhibits C-2 and E are estimates and cannot be relied upon as the final cost figure. The Agency agrees to pay (1) all costs incurred by DTSC in association with preparation of this Oversight Agreement; and (2) all costs incurred by DTSC in implementing and providing oversight or conducting other activities pursuant to this Oversight Agreement. Costs incurred include interest on unpaid amounts that are billed and outstanding more than 60 days from the date of DTSC's quarterly invoice. DTSC will notify the Agency in writing when it approaches charges of sixty-five percent (65%) of the total Cost Estimate prepared for a Property or group of Properties. The parties agree to evaluate the budget to determine if either a revised estimate or scope of work is needed at the time of the written notice or whether the Agency wishes to terminate as provided in Section 24 of the Standard Provisions. If DTSC or the Agency anticipates a change in the Scope of Work or the need for revision of the Cost Estimate, DTSC will provide a revised estimate in advance of exceeding the total cost estimate. 2.7.1 In anticipation of the services to be rendered under this Oversight Agreement, the Agency will make an advance payment of $37,500 to DTSC no later than thirty (30) days after the effective date of this Oversight Agreement. If the Agency's advance payment does not cover all costs payable to DTSC under this subsection, DTSC will invoice the Agency quarterly. The Agency agrees to pay the additional costs within sixty (60) days of receipt of DTSC's quarterly invoice. 2.7.2. All payments made by the Agency for activities performed for a Property or group of Properties pursuant to this Oversight Agreement will be by check made payable to the "Department of Toxic Substances Control", and bearing on its face the project code for the Property or group of Properties (See Exhibit B) and the Contract Number of this Oversight Agreement. All payments made by the Agency for DTSC activities performed pursuant to this Oversight Agreement, but not applicable to a Property or group of Properties will be by check made payable to the "Department of Toxic Substances Control" and bearing on its face the project code for this Oversight Agreement [CalStars Code for this Oversight Agreement) and the Contract Number of this Oversight Agreement. Payments should be sent to: Department of Toxic Substances Control Accounting/Cashier 1001 1 Street, 2151 Floor P.O. Box 806 Sacramento, California 95812-0806 2.8 Exhibits. Standard provisions of this Oversight Agreement are contained in Exhibit F (Oversight Agreement Standard Provisions), which is attached to this Oversight Agreement. All exhibits attached to this Oversight Agreement, including Exhibit F, are incorporated into this Oversight Agreement by reference. 2.9 Effective Date. The effective date of this Oversight Agreement is the date when this Oversight Agreement is fully executed. 2.10 Representative Authority. Each undersigned representative of the Parties to this Oversight Agreement certifies that she or he is fully authorized to enter into the terms and conditions of this Oversight Agreement and to execute and legally bind the Parties to this Oversight Agreement. 2.11 Counterparts. This Oversight Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, but such counterparts shall together constitute one and the same document. Date: [Name, Title] Division Program Department of Toxic Substances Control Date: Ron Morrison, Chairman Community Development Commission Of the City of National City Redevelopment Agency EXHIBITS A MAP OF CITY THAT IDENTIFIES REDEVELOPMENT PROJECT AREA WITHIN AGENCY'S JURISDICTION B PROPERTY DESCRIPTION FOR EACH INCLUDED PROPERTY AND LOCATION MAP SHOWING EACH INCLUDED PROPERTY WITHIN A REDEVELOPMENT PROJECT AREA. C TECHNICAL CONSULTAION SCOPE OF WORK -INCLUDING CONSULTATION Cl OPTIONAL TABLE LISTING CONSULTATION SCHEDULES D SITE SPECIFIC SCOPE OF WORK FOR REMEDIATION E SCHEDULE AND COST ESTIMATES FOR EACH INCLUDED PROPERTY OR GROUP OF PROPERTIES FOR REMEDIATION OVERSIGHT SCOPE OF WORK F OVERSIGHT AGREEMENT STANDARD PROVISIONS G SAMPLE RESOLUTION AUTHORIZING AGENCY TO CONTRACT WITH DTSC EXHIBIT "A" • VIN111! illl1•' t7t1219111ffi.11t its117 i11�116 ,I4t 11 it1 �1116��Q4 * fifil 1611it11 �I ��gci, "'lilt I n s-tf6i[tt114�it1� Ili11 Ci11111SIHS11111,INni 4f1��{Iia1+4116m � . 1131AR3�tblil .�ptf �1!1i3;4b11-IA261111H e�.A H4l i§ S H i 11 i 11 ts' ^IIINllll lllc -iftluqutlle 0e11 iseii iiil iIl 1112 111 II�1H6i ?i19'1 I. gill 6C p., I el.--s�mxm c..71.1 ism at.wII....is ti t 1 :llllibt ��� :l1u* I _ I ®jam BIII .1 it it a11CI flirt e. a kilt{t6111111P 1 lili sieitlf4llli 1411317. MINIS lational .City Redevelopment Project - ' s, Saws aaaFsas� f1: M®tota Rea tom iimin is Y Riu — tom. ®O to en =IN ®' Ias.sa an Saa m ma a& sava @Ha n Ste@la 011 fltiin .161#ilV 1,111119!ill :,N1ilr 11il16l 1 -I lit II{3t1114f1# s i114!Ito latI INN )d1,aN CIiULA VISTA b ail4llltti '^l66tll iif IIi tit t1t .111 ME II!! 4+r EXHIBIT B PROPERTY DESCRIPTION FOR EACH INCLUDED PROPERTY To be Formatted As A..ro riate Property Name, Location Site Description National City Public Works Yard 2200 Hoover Avenue APN(s): 559-124-05, 560-396- 06, 560-391-08, 560-206-03, 559-104-10, 559-125-15, Coolidge Avenue street closure, Harding Avenue street closure Project Code: Property Owners and addresses: City of National City 1243 National City Blvd National City CA 91950 Site History These properties consist of site currently vacant and used for the industrial and civic institutional purposes of the National City Public Works facility. Phase I and II investigations of these sites have determined that soils contamination including metals, benzene and hydraulic fluid exist that must be addressed by environmental remediation and oversight. Isles Family Trust Site 2020 Hoover Avenue APN(s): 560-206-05, 560-391- 10 Project Code: Property Owners: Illes Family Trust (City working to acquire) These properties consist of site currently vacant and used for the industrial and civic institutional purposes of the National City Public Works facility. Phase I and II investigations of these sites have determined that soils contamination including metals, benzene and hydraulic fluid exist that must be addressed by environmental remediation and oversight. This site houses a Charter Bus operation that will be completely demolished for redevelopment. Historically, releases of hazardous substances has occurred on this site. Investigations are now being conducted to determine whether and to what extent hazardous conditions exist that may lead to a necessity for site remediation. Note: Prepared 4-27-10 EXHIBIT C TECHNICAL CONSULTATION SCOPE OF WORK Not applicable. Exhibit C-1 SPECIFIC PROJECTS Note: A detailed scope and schedule for this project will be prepared prior to commencing work under this Agreement. This Agreement authorizes the Chairman to approve said scope. EXHIBIT D REMEDIATION OVERSIGHT SCOPE OF WORK for 2200 Hoover Avenue 2020 Hoover Avenue National City CA 91950 [NOTE: This Scope of Work should be used for a Property or group of Properties that are investigated or remediated under the Po/anco Act or other applicable authority as determined appropriate by DTSC. Each Property or group of Properties to be included under this Exhibit should be contained in a separate subsection with the site -specific scope of work, schedule, cost estimate, and site map.] (As part of this Oversight Agreement, any of the following tasks can be selected by the Agency and DTSC to be completed for each Property or group of Properties. The Tasks outlined below are not intended to be a "cookbook" of mandatory ingredients applicable to every case. Each Task will be carefully reviewed by the Agency and DTSC as to each Property or group of Properties to determine the appropriate level of action and the applicability of the individual task before the task is included in the Scope of Work. Individual tasks may be selected and will be adapted for each project, based upon DTSC's and the Agency's concerns, environmental conditions, existing and contemplated uses, community concerns, and public policy and environmental justice issues associated with the Property or group of Properties to remediate the site in an expeditious and cost-effective manner. For each Property or group of Properties, include only those tasks or portions of the tasks that are appropriate and applicable. The individual tasks may be modified, if necessary, to meet the specific conditions encountered at each Property or group of Properties. Depending on the characteristics and complexity of a Property or group of Properties, some or all tasks may be combined. In some cases, certain tasks may be unnecessary. For example, the Site Characterization Report (Task 3), the Risk Evaluation and Cleanup Level Determination (Task 4), the Feasibility Study (Task 5), the Remedy Selection Document (Task 6), and the Remedial Design and implementation Plan (Task 8) might be combined into a single Remedy Selection Document, Remedial Action Plan or Cleanup Plan if the contamination at a Property is not particularly complex or the remedial action is relatively routine. In other cases, a "presumptive remedy" may be appropriate, such that certain tasks may not be necessary or may be substantially modified. Furthermore, if the Agency decides to proceed with a simple removal action, that is, to remove 'hot spots', a number of Tasks may not be necessary at all, or necessary as separate documents. Accordingly, the final form of Exhibit D attached to any agreement may be substantially modified both prior to the execution of the Agreement as well as during the implementation of the tasks initially agreed to by the Agency and DTSC, based upon the information gathered by the parties during that process.] The following tasks will be completed as part of this Oversight Agreement: TASK 1. Technical Consultation and Assistance. DTSC will provide technical consultation and assistance to the Agency for the Property or group of Properties in accordance with a mutually agreed upon schedule and subject to availability of DTSC resources. Technical consultation and assistance may include, but is not limited to, participating in meetings, conferences, workshops, and/or conference calls, researching responses to Agency's questions, reviewing existing data and preliminary reports submitted by Agency, conducting site visits and performing general technical consultation and assistance. Technical consultation and assistance do not include oversight of removal, remediation or other site cleanup activities. TASK 2. Review of Existing Data and Scopinq Meeting. The Agency will submit to DTSC a listing of all known reports in its possession, including sample analysis results, environmental assessment reports, and any other information in its possession pertinent to the hazardous substance and hazardous waste management and/or release, characterization and cleanup of a Property or group of Properties. The Agency will provide copies of any of non -privileged reports or information requested by DTSC and will identify privileged or other confidential documents that the Agency is not providing. The Agency will also inform DTSC of any other known reports and documents, not in its possession, pertinent to the hazardous substance and hazardous waste management and/or release, characterization and cleanup of a Property or group of Properties, including the name of the document (if known) and the identity and address of the person/entity with possession of the document if known. Subject to the availability of DTSC resources, DTSC will review the information in accordance with a mutually agreed upon timeframe included in Exhibit E, to identify areas and media of concern, and determine whether additional work, if any, would be required to complete the investigation and/or cleanup of the Property or group of Properties. DTSC will respond to the Agency in writing, setting for the DTSC;s initial conclusions regarding these matters. Following DTSC's initial review, a scoping meeting will be held to discuss whether further site characterization is necessary, and, if so, how the characterization will be conducted for the Property or group of Properties, and which of the Tasks are appropriate and how they will be implemented. The critical goal of the scoping meeting is to agree on the focus of the site investigation and remedial or response actions and to agree on the applicability and scope of the remaining Tasks. The parties contemplate a flexible process and the level of detail and requirements and the applicability of each Task will be jointly evaluated by the parties' Project Managers. TASK 3. Site Characterization. The objective of this task is to characterize the extent of hazardous substance and hazardous waste contamination at the Property or group of Properties. This task may be conducted in sequential phases, such as a separate soil or groundwater investigation. (a) Sampling and Analysis Workplan. The Agency may submit a workplan that describes the activities proposed to characterize soil, groundwater, surface water, and/or air contamination associated with the Property or group of Properties. The Agency will exercise its best efforts to provide access for DTSC and its representatives to the Property or group of Properties prior to approval of the workplan, if necessary. For any sampling activities to be conducted, the workplan should also include a quality assurance/quality control plan (QA/QP), sampling plan, and implementation schedule. DTSC will review the Sampling and Analysis Workplan and QA/QP and will advise the Agency in writing within the period specified in Exhibit E of either DTSC's approval of such plans or DTSC's requirements for approval of the plans. In the event the Agency agrees to proceed with an approved Sampling and Analysis Workplan for a Property or group of Properties, the Agency will implement the approved workplan in accordance with the approved implementation schedule. DTSC may provide oversight implementation. All field work must be conducted in accordance with applicable Cal -OSHA regulations set forth in California Code of Regulations, Title 8, including but not limited to section 5192 and applicable DTSC guidance. The Sampling and Analysis Workplan and QA/QP may, in appropriate circumstances, be combined with other documents prepared by or on behalf of the Agency as approved by DTSC. (b) Site Characterization Report. The Agency may submit a Site Characterization Report that, at a minimum, presents the data, summarizes the findings of the investigation, validates data and includes recommendations and conclusions. DTSC will review the Site Characterization Report and will advise the Agency in writing, within the period specified in Exhibit E, of either DTSC's approval of such report, or DTSC's requirements for approval. The Site Characterization Report may, in appropriate circumstances, be combined with the Remedy Selection Document or Remedial Action Plan referred to in Task 6 or included with other documents prepared by or on behalf of the Agency. Task 4. Risk Evaluation and Cleanup Level Determination. If the Agency decides to proceed with a remedy or removal action, a scoping meeting may be held to discuss how the risk evaluation and cleanup level determination will be conducted for the Property or group of Properties. If appropriate, the Agency may conduct a risk evaluation consistent with U. S. EPA Risk Assessment Guidance for Superfund (EPA/540/1-89/002) and DTSC's Supplemental Guidance for Human Health Multimedia Risk Assessments of Hazardous Waste Sites and Permitted Facilities. This evaluation should identify the chemicals of concern and potential routes of exposure; characterize the potential risk; evaluate potential risks to environmental receptors; consider existing and contemplated uses of the Property or group of Properties; and identify site cleanup goals. If DTSC agrees, this information may be submitted in the Remedy Selection Document or Remedial Action Plan or another document combining one or more tasks contained in this agreement. The parties recognize that, depending on the site characterization and the proposed remedy or removal action, a site specific risk evaluation may not always be necessary. However, the following information must be included in the remedy selection document: identification of chemicals of concern, remedial action objectives and cleanup goals and discussion of the derivation of the cleanup goals as appropriate. Task 5. Feasibility Study. The objective of this task is to evaluate feasible remediation and response alternatives. If the Agency decides to proceed with the remedy or removal action, reasonable potential alternatives for the remediation of a Property or group of Properties and response to the presence of hazardous substances should be evaluated, including the "no action" alternative. Such an evaluation may be incorporated in the Remedy Selection Document, or may, if the analysis is complex, be addressed in a separate study or report. The evaluation should (a) identify the goals for the cleanup based upon current and projected future land uses; (b) evaluate feasible alternatives to meet these goals; and (c) recommend a preferred alternative. The feasibility study may be included in or combined with the Remedy Selection Document or the "Remedial Action Plan" or the "Cleanup Plan" or other document, as approved by DTSC. TASK 6. Remedy Selection Document. The purpose of the remedy selection document is to summarize results of the site characterization, risk evaluation and feasibility study and to describe the remedial action or removal plan. The remedy selection may be entitled "Remedy Selection Document", "Remedial Action Plan" (RAP), or "Cleanup Plan" and may include other tasks described herein. The document shall address the following: (a) a description of the site, site history, site environmental setting, and contamination; (b) a summary of the risk evaluation, if necessary; (c) current and contemplated land uses of the Property or group of Properties (d) zoning and general plan designation of the Property or group of Properties (e) the goals to be achieved by the cleanup; (() a summary description of the feasibility study conducted; (g) a description of the recommended alternative (including any required and/or suggested land use covenants, an operation and maintenance agreement and plan, financial assurance and other operation and maintenance requirements, as appropriate); (h) implementation and enforcement plan if operation and maintenance requirements are identified or if a land use covenant is necessary; (i) the name of the party, if not the Agency, who will be responsible for implementing and operating the final remedy, including any remedy requiring a startup operation period; and (j) an administrative record list. Within sixty (60) days of DTSC's written approval of the final RAP, or Cleanup Plan, DTSC will acknowledge, in writing, that upon proper completion of the RAP or Cleanup Plan, the immunity provided by Health and Safety Code section 33459.3(b) shall apply to the Agency. TASK 7. California Environmental Quality Act (CEQA). DTSC and the Agency will discuss what CEQA documents are necessary and who shall prepare the necessary CEQA documents, as well as the appropriate Lead Agency and Responsible Agency under the CEQA process. DTSC and the Agency will work together to ensure that the proposed environmental document contains the information necessary for the Agency and DTSC to evaluate impacts from the proposed remediation. It is the goal of both DTSC and the Agency that the CEQA document be used by both entities in meeting their respective obligations under CEQA. If, however, for reasons specific to the project, the processes cannot be efficiently combined, then DTSC will prepare its own CEQA document for the RAP or Cleanup Plan. If required, the Agency shall submit the information necessary for DTSC to prepare this document. TASK 8. Remedial Design and Implementation Plan. If the Agency decides to proceed with the remedial or removal actions specified in the RAP or Cleanup Plan with respect to a Property or group of Properties, the Agency will either (1) prepare and submit a Remedial Design and Implementation Plan (RDIP) in accordance with the agreed upon schedule contained in the approved RAP or Cleanup Plan; or (2) depending on the complexity of the environmental condition of the property or group of Properties, incorporate the factors typically addressed in a RDIP into the RAP or Cleanup Plan. The RDIP (or RAP or Cleanup Plan, as applicable) should address the following: (a) technical and operational plans and engineering designs for implementation of the approved alternative(s); (b) a proposed schedule for implementing the construction phase; (c) a general description of the construction equipment to be employed; (d) a community environmental monitoring plan (if necessary); (e) a site specific hazardous waste transportation plan (if necessary); (f) the identity of any contractors, transporters and other persons conducting the cleanup activities for the Property or group of Properties, when known; (g) post -remedial sampling and monitoring procedures for air, soil, surface water and groundwater; as necessary; (h) quality assurance/quality control plan; and (i) operation and maintenance procedures and schedules, as necessary. All field work must be conducted in accordance with Califomia Code of Regulations, title 8, including but not limited to section 5192 and applicable DTSC guidance. TASK 9. Implementation of Final RAP. Subject to the provisions of Section 5 of the Standard Provisions concerning endangerment during implementation, nothing herein will require the Agency to proceed with implementation of a RAP or Cleanup Plan with respect to any Property or group of Properties if it determines not to do so. The Agency will provide DTSC with written notice of the Agency's decision to either implement or not implement the Final RAP or Cleanup Plan. Upon DTSC approval of the RDIP (or RAP or Cleanup Plan, if the RAP or Cleanup Plan incorporates the RDIP) and schedule, and if the Agency decides to proceed with the remedy or removal action at a Property or group of Properties, the Agency will implement or will direct the implementation of the approved final RAP, Cleanup Plan, or RDIP, as applicable, in accordance with the approved schedule. At the completion of field work, the Agency (or such other party conducting the remediation or other response or other response or removal actions with respect to a Property or group of Properties) will submit a final Implementation Report discussing the work completed and noting any deviations from the approved plan. Within 60 days of the date DTSC finds that a remedial or removal action has been properly completed in accordance with the Final RAP or Cleanup Plan, DTSC will notify the Agency, in writing, that the immunity provided by Health and Safety Code section 33459.3, subdivision c is in effect. This immunity extends to other such parties entitled to immunity pursuant to Health and Safety Code Section 33459.3(e). In the event that Operation and Maintenance is required, the Parties agree that the immunity provided by Health and Safety Code section 33459.3(e) shall be expressly conditioned upon the satisfactory performance of all responsibilities pursuant to Task 13 ofhis Agreement. In the event that DTSC finds that the remedy is not functioningproperly and successfully, and performing as designed, or that the remedy will not attain the final performance standards or cleanup goals specified in the final RAP, Cleanup Plan, or RDIP (including the implementation and enforcement of institutional controls if applicable) DTSC will, as soon as administratively feasible, notify the Agency. TASK 10. Changes During Implementation of the Final RAP or Cleanup Plan If during implementation of the final RAP, Cleanup Plan and/or RDIP, DTSC determines that additions, modifications or revisions to such document may be necessary to protect human health and safety or the environment or to implement the final RAP, Cleanup Plan and/or RDIP, DTSC will, as soon as administratively feasible, notify the Agency and the parties will determine the appropriate revisions to such document; provided, however, and subject to the provisions of Sections 5 and 23 of the Standard Provisions concerning endangerment during implementation, nothing herein will require the Agency to continue to proceed with the implementation of the modified RAP, Cleanup Plan or RDIP with respect to a Property or group of Properties if it determines not to do so. TASK 11. Public Participation. (a) The Agency and DTSC will conduct appropriate public participation activities given the nature of the community surrounding the Property or group of Properties and the level of community interest. The Agency will work cooperatively with DTSC to ensure that the affected and interested public and community are involved in the decision -making process applicable to clean-up of the Property or group of Properties, taking into account the Agency's existing public participation capabilities and procedures. DTSC and the Agency will strive to integrate the public participation activities associated with the RAP or Cleanup Plan with the public participation activities associated with the development of the Property or group of Properties to the maximum extent possible. (b) A scoping meeting may be held to determine the appropriate activities that will be conducted to address public participation. If necessary, the Agency will then prepare a public participation plan for the Property or group of Properties that describes the proximity of homes and/or schools, day care facilities, churches, and similar uses; the current and proposed land uses within and adjacent to the Property or group of Properties; media interest; and involvement of community groups and elected officials. The plan shall also include a mailing list, identify appropriate information repositories, and specify the public participation activities that the Agency will undertake to provide opportunities for public involvement in site -related decisions. The Agency and DTSC will evaluate whether a fact sheet and public notices are necessary, as well as their content, distribution and circulation, and whether a public meeting is appropriate depending on the circumstances and the nature of the remedial or removal action, as well as any other public participation procedures. TASK 12. Land Use Covenant. If required pursuant to California Code of Regulations, title 22, section 67391.1, the Parties agree that the final RAP or Cleanup Plan will contain a requirement for a land use covenant imposing appropriate limitations on land use when hazardous substances, hazardous materials, hazardous constituents or hazardous wastes will remain at the Property at levels that are determined by DTSC as not suitable for unrestricted use of the land. If DTSC determines a land use covenant is necessary, the Agency agrees to sign and record a land use covenant approved by DTSC, or if the Agency is not the Property Owner, the Agency will arrange for the Property Owner to sign and record the land use covenant approved by DTSC. The land use covenant must be recorded in the County where the land is located prior to DTSC's determination that a remedial or removal action has been properly completed in accordance with the final Remedial Action Plan or Cleanup Plan for a Property or group of Properties. TASK 13. Operation and Maintenance (O&M). The Agency will comply with, or arrange for compliance with, all operation and maintenance (O&M) requirements or other institutional control measures, in accordance with the final RAP or Cleanup Plan. The Agency shall designate in the final RAP or Cleanup Plan the parties that will enter into an O&M Agreement, or otherwise be responsible for compliance with all O&M requirements, prior to certification of the Property or group of Properties. Compliance with any applicable O&M Agreement, and any land use covenant or other institutional control measures, must be included as a requirement for any new owner/lessee in a purchase and sale agreement for the Property or group of Properties. Any party that is responsible for O&M shall notify DTSC of any transfer of operation and maintenance responsibilities at least 30 days prior to such transfer. DTSC may, at its discretion, require the transferee to enter into a new O&M Agreement. TASK 14. Discontinuation of Cleanup Technology. Any cleanup technology employed in implementation of the final RAP or Cleanup Plan will be left in place and operated by the Agency, owner of the Property (or its successors), or such other party designated in the final RAP or Cleanup Plan until and except to the extent that DTSC authorizes the Agency, Property Owner or such other party designated in the final RAP or Cleanup Plan, in writing, of the ability to discontinue, move or modify some or all of the cleanup technology because the final remedial action has met the criteria specified in the final RAP or Cleanup Plan for its discontinuance, or because the modifications would better achieve the goals of the final RAP or Cleanup Plan. EXHIBIT E OVERSIGHT AGREEMENT COST ESTIMATE AND SCHEDULE FOR National City Public Works Yard, 2200 Hoover Avenue, National City CA 91950 Illes Family Trust site, 2020 Hoover Avenue, National City CA 91950 A detailed scope will be prepared subsequent to the completion of the scope of the Consultative Agreement between the parties already in effect. In general the scope of this Oversight Agreement will be to oversee the preparation of Phase 1I and Phase IV of the remediation for the National City Westside Infill Affordable Transit Oriented Development site. Phase 111 and Phase IV are described as preparation of remediation plans for the site, implementation of the remediation plans and regulatory closure of the site including the recordation of an Environmental Covenant for the site. DTSC estimates that charges for said oversight will be $75,000, of which a 50- percent deposit is required per the terms of this agreement. Should the total, charged on a time/fee schedule approach, be Tess than $75,000 the CDC will pay the total due. Should the charges exceed $75,000 an Amendment will be brought forward for CDC consideration. Exhibit F Oversight Agreement Standard Provisions 1. The Standard Provisions in this Exhibit F are incorporated by reference into and are a part of the Oversight Agreement. The Standard Provisions have been placed in this Exhibit F for reasons of administrative efficiency. 2. Payment Provisions. Subject to Section 2.7 of this Oversight Agreement, if any bill is not paid by the Agency within sixty (60) days after it is sent by DTSC, the Agency may be deemed to be in material default of this Oversight Agreement. If the advance payment submitted under Section 2.7.1 of this Oversight Agreement exceeds DTSC's actual costs for Oversight Agreement preparation, consultation, review, approval and oversight and other activities conducted under this Oversight Agreement, DTSC will provide an accounting for expenses and refund the difference within one hundred -twenty (120) days after termination of this Oversight Agreement in accordance with section 24 of this Exhibit. In no other case will the Agency be entitled to a refund from DTSC or to assert a claim against DTSC for any amount paid or expended under this Oversight Agreement. 3. Billing Dispute Resolution. If the Agency disputes a DTSC billing, or any part of a DTSC billing, the Agency will notify DTSC's designated Oversight Agreement Manager and attempt to informally resolve the dispute. If the Agency desires to formally request dispute resolution with regard to the billing, the Agency will file a request for dispute resolution in writing within 45 days of the date of receiving the bill in dispute. The written request will describe all issues in dispute and will set forth the reasons for the dispute, both factual and legal. The Agency will send the written request to: Special Assistant for Cost Recovery and Reimbursement Policy Department of Toxic Substances Control P. O. Box 806 Sacramento, CA 95812-0806 The Agency will also send a copy of the written request for dispute resolution to the person designated in subsection 2.5.1 of this Oversight Agreement to receive submittals. A decision on the billing dispute will be rendered by the person designated above or other DTSC designee. The existence of a dispute shall not excuse, stay or suspend any other compliance obligation or deadline required pursuant to this Oversight Agreement. 4. Communications. All DTSC approvals and decisions made regarding submittals and notifications will be communicated to the Agency in writing by DTSC's Oversight Agreement Manager or his/her designee. No informal advice, guidance, or suggestions or comments by DTSC regarding reports, plans, specifications, schedules or any other writings by the Agency shall be construed to relieve the Agency of the obligation to obtain such written approvals. 5. Endangerment During Implementation. In the event DTSC determines that any activity or operations caused by or on behalf of the Agency or its agents (whether or not pursued in compliance with this Oversight Agreement) may pose an imminent or substantial endangerment to the health and safety of people on any Property or group of Properties or in the surrounding area or to the environment: i) the Agency will take the necessary actions to abate the endangerment it created for such period of time as may be needed to abate the endangerment; or ii) if DTSC determines that conditions require DTSC to exercise its authority to abate the endangerment, the Agency may stop further implementation of this Oversight Agreement as it applies to a Property or group of Properties. However, if the Agency stops implementation, the Agency must meet the conditions under Section 12 of this Exhibit (Notification of Environmental Condition) and if necessary, must revise the applicable Scope of Work and meet the stop - work conditions as provided in Section 23 of this Exhibit (Amendments). If DTSC determines that an endangerment is the result of Agency actions that have caused a release of hazardous substances or substantially worsened the endangerment, the Agency will take those reasonable steps DTSC determines are necessary to mitigate the condition that the Agency caused substantially worsened and to secure the Property or group of Properties in order to avoid endangerment to the community. These steps may include installing a protective cover, constructing fencing and signage or other appropriate means to protect public health and the environment. The Agency will not be compelled to fully assess or mitigate a release of hazardous substances if DTSC determines that the Agency did not cause or substantially worsen the release. 6. Condition Precedent. It is expressly understood and agreed that DTSC's receipt of the advance payment described in subsection 2.7.1 of this Oversight Agreement is a condition precedent to any obligation of DTSC to provide consultation, oversight, review and/or comment on documents or to provide any work or perform any activity pursuant to this Oversight Agreement. 7. Record Retention. DTSC will retain all cost records associated with the work performed under this Oversight Agreement for such time periods as may be required by applicable state law. The Agency may request to inspect all documents that support DTSC's cost determination in accordance with the Public Records Act, Government Code section 6250 et seq. 8. Project Coordinator. The work performed for each Property or group of Properties pursuant to this Oversight Agreement will be under the direction and supervision of a qualified Project Coordinator, with expertise in hazardous substance and hazardous waste site cleanup. For each Property or group of Properties, the Agency will submit: a) the name and address of the Project Coordinator; and b) in order to demonstrate expertise in hazardous substance and hazardous waste site cleanup, the resume of the Project Coordinator. The Agency will promptly notify DTSC of any change in the identity of the Project Coordinator. All engineering and geological work shall be conducted in conformance with applicable state law, including but not limited to, Business and Professions Code sections 6735 and 7835. 9. Access. If DTSC determines access is necessary in order to perform any of the tasks contained in Exhibit C (Technical Consultation) or Exhibit D (Remediation Oversight), the Agency will exercise its best efforts to provide access for DTSC and its representatives to the Property or group of Properties subject to this Oversight Agreement for which access is needed. In the event that such access is not provided, it is understood that the implementation of tasks identified in this agreement for the Property or group of Properties or which access cannot be obtained may not proceed. The Agency will also exercise its best efforts to provide access for DTSC and its representatives access and/or obtain access to any area beyond the boundaries of the Property or group of Properties subject to this Oversight Agreement to which access is necessary to implement this Oversight Agreement. To the extent such access is obtained by the Agency, such access will be provided to DTSC's employees, contractors, and consultants at all reasonable times. Nothing in this section is intended or shall be construed to limit in any way the right of entry or inspection that DTSC or any other agency may otherwise have by operation of any law. To the extent such access can be legally obtained by DTSC or the Agency and its authorized representatives shall have the authority to enter and move freely about all property at each Property or group of Properties at all reasonable times for purposes including, but not limited to: inspecting records and operating logs, sampling activities, administering any other aspects of this Oversight Agreement relating to the Property or group of Properties, reviewing the progress of the Agency in carrying out the terms of this Oversight Agreement; conducting such tests as DTSC may determine necessary; and verifying the data submitted to DTSC by the Agency 10. Sampling, Data and Document Availability. The Agency will submit to DTSC a listing of all known reports in its possession, including sample analysis results, environmental assessment reports, and any other information in its possession pertinent to the hazardous substance and hazardous waste management and/or release, characterization and cleanup of a Property or group of Properties. The Agency will provide copies of any non -privileged reports or information requested by DTSC and will identify privileged or other confidential documents that the Agency is not providing. The Agency will also inform DTSC of any other known reports and documents, not in its possession, pertinent to the hazardous waste management and/or release, characterization and cleanup of a Property or group of Properties, including the name of the document (if known) and the identity and address of the person/entity with possession of the document (if known). 11. Notification of Field Activities. The Agency will inform DTSC at least seven (7) days in advance of all field activities which the Agency undertakes, including activities the Agency directs a third party to undertake, pursuant to this Oversight Agreement at each Property or group of Properties and will allow DTSC and its authorized representatives to take duplicates of any samples collected by the Agency pursuant to this Oversight Agreement. 12. Notification of Environmental Condition. The Agency will notify DTSC's Oversight Agreement Manager immediately upon learning of any condition posing an immediate threat to public health or safety or the environment. Within seven (7) days of the Agency's discovery of such a condition, the Agency shall submit a brief report to DTSC, setting forth the events that occurred and the measures taken, if any, in response to those events. 13. Preservation of Documentation. The Agency will maintain a central repository of the data, reports, other documents prepared pursuant to this Oversight Agreement and other documents relevant to the activities conducted under this Oversight Agreement. All such data, reports and other documents regarding a specific Property or group of Properties will be preserved by the Agency for a minimum of six (6) years after the conclusion of all activities carried out under this Oversight Agreement with respect to that Property or group of Properties . If DTSC requests that some or all of these documents be preserved for a longer period of time, the Agency will either (i) comply with that request, (ii) deliver the documents to DTSC, or (iii) permit DTSC to copy the documents prior to destruction. Following the expiration of the six - year minimum retention period for documents regarding a Property or group of Properties, the Agency will notify DTSC in writing at least ninety (90) days before to the destroying any documents prepared pursuant to this Oversight Agreement with respect to that Property or group of Properties. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the six year period with respect to the Property or group of Properties, the related records will be retained until the completion and resolution of all issues arising from that action or until the end of the six -year period, whichever is later. 14. Time Periods. Unless otherwise specified, time periods begin from the date this Oversight Agreement is fully executed, and "days" means calendar days. "Business days" means all calendar days that are not weekends or official State holidays. 15. Agency Liabilities. The Oversight Agreement shall not be construed in any manner as an admission by the Agency of any fact or liability of any kind, nor shall this Oversight Agreement be considered or interpreted as an admission or an assumption by the Agency of any liability or acknowledgement of liability or responsibility for the investigation or assessment of, response or remediation to any environmental condition on any Property or group of Properties or the costs of such activities, for which the Agency is not otherwise liable or responsible. Nothing in this Oversight Agreement shall constitute or be considered a satisfaction or release from liability for any condition or claim arising as a result of Agency's past, current, or future operations. Nothing in this Oversight Agreement is intended or shall be construed to limit the rights of any of the Parties with respect to claims arising out of or relating to the release, discharge, deposit or disposal of hazardous substances or hazardous wastes at the Property or group of Properties or at any other location, if such hazardous substances or hazardous wastes are removed from a Property or group of Properties. 16. State Government Liabilities. The State of California (State) shall not be liable for any injuries or damages to persons or property resulting from acts or omissions by the Agency or its directors, officers, employees, agents, representatives, successors, assigns, contractors or consultants in carrying out any action or activity pursuant to this Oversight Agreement. Neither DTSC nor the State may be deemed to be a party to any contract entered into by the Agency or its directors, officers, employees, agents, successors, assigns, contractors or consultants in carrying out any action or activity pursuant to this Oversight Agreement. 17. Third Party Actions. In the event that the Agency is a party to any suit or claim for damages or contribution to which DTSC is not a party, relating to a Property or group of Properties subject to this Agreement, the Agency will notify DTSC in writing within ten (10) days after service of the complaint in the third -party action. However, failure to give such notice within 10 days will not be a material breach of this agreement, and this requirement confers no rights on any third parties not party to this agreement. 18. Reservation of Rights. DTSC and the Agency each reserve the following rights. a. DTSC reserves its right to pursue cost recovery under the Comprehensive Environmental Response, Compensation and Liability act of 1980 (CERCLA), as amended, California Health and Safety Code sections 25201.9, 25343 and 25360, 33459.3 subdivision (m) and any other law. The Agency reserves its rights to pursue cost recovery under the California Health and Safety Code section 33459- 33459.8 (Polanco Act) and any other applicable section of the law. b. Nothing in this Oversight Agreement is intended or shall be construed to limit, preclude or affect the authority of DTSC to pursue any legal, equitable or administrative remedies pursuant to state or federal law or to take any action authorized by law or equity to protect public health and safety or the environment and recovering the costs thereof, including DTSC's authority to take action, or require other persons to take action, under chapter 6.5 or chapter 6.8 of division 20 of the Health and Safety Code or under the Polanco Act and to recover DTSC's costs for those actions. c. Nothing in this Oversight Agreement shall constitute or be construed as a waiver, defense to, or limitation on of the Agency's rights (including any covenant not to sue or release), with respect to any claim, cause of action, or demand in law or equity that the Agency may have against any person, as defined in section 101(21) of CERCLA, or Health and Safety Code section 25319, that is not a signatory to this Oversight Agreement. 19. Compliance with Applicable Laws. Nothing in this Oversight Agreement relieves the Agency from complying with all applicable laws and regulations, and the Agency will conform to all actions required by this Oversight Agreement to all applicable federal, state and local laws and regulations. 20. California Law. This Oversight Agreement shall be governed, performed and interpreted under the laws of the State of California. 21. Parties Bound. This Oversight Agreement applies to and is binding, jointly and severally, upon each signatory and upon any successor agency of either the Agency or the State of California that may have responsibility for and jurisdiction over the subject matter of this Oversight Agreement. No change in the ownership or corporate or business status of a Property or group of Properties or any owner of a Property or group of Properties shall alter any signatory's responsibilities under this Oversight Agreement. 22. Severability. If any portion of this Oversight Agreement is ultimately determined not to be enforceable, that portion will be severed from the Oversight Agreement and the severability shall not affect the enforceability of the remaining terms of the Oversight Agreement. 23. Amendments. Except as otherwise specified in this section and in section 2.2 this Oversight Agreement, this Oversight Agreement may be amended as specified in this section to withdraw any Property or group of Properties from this Oversight Agreement. The Agency may withdraw a Property or group of Properties from this Oversight Agreement by giving written notice to DTSC that the Agency will stop work on that Property or group of Properties within the next (30) days. DTSC may withdraw a Property or group of Properties by giving written notice to the Agency that DTSC will stop work on that Property or group of Properties within the next thirty (30) days. The effective date of withdrawal is the end of the 30 day notice period. Prior to stopping work on a Property or group of Properties, the Agency must ensure that the Property or group of Properties will pose no greater public health or environmental risk than it posed prior to the Agency's activities on the Property or group of Properties. In the event that the Agency withdraws a Property or group of Properties from this Oversight Agreement, the Agency will be responsible for DTSC's costs through the effective date of withdrawal. The Scope of Work may be amended by mutual written agreement of the parties. Such amendments or modifications are effective on the third business day following the day the last Party signing the amendment or modification sends its notification of signing to the other Party. The Parties may agree to a different effective date. An amendment to incorporate a Property or group of Properties into this Oversight Agreement and to incorporate by reference site -specific Exhibits for that Property or group of Properties shall be made as specified in subsections 2.1, 2.2, and 2. 3 of this Oversight Agreement. 24. Termination for Convenience. Except as otherwise provided in this Section, each Party to this Oversight Agreement reserves the right unilaterally terminate this Oversight Agreement for any reason. Termination requires that either Party give a thirty (30) day advance written notice of the election to terminate this Oversight Agreement to the other Party. Prior to termination the Agency must ensure that the Property or group of Properties will pose no greater health or environmental risk as a result of the Agency activities than it posed prior to the Agency's activities at the Property or group of Properties. In the event that this Oversight Agreement is terminated under this section and subject to Section 2.7 of the Oversight Agreement, the Agency will be responsible for DTSC's costs through the effective date of termination. Exhibit G SAMPLE RESOLUTION AUTHORIZING AGENCY TO CONTRACT WITH DTSC Resolution authorizing the Chairman to Execute Contracts with the California Department of Toxic Substances Control WHEREAS, the Community Development Commission determines and declares that it may enter into agreements with State agencies for 2010 - 2014, and WHEREAS, the Community Development Commission may take any actions that Community Development Commission determines are necessary and that are consistent with state and federal laws to remedy or remove a release of hazardous substances on, under, or from a property located in a Redevelopment Project Area if certain conditions are met. THEREFORE, BE IT RESOLVED BY THE Community Development Commission of the City of National City that the Chairman is hereby authorized to enter into and execute contracts for the Community Development Commission with the California Department of Toxic Substances Control, subject to all conditions. I HEREBY CERTIFY that the foregoing is a true and correct copy of a Resolution introduced and passed at a noticed meeting of the Community Development Commission held on [date]. Signed: Title of Authorized Official, the Agency will be responsible For DTSC costs through the effective date of termination. Date: STING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT 'May 18, 2010 AGENDA ITEM NO. 29 ITEM TITLE: A resolution approving the May, 2010 Amendment to an Exclusive Negotiation Agreement ("ENA") with Marina Gateway Development Company for the Marina Gateway sites north of Bay Marina Drive identified at APN #s 559-118-002, 117-04, 05, 06, 07, 12 and the adjacent vacant parcel immediately adjacent to the Caltrans right of way for Interstate 5. (Redevelopment Division) PREPARED BY: Patricia Beard [� PHONE: Ext 4255 g DEPARTMENT: R APPROVED BY: nt Division EXPLANATION: Since 2004, the Marina Gateway Development Company ("MGDC") and CDC have been committed to expanding the Marina Gateway revitalization catalyzed by the 2008 Pier 32 Marina opening and 2009 opening of the Marina Gateway Hotel and Plaza project. For these sites north of Bay Marina Drive, MGDC has conducted planning studies, marketing efforts in cooperation with CDC and CDC is completing necessary environmental site remediation to allow redevelopment to occur. The economic downturn of 2008-2010 has slowed the pace of development and no project has come forward in the past year. In view of MGDC's completion of the hotel and plaza project and its commitment to the overall Marina Gateway revitalization, staff desires to extend this ENA for an additional year. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: A developer deposit of $25,000 is on deposit for the ENA. Finance MIS ENVIRONMENTAL REVIEW: Should a project be found to be potentially feasible during the ENA period, review under the California Environmental Quality Act will be required prior to a development agreement being presented to the City Council/Community Development Commission. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution BOARD / COMMISSION RECOMMENDATION: fACHMENTS: rroposed ENA Map', RESOLUTION NO. 2010 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE MAY 2010 AMENDMENT TO THE EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND MARINA GATEWAY DEVELOPMENT COMPANY FOR THE MARINA GATEWAY SITES NORTH OF BAY MARINA DRIVE WHEREAS, on May 18, 2004, the Community Development Commission of the City of National City ("CDC") and Marina Gateway Development Company, LLC, ("Marina Gateway") entered into an Exclusive Negotiation Agreement ("ENA') for Marina Gateway to explore the feasibility of redeveloping the property located at 720 West 23rd Street, (commonly known as the Ace Metals Site — APN 559-118-02) of the City of National City Harbor Redevelopment Plan (the "Site"); and WHEREAS, on June 19, 2007, the CDC entered into a new Agreement with Marina Gateway to develop at least two restaurants on two blocks identified as 720 West 23rd Street, a vacant parcel immediately west of this site contiguous to the Ca!trans right of way for Interstate 5, and the block at 835 West 24th Street (APNs. 559-117-04, 559-117-05, 559-117-06, 559-117-07, and 559-117-12); and WHEREAS, on February 19, 2008, the CDC and Marina Gateway entered into a Memorandum of Understanding to jointly retain a marketing company to assist with tenant recruitment for the sites; and WHEREAS, on June 16, 2009, the CDC and Marina Gateway amended the ENA to allow for more time due to a national economic downturn that hindered tenant recruitment; and WHEREAS, while the economic downturn continues, the CDC and Marina Gateway are considering long term redevelopment opportunities for the Harbor District Redevelopment Project Area, including the sites subject to this ENA; and WHEREAS, the CDC and Marina Gateway desire to extend the term of the June 2009 Amendment to the ENA for one (1) additional year in which to allow for economic recovery and identify end users for the ENA sites, with Marina Gateway providing written reports to the CDC staff every 30 days to report on progress and/or problems with the proposed redevelopment. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute the May 2010 Amendment to the Exclusive Negotiation Agreement with the Resolution No. 2010 — Page 2 Marina Gateway Development Company for the Marina Gateway sites north of Bay Marina Drive identified as APNs..559-118-002, 559-117-004, 559-117-005, 559-117- 006, 559-117-007, and 559-117-12, and the adjacent vacant parcel immediately adjacent to the Caltrans right-of-way for Interstate 5. Said Amendment to Exclusive Negotiation Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III City Attorney MAY 2010 AMENDMENT to EXCLUSIVE NEGOTIATING AGREEMENT between COMMUNITY DEVELOPMENT COMMISSION of THE CITY OF NATIONAL CITY and MARINA GATEWAY DEVELOPMENT COMPANY, LLC WHEREAS, on May 18, 2004, the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic ("CDC"), and MARINA GATEWAY DEVELOPMENT COMPANY, LLC, a California limited liability company ("Developer"), entered into an EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement') for Developer to explore the feasibility of redeveloping the property located at 720 West 23`d Street, (commonly known as the Ace Metals Site — APN #559- 118-02) of the City of National City Harbor Redevelopment Plan (the "Site"). WHEREAS, on June 19, 2007 the CDC entered a new Agreement with Developer to develop at least two restaurants on two blocks identified as 720 West 23th St (as shown above), the vacant parcel immediately west of this site contiguous to the Caltrans right of way for Interstate 5, and the block at 835 West 24th Street (APNs 559-117-04, 05, 06, 07, 12); and WHEREAS, on February 19, 2008 the CDC and Developer entered a Memorandum of Understanding to jointly retain a marketing company to assist with tenant recruitment for the sites; and WHEREAS, on June 16, 2009 the CDC and Developer amended the ENA to allow for more time due to a national economic downturn which hindered tenant recruitment; and WHEREAS, while the economic downturn continues, the CDC and Developer in 2010 are considering long term redevelopment opportunities for the Harbor District Redevelopment Project Area including the sites subject to this ENA; and WHEREAS, the CDC and Developer both desire to provide an additional year in which to allow for economic recovery and identify end users for the ENA sites; NOW, THEREFORE, THE PARTIES AGREE TO AMEND THE AGREEMENT AS FOLLOWS: 1. The CDC and Developer agree to extend the time of the First Negotiation Period for a period of one year, expiring on June 30, 2011; 2. The Developer will provide written reports to the CDC staff every 30 days to report on progress and/or problems with the proposed redevelopment; and 3. Except as expressly amended herein or by prior Amendments, each and every term of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have entered into this Amendment as of May 18, 2010. Page 1 of 2 May 2010 Amendment to ENA w MGDC COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic: By: Ron Morrison, Chairman APPROVED AS TO FORM: By: George H. Eiser, III, City -CDC Attorney DEVELOPER: MARINA GATEWAY DEVELOPMENT COMPANY, LLC, a California limited liability company By: MRW Group, Inc, a Nevada corporation, Manager By: J Its: GI++t C9pa*rwnKt CPA. h c J� Page 2 of 2 May 2010 Amendment to ENA w MGDC CDC Owned Parcels Public Right of Way 55911705_ 59117041-: 5591>170�7 CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: May 18, 2010 AGENDA ITEM NO.310 :M TITLE: Resolution approving a 30-year lease at $1 per year with the Unified Port of San Diego for property in Pepper Park on which to construct the National City Aquatic and Education Center..] PREPARED BY: Patricia Beard, DEPARTMENT: Redevelopment Division PHONE: ,420 APPROVED BY- EXPLANATION: lQ'`' Since 2004, the CDC has been working cooperatively to develop a permanent facility in Pepper Park for the National City Aquatic and Education Center. These efforts have included the development of site plans and construction drawings paid for, in part, by the County of San Diego, certification of a Mitigated Negative Declaration under the California Environmental Quality Act paid for by the Port, a Port Master Plan Amendment and the operation of programming out of temporary facilities by the South Bay Family YMCA since July, 2004. The project has been on continuing extensions for building permits with the National City Building Division for more than two years because funding for construction has not been available. On May 4, 2010 the City Council authorized staff to apply for construction funding through a State Grant for ^' 'tdoor Education Facilities. Proof of property control, such as a lease, is required for the grant and d lease is attached to this item for consideration. Please see the attached Background Report for uetails about the lease. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. The cost of this 30 year lease is $30 at $1 per APPROVED: MIS year. 511-409-500-598-3816.1 ENVIRONMENTAL REVIEW: A Mitigated Negative Declaration under CEQA for the project has been certified by the Board of Port Commissioners. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: 1 ATTACHMENTS: Background Report Proposed Lease Proposed Lease Plat RESOLUTION NO. 2010 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE A 30-YEAR LEASE AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT FOR PROPERTY IN PEPPER PARK FOR THE CONSTRUCTION OF THE NATIONAL CITY AQUATIC AND EDUCATION CENTER WHEREAS, the Community Development Commission of the City of National City ("CDC") has been working cooperatively since 2004 to develop a permanent facility in Pepper Park for the National City Aquatic and Education Center; and WHEREAS, the project has been on continuing extensions for building permits with the National City Building Division for more than two years because funding for construction has not been available; and WHEREAS, on May 4, 2010, the City Council authorized staff to apply for construction funding through a State Grant for Outdoor Education Facilities; and WHEREAS, proof of property control, such as a lease agreement, is required for the grant; and WHEREAS, a 30-year lease agreement between the City of National City and the Unified Port of San Diego at the cost of $1 per year is proposed wherein the CDC will lease 8,412 square feet of land immediately south of the Pepper Park parking lot and immediately east of the boat launch ramp. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute a 30-Year Lease with the San Diego Unified Port District for property in Pepper Park for the construction of the National City Aquatic and Education Center. Said Lease Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 18th day of May, 2010. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III City Attorney ATTACHMENT 1 BACKGROUND REPORT The lease with the Port for the National City Aquatic Center includes the following terms and assumptions: • The CDC will lease 8,412 square feet of land immediately south of the Pepper Park parking lot and immediately east of the boat launch ramp; • The term will be 30 years with a one-time option to extend for an additional five years; • The lease term will commence January 1, 2011; • The rent will be $1/year; • The CDC is required to develop the Aquatic Center and associated landscaping and is prohibited from displaying any advertising or temporary banners or signs without Port permission; • The project value must be at least $2,137,561 (the construction estimate for the project was estimated at a 2009 base cost of $2,137,561, with a 2010 construction cost estimate of $3,318,364 by Harris Associates on June 25, 2009); • Public art valued at at least 1-percent of the minimum value must be added, upon approval of said art by the Board of Port Commissioners; • The lease can be terminated if construction funding is not obtained for the project. SAN DIEGO UNIFIED PORT DISTRICT LEASE TO COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY OF PROPERTY LOCATED AT GOESNO PLACE NATIONAL CITY, CALIFORNIA FOR THIRTY (30) YEARS COMMENCING January 1, 2011 AND ENDING December 31, 2040 TABLE OF CONTENTS Paragraph/Exhibit Page Number 1. TERM 1 2. USE 1 3. RENT 1 4. IMPROVEMENTS 2 5. CONSTRUCTION OF IMPROVEMENTS 3 6. TITLE TO IMPROVEMENTS 4 7. LIENS 5 8. LEASE ENCUMBRANCE 5 9. ASSIGNMENT - SUBLEASE 10 10. DEFAULTS AND REMEDIES 11 11. BANKRUPTCY 15 12. EMINENT DOMAIN 15 13. TERMINATION OF PRIOR AGREEMENTS 15 14. USE OBLIGATION 15 15. MAINTENANCE AND REPAIR 15 16. PERFORMANCE BOND 16 17. TAXES AND UTILITIES 16 18. CONFORMANCE WITH LAWS AND REGULATIONS 17 19. EQUAL EMPLOYMENT OPPORTUNITY AND NON-DISCRIMINATION 17 20. NONDISCRIMINATION 18 21. PARTIAL INVALIDITY 18 22. HOLD HARMLESS 18 23. SUCCESSORS IN INTEREST 18 24. EASEMENTS 18 25. TITLE OF LESSOR 19 26. INSURANCE 19 27. POLICY OF LESSOR 22 28. WARRANTIES -GUARANTEES -COVENANTS 22 29. DAMAGE TO OR DESTRUCTION OF LEASED PREMISES 22 30. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION 22 31. PEACEABLE SURRENDER 23 32. WAIVER 23 33. HOLDOVER 23 34. SECTION HEADINGS 23 35. ENTIRE UNDERSTANDING 23 36. TIME IS OF THE ESSENCE 24 37. NOTICES 24 38. REMOVAL OF MATERIALS 24 39. ACCEPTANCE OF LEASED PREMISES 25 40. WASTE/NUISANCE 25 41. NUMBER AND GENDER 25 42. APPLICABLE LAW 25 43. ATTORNEY'S FEES 25 44. HAZARDOUS MATERIALS 25 45. STORAGE TANKS 28 46. ENVIRONMENTAL DISCLOSURES 29 47. AS -IS LEASE AND WAIVERS 30 48. JOINT AND SEVERAL LIABILITY 33 49. ACKNOWLEDGMENT OF LESSOR'S IMPROVEMENTS 33 50. DISPUTE RESOLUTION 33 51. ABSTRACT OF LEASE 35 Exhibit "A" Exhibit "B" LEASE THIS LEASE, made and entered into this day of 20 , between the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, hereinafter "Lessor," and COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a community development commission, hereinafter "Lessee," WITNESSETH: Lessor, for the consideration hereinafter set forth, hereby leases to Lessee for the term and upon the conditions hereinafter set forth, a portion of those lands conveyed to the San Diego Unified Port District by that certain Act of the Legislature of the State of California entitled "San Diego Unified Port District Act," Stats. 1962, 1st Ex. Sess., c. 67, as amended, which lands are more particularly described as follows: Approximately 8,412 square feet of land area located at south end of Goesno Place in National City, California, hereinafter "Leased Premises", more particularly described and delineated on attached Drawing No. 028-025 dated September 12, 2008 and marked as Exhibits "A" and "B", attached hereto and by this reference made a part hereof. TO HAVE AND TO HOLD said Leased Premises for the term of the Lease and upon the conditions as follows: 1. TERM: The term of the Lease shall be for a period of thirty (30) years, commencing on the 1st day of January, 2011, hereinafter called the "Commencement Date," and ending on the 31st day of December, 2040, hereinafter called the "Termination Date," unless sooner terminated as herein provided. Provided however on the mutual agreement of the parties, Lessee shall, however, have the option to extend this Lease for one, five (5) year term. 2. USE: Lessee agrees that the Leased Premises shall be used only and exclusively for an aquatic and recreational center and for no other purposes whatsoever. This restriction on use of the Leased Premises absolutely prohibits a change in use. 3. RENT: Consideration is primarily the benefit to Lessor and the people of the state of California of having Lessee agrees to pay to Lessor rent in accordance with the following: (a) The rent for this Lease shall be the sum of One Dollar ($1.00) per year. per year. Said rent shall be payable in advance on or before the first (1st) day of the first (1st) month of each calendar year. It is acknowledged that the use provided herein is a public benefit and is further consideration for this agreement. (b) All payments shall be delivered to Lessor's Treasurer. Checks shall be made payable to the San Diego Unified Port District and mailed to the Treasurer's Office, San Diego Unified Port District, Post Office Box 120488, San Diego, California 92112-0488, or delivered to the Treasurer's Office, San Diego Unified Port District, 3165 Pacific Highway, San Diego, California. Lessor may change the designated 1 place of payment and filing at any time upon ten (10) days' written notice to Lessee. Lessee assumes ail risk of loss and responsibility for late charges, as herein described, if payments are made by mail. (c) All payments by Lessee to Lessor shall be by a good and sufficient check. No payment made by Lessee or receipt or acceptance by Lessor of a lesser amount than the correct amount of rent due under this Lease shall be deemed to be other than a payment on account of the earliest rent due hereunder, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance or pursue any other available remedy. 4. IMPROVEMENTS: In accordance with the procedures described herein, Lessee may, at its own expense, make alterations or changes, or cause to be made, built, installed, or removed any structures, machines, appliances, utilities, signs, or other improvements necessary or desirable for the authorized use of the Leased Premises. Provided, however, said work shall be in accordance with plans and specifications, including but not limited to working drawings, hereinafter "Plans," previously submitted to and approved in writing by Lessor. No construction, installation, or removal of any improvement upon the Leased Premises shall commence without Lessor's prior written approval. All construction, installations, and removals shall be in accordance with Plans submitted to and approved in writing by Lessor prior to the commencement of any such work. All Plans are subject to changes as may be approved by Lessor, in Lessor's sole discretion. Further, all work shall be in accordance with all applicable laws, regulations, ordinances, and codes. Notwithstanding the foregoing, within the interior of any enclosed building structure, and without Lessor's prior consent, Lessee shall have the right to install and/or remove machines, equipment, appliances, and trade fixtures that are necessary or desirable for the authorized use of the Leased Premises. When required by Lessor, Lessee shall, at its sole cost and expense, pave or landscape the entire portion of the Leased Premises not covered by structures. All paving and/or landscaping shall be in accordance with Plans which must be submitted to and approved in writing by Lessor prior to the commencement of any such paving and/or landscaping. (e) Lessee shall notify Lessor prior to submitting application(s) to any governmental regulatory agency for any development or construction permit or license pertaining to the Leased Premises. Lessee shall also provide Lessor with a copy of all application(s) within five (5) days of making said application(s), along with copies of all Plans submitted as part of the application(s). Lessee shall also provide Lessor, within ten (10) days of Lessee's receipt, a copy of all permits, licenses, or other authorizations subsequently issued. Lessee agrees that no banners, pennants, flags, spinners, or other advertising devices, nor any temporary signs, shall be flown, installed, placed, or erected on the Leased Premises 2 without Lessor's prior written consent. 5. CONSTRUCTION OF IMPROVEMENTS: On or before December 31, 2012, Lessee shall provide evidence of financial capability and commence the construction of and diligently proceed to completion, a aquatic and recreation center, hereinafter "Project." The Project shall be substantially in accordance with plans and specifications, including but not limited to working drawings, hereinafter "Plans," previously approved in writing by Lessor, subject to changes thereto as may be approved by Lessor, in Lessor's sole discretion. Said Plans, and any approved changes thereto, are by this reference made a part hereof. Construction of the Project shall be completed by no later than December 31, 2015. Provided, however, the commencement and completion dates may be extended pursuant to Paragraph 5(e) herein. In the event of any inconsistency between the Plans and the terms and conditions of this Lease, the terms and conditions of this Lease shall prevail. (b) Lessee shall, as a condition of this Lease, but not as a covenant, make an investment in the Project improvements in an amount which shall exceed Two - million One -Hundred Thirty-seven Thousand Five -hundred Sixty-one Dollars ($2,137,561), provided that funding is available for the project. Such investment is qualification for the term of this Lease and is not a portion of the rent obligations provided in Paragraph 3 herein. Further, neither such investment, nor such improvements, nor any other Lessee investment or improvement shall be considered by the parties hereto or any arbitrator (in the event of arbitration) in determining any rent during the term of this Lease. It is agreed that the funding for the project improvements is not to be provided by Lessee, but from outside sources, unless Lessee determines to become the source of funding. Investment in the Project improvements referenced in Paragraph 5(b) above shall include an investment of not less than Twenty-one Thousand Three -hundred Seventy-six Dollars ($21,376) in public artworks. No public artwork shall be installed on the Leased Premises unless the written approval of the Lessor has been granted. Acceptable forms of public artworks are described in Lessor's Board of Port Commissioners' Policy No. 609 and include, but are not limited to, paintings, sculptures, works of visual art, and artist -designed landscapes. (d) Within sixty (60) days following completion of any substantial improvement within the Leased Premises, but at not Tess than quarterly intervals, Lessee shall furnish Lessor an itemized statement of the actual construction cost of such improvement. The statement shall be sworn to and signed, under penalty of perjury, by Lessee or its responsible agent. Lessee shall maintain true, accurate, and complete records to support said statement. Such records shall include, but are not limited to a general ledger, vendor invoices, cancelled checks, construction loan documentation, agreements with third -party contractors, and contractor progress payment billings. Additionally, should Lessee perform any construction in-house, Lessee shall substantiate the actual work performed by maintaining a payroll journal, copies of cancelled payroll checks, and timecards or other payroll documents which show dates worked, hours 3 worked, and pay rates. Books and records herein required shall be maintained and made available either at the Leased Premises or at such other location as is agreeable to Lessor. Further, Lessor shall have the right at any and all reasonable times to examine and audit said books and records without restriction for the purpose of determining the accuracy thereof, and the accuracy of the aforesaid statement. In the event Lessee does not make available the original books and records at the Leased Premises or within the limits of San Diego County, Lessee agrees to pay all necessary expenses incurred by Lessor in conducting an audit at the location where said books and records are maintained. (e) The time(s) during which Lessee's construction is delayed by acts of God, war, invasion, rebellion, revolution, insurrection, riots, labor problems, unavailability of materials, government intervention, or acts or omissions of Lessor, shall be added to the times for the commencement and completion of construction established in Paragraph 5(a) herein. Provided, however, in no event shall the period of excused delay exceed 365 days in the aggregate. (f) Failure to comply with this Paragraph is a breach of this Lease and cause for termination in accordance with Paragraph 10 herein. 6. TITLE TO IMPROVEMENTS: For the purpose of this Paragraph, "improvements" shall include, but are not limited to subsurface improvements. On the Commencement Date of this Lease, all existing structures, buildings, installations, and improvements located on the Leased Premises are owned by and title thereto is vested in Lessee. All said existing structures, buildings, installations, and improvements, as well as structures, buildings, installations, and improvements of any kind placed on the Leased Premises by Lessee subsequent to the Commencement Date of this Lease shall, at the option of Lessor, be removed by Lessee at Lessee's expense. Lessor may exercise said option as to any or all of the structures, buildings, installations, and improvements after the Termination Date or sooner termination of this Lease. If Lessor exercises such option, Lessee shall remove such structures, buildings, installations, and/or improvements within sixty (60) days after the Termination Date of this Lease or sooner termination thereof, whichever occurs earlier. Provided, however, Lessee agrees to repair any and all damage occasioned by their removal. Title to any such structures, buildings, installations, and/or improvements not so removed within said sixty (60) days shall vest in Lessor, at a cost of one -hundred ($100) dollars paid to Lessee, except that Lessor shall have the right to have them removed and to repair any and all damage occasioned by their removal, all at the expense of Lessee. On the Commencement Date of this Lease, all existing machines, appliances, equipment, trade fixtures, and portable public artworks (i.e., artworks that are not architecturally integrated into the structures and buildings and are capable of being removed and transported to another location without being damaged) located on the Leased Premises are owned by and title thereto is vested in Lessee. Furthermore, all machines, appliances, equipment, trade fixtures, and portable public artworks placed on the Leased Premises by Lessee subsequent to the Commencement Date of this Lease are owned by and title thereto is vested in Lessee. All machines, appliances, equipment, trade fixtures, and portable public artworks shall be removed by Lessee, at Lessee's expense, within sixty (60) 4 days after the Termination Date of this Lease or sooner termination thereof, whichever occurs earlier. Provided, however, Lessee agrees to repair any and all damage occasioned by their removal. Notwithstanding the foregoing, any machines, appliances, equipment, trade fixtures, and portable public artworks placed on the Leased Premises by Lessee as qualification for the term of this Lease pursuant to Paragraph 5 herein, as well as portable public artworks located on the Leased Premises on the Commencement Date of this Lease, may only be removed by Lessee, at Lessor's option. If machines, appliances, equipment, trade fixtures, and portable public artworks required by Lessor to be removed are not removed by Lessee within sixty (60) days after the Termination Date of this Lease or sooner termination thereof, whichever occurs earlier, the same may be considered abandoned and shall thereupon become the property of Lessor, at a cost of one -hundred ($100) dollars paid to Lessee, except that Lessor shall have the right to have them removed and to repair any and all damage occasioned by their removal, all at the expense of Lessee. During any period of time employed by Lessee under this Paragraph to remove structures, buildings, installations, improvements, machines, appliances, equipment, trade fixtures, and portable public artworks, Lessee shall continue to pay the full rent to Lessor in accordance with this Lease, which said rent shall be prorated daily. 7. LIENS: Lessee shall defend, indemnify, and hold harmless Lessor against all claims and liens for labor, services, or materials in connection with improvements, repairs, or alterations made by Lessee or Lessee's sublessees, contractors, and agents on the Leased Premises, and the costs of defending against such claims and liens, including reasonable attorneys' fees. In the event any such claim or lien, or any other claim(s), lien(s) or levy(ies) whatsoever of any nature caused by Lessee or Lessee's sublessees, contractors, and agents, is filed against the Leased Premises or the leasehold interests of Lessee therein, Lessee shall, upon written request of Lessor, deposit with Lessor a bond conditioned for the payment in full of all claims upon which said lien(s) or levy(ies) have been filed. Such bond shall be acknowledged by Lessee, as principal, and by an entity licensed by the Insurance Commissioner of the state of California to transact the business of a fidelity and surety insurance company, as surety. Lessor shall have the right to declare this Lease in default in the event the bond required by this Paragraph has not been deposited with Lessor within ten (10) days after written request has been delivered to Lessee. This provision shall not apply to a foreclosure of a trust deed or mortgage encumbering the leasehold if the encumbrance has previously received Lessor consent in accordance with Paragraph 8 herein. 8. LEASE ENCUMBRANCE: (a) Lessor's Consent to Encumbrance. Lessee shall not encumber the Lease, leasehold interest, and the improvements thereon by a deed of trust, mortgage, or other security instrument to assure the payment of Lessee's promissory note, without Lessor's prior written consent, in each instance. if Lessee enters into any deed of trust, mortgage, or other security instrument that encumbers the Lease, 5 leasehold interest, or the improvements thereon without Lessor's prior written consent, Lessor shall have the right to declare this Lease in default. In the event Lessee requests Lessor's consent to any Lease encumbrance, hereinafter referred to as a "transaction" in this Paragraph 8, Lessee shall reimburse Lessor for all Lessor's reasonable costs and expenses associated with said transaction. Said costs shall include reasonable legal fees and disbursements relating to or arising out of any such transaction, regardless of whether such transaction is consummated. (b) Definition of "Consented -to -Lender". The term "Consented -to -Lender" as hereinafter used in this Lease, means the lender holding an encumbrance consented to by Lessor. It may include one or more lenders holding obligations of the Lessee secured by a single deed of trust, mortgage, or other security instrument. (c) Voluntary Lease Surrender. Without the prior written consent of the Consented -to - Lender, should Lessee owe the Consented -to -Lender any amounts under any security instrument encumbering this Lease, leasehold interest, or the improvements thereon, Lessor will not accept the voluntary surrender, cancellation, or termination of this Lease before the expiration of the term thereof. (d) Loan Default. If a deed of trust, mortgage, or other security instrument consented to by Lessor is in default at any time, the Consented -to -Lender shall, as provided by law, have the right, without Lessor's prior consent, to: (1) Accept an assignment of the Lease in lieu of foreclosure; or (2) Cause a foreclosure sale to be held pursuant to either judicial proceedings or power of sale as provided in its deed of trust, mortgage, or other security instrument. Provided, however, with the exception of said Consented -to -Lender, no assignment to the successful bidder shall be effective without Lessor's prior written consent. (e) Assume Lease Obligations. Before said Consented -to -Lender, or any other future consented -to assignee, acquires the leasehold interest, it shall, as an express condition precedent, agree in writing to assume each and every obligation under the Lease. Furthermore, before any said Consented -to -Lender, or any other future consented -to assignee or purchaser, may subsequently assign or sublease all or any portion of the leasehold interest, it shall, in each instance, obtain Lessor's prior written consent. (f) Further, a Consented -to -Lender that has: (i) acquired the leasehold interest and assumed the Lessee's obligations, or (ii) entered into a new lease pursuant to Paragraph 10 herein, concurrently with a termination of this Lease, shall be released from all further obligations under this Lease after it assigns the leasehold interest to an assignee consented to by Lessor, in accordance with this Paragraph 8. Lessor's Consent to Assignment. Whenever a Consented -to -Lender is required by the provisions of this Paragraph 8 to obtain Lessor's prior consent to an: 6 Assignment to the successful bidder upon a foreclosure by said Consented -to - Lender; or (2) Assignment or sublease of all or substantially all of the Leased Premises by said Consented -to -Lender should it become the lessee by reason of: (i) being the successful bidder upon said foreclosure, or (ii) an assignment in lieu of foreclosure, or (iii) under a new lease entered into pursuant to Paragraph 10 herein; then Lessor will grant such consent if: (i) The principal(s) of such assignee, purchaser, or sublessee are reputable (meaning the absence of reputations for dishonesty, criminal conduct, or association with criminal elements -- "reputable" does not mean "prestigious," nor does the determination of whether one is reputable involve considerations of personal taste or preference); (ii) The principal(s) of such assignee, purchaser, or sublessee possess sufficient business experience and financial means to perform Lessee's obligations under this Lease --according to the then -current standards for business experience and financial means that Lessor generally requires of new or renewed lessees at the time of the request; and (iii) The assignee, purchaser, or sublessee agrees in writing to assume each and every obligation under this Lease. Further, Lessor will not unreasonably or arbitrarily withhold such consent. Provided, however, no such assignee, purchaser, or sublessee shall subsequently: (i) assign, transfer, or sublease any or all of the Leased Premises without Lessor's prior written consent, in accordance with Paragraph 9 herein; or (ii) encumber the Lease, leasehold interest, and improvements thereon without Lessor's prior written consent, in accordance with this Paragraph 8. Provided further, if said Consented -to -Lender becomes the lessee by reason of: (i) being the successful bidder upon foreclosure, or (ii) an assignment in lieu of foreclosure, or (iii) being the lessee of a new lease entered into pursuant to Paragraph 10 herein, then said Consented -to -Lender may, upon a subsequent assignment or subleasing of all or substantially all of the Leased Premises, take back from its assignee, purchaser, or sublessee, a purchase money deed of trust, mortgage, or security instrument. Provided, however, said Consented -to -Lender must execute and submit to Lessor documentation substantially in the same form and content as was originally submitted to Lessor when consent was granted to the earlier encumbrance. Only said Consented -to -Lender or the successful bidder upon said foreclosure may enforce the provisions of this Paragraph 8. Further, no other third party shall have the rights or remedies, as third -party beneficiaries, or otherwise, hereunder. The burden of producing evidence and the burden of proof showing Lessor that a prospective assignee, purchaser, or sublessee meets each and all of the aforesaid 7 (9) qualifications and standards shall be on said Consented -to -Lender or successful bidder upon foreclosure. Lessor's decision shall be based upon Lessor's high duty of care in administering a valuable public resource, which it holds in trust for the people of the state of California. In the absence of fraud or arbitrary or unreasonable action in applying or failing to apply said standards, Lessor's decision shall be final. If Lessor Rejects Lease Transferee. In the event Lessor rejects: (i) the successful bidder upon foreclosure, or (ii) a proposed assignee or sublessee of the Consented - to -Lender (said successful bidder or Consented -to -Lender being sometimes referred to hereinafter as the "Aggrieved Party," and said successful bidder, or proposed assignee or sublessee from the Consented -to -Lender being sometimes referred to hereinafter as the "Applicant"), the sole remedy of the Aggrieved Party shall be to seek relief in the nature of specific performance through the arbitration procedure hereinafter established. Further, in no event shall Lessor be liable to the Aggrieved Party or Applicant, or any person or entity whatsoever, for money damages. Provided, however, the Aggrieved Party shall be entitled to recover such damages, if any, it may sustain as a result of Lessor's failure or refusal to comply with a Superior Court order confirming an award in favor of the Aggrieved Party in said arbitration. The issue to be submitted to arbitration shall be whether Lessor's Board of Port Commissioners' record contains substantial evidence to support the decision to reject the Applicant in accordance with the standards of reputation, business experience, and/or financial means, as provided herein. The Aggrieved Party may submit said issue to arbitration. The arbitration shall be conducted pursuant to Title 9 of Part 3 of the California Code of Civil Procedure (section references herein shall be to the Code of Civil Procedure), as amplified and modified by the following provisions: (1) Arbitration shall be initiated by the Aggrieved Party filing a written demand for arbitration with Lessor no later than thirty (30) days following Lessor's adoption of a resolution rejecting the Applicant. If the Aggrieved Party so elects, Lessor shall be deemed to have adopted a resolution rejecting an Applicant if Lessor has not acted within ninety (90) days after the Aggrieved Party files a written application for Lessor to approve the Applicant; (2) Said arbitration shall be conducted by a single neutral arbitrator who shall not be a County of San Diego resident; (3) If the parties have not agreed on the selection of the arbitrator within five (5) days after said demand for arbitration is filed, either party may petition the Superior Court of the state of California, county of San Diego, to select the arbitrator pursuant to Section 1281.6; (4) Each party shall submit its nominees, if any, to the court within five (5) days after said petition is served and filed; (5) Said arbitrator shall not conduct a trial de novo, but shall consider only said record before Lessor's Board of Port Commissioners. Provided, however, 8 said arbitrator may consider evidence outside said record if the arbitrator believes that the Board's decision was affected by Lessor's fraudulent action which was not reasonably discoverable prior to the Board's decision; (6) Said arbitrator shall make the award in writing within forty-five (45) days of being appointed; (7) (8) (9) The right of any party to take depositions for discovery purposes, as provided in Section 1283.05, shall be waived; Certain time periods established in said Title 9 shall be shortened as follows: (i) Sections 1284, 1288.4, 1290.2, and 1290.6--halved; (ii) Section 1288--four years to 30 days and 100 days to 15 days; and (iii) Section 1288.2--100 days to 15 days; San Diego, California shall be the venue of the arbitration hearing and any court proceedings; (10) The decision of the Superior Court in any proceeding to confirm, correct, or vacate the award shall be final, and the parties to said arbitration waive any rights to appeal therefrom, as provided in Sections 1294 and 1294.2, or otherwise; and (11) The parties shall bear their costs, fees, and expenses incurred in connection with said arbitration, in accordance with the provisions of Section 1284.2. (h) Notice of Foreclosure Sale. Said Consented -to -Lender shall include a statement in any Notice of Foreclosure Sale covering the foregoing requirements for Lessor's consent to an assignment upon said foreclosure. (i) Subsequent Encumbrance. Except for subleases, utility easements, and other necessary rights -of -way, Lessor shall not expressly consent to a subsequent lien or encumbrance against the Leased Premises without said Consented -to -Lender's prior written consent. (j) Assignment of Security Interest. Said Consented -to -Lender shall not assign its security interest in the Leased Premises in whole or in part without Lessor's prior written consent, in each instance. Provided, however, Lessor's consent to such an assignment shall be deemed granted (and such assignee will for all purposes of this Lease be deemed to be a Consented -to -Lender) if the assignment is to: (1) A financial institution in good legal standing under the laws of its jurisdiction of incorporation having assets exceeding Five Hundred Million Dollars ($500,000,000); or (2) The United States of America or any state thereof, or any agency thereof; or 9 (3) An assignee by operation of law; e.g., a state insurance department engaged in supervising the liquidation or rehabilitation of an insurance company lender. Provided, however, for purposes of the foregoing provisions "financial institution" shall mean: (i) an insurance company qualified to do business in the state of California; or (ii) a federally- or state -chartered bank, savings bank, or savings and loan association; or (iii) a pension or retirement fund operated for the employees and former employees of, and regulated and controlled by, the United States of America or any state thereof, or any agency thereof; e.g., the California State Teachers' Retirement System. Provided, further, no subsequent assignment by such assignee will be permitted unless: (1) The assignment conforms to all requirements of this Paragraph 8; (2) A duplicate original(s) of such assignment is furnished Lessor; and (3) In case of an assignment where Lessor's consent is deemed granted: (i) assignee promptly furnishes Lessor reasonably satisfactory evidence that said assignee complies with the foregoing requirements, and (ii) said assignee expressly agrees to take such assignment subject to all Lessor's rights under this Lease. 9. ASSIGNMENT - SUBLEASE: Lessee shall not, without the prior written consent of Lessor: (a) Assign or transfer the whole or any part of this Lease or any interest therein; (b) Sublease (which shall also include management and/or operating agreements covering the Leased Premises) the whole or any part of the Leased Premises; (c) Permit transfer of the Lease or possession of the Leased Premises by merger, consolidation, or dissolution of Lessee; (d) Notwithstanding the provisions contained in Paragraph 8 herein, permit hypothecation, pledge, encumbrance, transfer or sale, voluntary or involuntary, in whole or in part, of this Lease or any interest therein; or (e) Permit the occupancy of the whole or any part of the Leased Premises by any other person or entity. Notwithstanding the foregoing, nothing herein shall be construed to prevent the occupancy of said Leased Premises by any employee or business invitee of Lessee. Further, Lessee shall not, without the prior written consent of Lessor: 10 (a) Permit assignment, hypothecation, withdrawal, admittance, dissolution, change, pledge, encumbrance, transfer or sale, voluntary or involuntary, of any interest of a member's managing interests, limiting interests or membership interests; (b) Contract for the management or operation of the whole or any part of the Leased Premises; or (c) Permit the transfer of the Lease or possession of the Leased Premises by any changes in the respective interests of the parties comprising Lessee. It is mutually agreed that the qualifications of the Lessee, are a part of the consideration for granting this Lease. Said parties do hereby specifically agree to maintain active control and supervision of the operations conducted on the Leased Premises. In the event Lessee requests Lessor's consent to any Lease assignment, Lease transfer, Lease amendment, and/or sublease, hereinafter referred to as a "transaction," Lessee shall reimburse Lessor for all Lessor's reasonable costs and expenses associated with said transaction. Said costs shall include reasonable legal fees and disbursements relating to or arising out of any such transaction, regardless of whether such transaction is consummated. In the event Lessor consents to any Lease assignment or transfer, said consent shall be conditioned upon the following: (i) if, on the effective date of such proposed assignment or transfer, the rent being paid under this Lease is less than market rent, Lessor shall thereafter be paid additional rent to equal market rent; (ii) assignee shall agree and assume each and every obligation under the Lease; (iii) if deemed necessary by Lessor, a Lease amendment shall be executed which will include new or revised lease provisions; and (iv) assignee shall comply with other conditions and qualifications determined by the Board of Port Commissioners of Lessor. Notwithstanding, items (i), (iii), and (iv) shall not apply in the event of: (a) a Lease assignment or transfer to a third party from a Consented -to -Lender which acquired title to the Lease by foreclosure or deed in lieu of foreclosure or a new Lease pursuant to the provisions of Paragraph 10 herein, or (b) assignment or transfer of the Lease to a Consented -to -Lender by deed in lieu of foreclosure, or to a Consented -to - Lender or a third party as the successful bidder at a foreclosure sale. Upon the effective date of any said consented -to Lease assignment or transfer, assignee shall thereafter pay to Lessor the market rent. In the event Lessor consents to any sublease, said consent shall be conditioned upon the following: (i) if, upon the effective date of any said consented -to sublease, the rent being paid for the sublease area is less than market rent, Lessor shall thereafter be paid additional rent to equal market rent for the sublease area as long as said sublease is in effect; (ii) if deemed necessary by Lessor, a Lease amendment shall be executed which shall include new or revised lease provisions; and (iii) Lessee shall comply with other conditions and qualifications determined by the Board of Port Commissioners of Lessor. 10. DEFAULTS AND REMEDIES: (a) Defaults. The occurrence of any one (1) or more of the following events shall constitute a default hereunder: 11 (1) Abandonment of the Leased Premises. Abandonment is herein defined to include, but is not limited to, any absence by Lessee from the Leased Premises for ten (10) consecutive days or longer. (2) Failure by Lessee to pay, when due, any Lease -required rent, other payment, and/or charge herein, where such failure continues for a period of ten (10) days after written notice thereof_ Provided, however, any such notice provided in this Paragraph 10(a)(2) or in subsequent Paragraph 10(a)(3) shall be in lieu of, and not in addition to, any notice required under Section 1161 of the California Code of Civil Procedure, as amended. (3) Failure by Lessee to perform any other express or implied covenants or conditions in this Lease (other than any breach under Paragraph 9, for which immediate notice of termination may be given), should such failure continue for thirty (30) days after written notice thereof. (4) Subject to any restrictions or limitations placed on Lessor by applicable laws governing bankruptcy, Lessee's: (a) applying for, consenting to, or suffering the appointment of a receiver, trustee, or liquidator for all or a substantial portion of its assets; (b) making a general assignment for the benefit of creditors; (c) admitting in writing its inability to pay its debts or its willingness to be adjudged a bankrupt; (d) becoming unable to, or failing to, pay its debts as they mature; (e) being adjudged a bankrupt; (f) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization, or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); (g) convening a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium, extension, or composition of its debts; or (h) suffering, or permitting to continue unstayed and in effect for ten (10) consecutive days, any attachment, levy, execution, or seizure of all or a substantial portion of Lessee's assets or of Lessee's interest in this Lease. This Paragraph 10(a)(4) shall not be applicable or binding on the beneficiary of any deed of trust, mortgage, or other security instrument on the Leased Premises which is of record with Lessor and has been consented to by resolution of Lessor, or to said beneficiary's successors in interest consented to by resolution of Lessor, as long as there remains any monies to be paid by Lessee to such beneficiary under the terms of such deed of trust; provided that such beneficiary or its successors in interest, continuously and timely pays to Lessor all rent due or coming due under the provisions of this Lease and the Leased Premises are continuously and actively used in accordance with Paragraph 14 of this Lease, and provided that said beneficiary agrees in writing to assume and perform each and every obligation under the Lease. (5) Failure by Lessee to comply with all time periods specified in this Lease. (6) Notwithstanding Paragraph 10(a)(5), failure by Lessee to timely comply with all other provisions of this Lease. 12 (b) Remedies. In the event of any default, Lessor may exercise the following remedies: (1) Termination: Terminate Lessee's right to possession of the Leased Premises whereupon this Lease shall terminate and Lessee shall immediately surrender possession of the Leased Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee: (i) The "Worth at the Time of Award", as hereinafter defined, of the unpaid rent which had been earned at the time of termination; (ii) The 'Worth at the Time of Award" of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such Toss that Lessee proves could have been reasonably avoided; (iii) The "Worth at the Time of Award" of the amount by which the unpaid rent for the balance of the term of this Lease after the time of award exceeds the amount of such loss that Lessee proves could have been reasonably avoided; and (iv) Any other amount necessary to compensate Lessor for all the detriment proximately caused by Lessee's failure to perform its obligations under this Lease, or which would ordinarily be likely to result therefrom, including but not limited to the cost of recovering possession of the Leased Premises, expenses of reletting (including necessary repair, renovation and alteration of the Leased Premises), reasonable attorneys' fees, and any other reasonable costs. The 'Worth at the Time of Award" of the amounts referred to in Paragraphs 10(b)(1)(i) and 10(b)(1)(ii) shall be computed by charging interest at ten percent (10%) per annum from the dates such amounts accrued to Lessor. The "Worth at the Time of Award" of the amount referred to in Paragraph 10(b)(1)(iii) shall be computed by discounting such amount at one (1) percentage point above the Discount Rate of the Federal Reserve Bank of San Francisco at the time of the award. (2) Reletting: Without terminating or effecting a forfeiture of the Lease, or otherwise relieving Lessee of any obligation herein, Lessor may, but need not, relet the Leased Premises or any portion thereof, at any time or from time to time, for such terms and upon such conditions and rent as Lessor, in its sole discretion, deems proper. Regardless of whether the Leased Premises are relet, Lessee shall continue to pay to Lessor all Lease -required amounts up to the date that Lessor terminates Lessee's right to possession of the Leased Premises; provided, however, following a default, Lessor shall not unreasonably withhold its consent to any Lessee -requested assignment of this Lease or subletting of the Leased Premises, unless Lessor shall also elect to terminate this Lease and Lessee's right to possession of the Leased Premises, as provided in Paragraph 10(b)(1). Such payments shall be due at 13 (3) the times provided in this Lease and Lessor need not wait until the termination of the Lease to recover said amounts. If Lessor relets the Leased Premises, or any portion thereof, such reletting shall not relieve Lessee of any obligations herein, except that Lessor shall apply the rent or other proceeds actually collected for such reletting against amounts due from Lessee herein, to the extent such proceeds compensate Lessor for Lessee's nonperformance of any obligation herein. Lessor may execute any lease made pursuant thereto in its own name. Further, Lessor shall be under no obligation to reveal to new lessee how these proceeds were applied, nor shall said new lessee have any right to collect any such proceeds. Lessor shall not, by any reentry or other act, be deemed to have accepted Lessee's surrender of the Leased Premises or Lessee's interest therein, nor be deemed to have terminated this Lease or to have relieved Lessee of any obligation herein, unless Lessor shall have furnished Lessee with express written notice of Lessor's election to do so, as set forth herein. Other: Any and/or all other rights or remedies of Lessor specified elsewhere in this Lease or provided by law. In the event Lessor has consented to an encumbrance of this Lease for security purposes in accordance with Paragraph 8 of this Lease, it is understood and agreed that Lessor shall furnish copies of all notice(s) of default(s) to the beneficiary or mortgagee under said encumbrance by certified mail (provided Lessee has delivered to Lessor written request, therefore, together with the name and address of any such beneficiary or mortgagee) contemporaneously with the furnishing of such notices to Lessee. Furthermore, in the event Lessee fails to cure such default(s) within the time permitted herein, said beneficiary or mortgagee shall be permitted to cure such default(s) at any time within fifteen (15) days following the expiration of the period within which Lessee may cure said default(s); provided, however, Lessor shall not be required to furnish any further notice(s) of default(s) to said beneficiary or mortgagee. In the event this Lease is terminated pursuant to the provisions of this Paragraph 10, Lessor shall continue to have all rights provided in Paragraph 6 of this Lease. Notwithstanding the foregoing, should a default not be cured within the cure periods referred to above, said Lease shall not be terminated as to said beneficiary or mortgagee unless Lessor first legally offers to enter into a valid lease with said beneficiary or mortgagee, and said offer is not accepted in writing within (30) days after said offer is made. Furthermore, such new lease must be entered into as a condition concurrent with such termination for the then -remaining term of this Lease. Furthermore, the new lease must contain the same terms, conditions, and priority as this Lease, provided the mortgagee or beneficiary promptly cures all then -existing defaults under this Lease when and to the extent it is able to cure them. Such new lease may be entered into even though possession of the Leased Premises has not been surrendered by the defaulting Lessee. In such event, unless legally restrained, Lessor shall promptly proceed to obtain possession of the Leased Premises and to deliver possession to said mortgagee or beneficiary as soon as the same is obtained. Should the mortgagee or beneficiary fail to accept said offer in writing within said thirty- (30) day period, or, having so accepted said offer, should it fail promptly to cure all existing defaults under this Lease when and to the extent it is able to cure them, then 14 such termination shall also be effective as to said mortgagee or beneficiary. 11. BANKRUPTCY: Lessor shall have the right to declare this Lease in default if Lessee: (i) becomes insolvent; (ii) makes an assignment for the benefit of creditors; (iii) becomes the subject of a bankruptcy proceeding, reorganization arrangement, insolvency, receivership, liquidation, or dissolution proceeding; or in the event of any judicial sale of Lessee's leasehold interest. The conditions of this Paragraph shall not be applicable or binding on: (1) Lessee; or (2) the beneficiary in any deed of trust, mortgage, or other security instrument encumbering the leasehold interest which Lessor has consented to in writing; or (3) the aforesaid beneficiary's successors in interest which Lessor has consented to in writing, as long as there remains any monies to be paid by Lessee to such beneficiary under the terms of such deed of trust; provided Lessee, such beneficiary, or such beneficiary's successors in interest continuously pay to Lessor all rent due or coming due under the provisions of this Lease, and the Leased Premises are continuously and actively used in accordance with Paragraph 14 herein. 12. EMINENT DOMAIN: 1f any public authority takes the whole or a substantial part of the Leased Premises under the power of eminent domain, then the term of this Lease shall cease as to the part so taken from the day the possession of that part is taken. Further, the rent shall be paid up to that day. Lessee shall then have the right either to: (i) cancel this Lease and declare the same null and void; or (ii) continue in possession of the remainder of the Leased Premises under the then -current Lease terms. Provided, however, the rent shall be reduced in proportion to the value of the portion of the Leased Premises taken. 13. TERMINATION OF PRIOR AGREEMENT(S): Any and all existing permits, leases, or rental agreements between Lessor and Lessee for the Leased Premises which have not already expired or terminated, are hereby terminated on the effective date of this Lease. Any rights, duties, and obligations of the parties, if any, pursuant to the terms, covenants, and conditions in any such hereby terminated agreements shall remain enforceable and subject to all defenses, including without limitation any applicable statute of limitations. Further, said statute shall not be waived or extended because of this Lease. Nothing herein is intended nor shall be construed as a waiver of any such rights, or as a release of any such duties or obligations, whether known or unknown at this time or upon the effective date of this Lease. 14. USE OBLIGATION: Lessee shall actively and continuously use and operate the Leased Premises for the limited particular exclusive use expressly provided for in Paragraph 2, herein, except for failure to so use caused by wars, strikes, riots, civil commotion, acts of public enemies, and acts of God. Said active and continuous use and operation enhances the value of the lands within Lessor's jurisdiction; provides needed public service; and provides additional employment, taxes, and other benefits to the general economy of the area. Lessee, however, shall not and is expressly prohibited from using the Leased Premises for any other purpose or use whatsoever, whether it is purported to be in addition to or in lieu of the particular exclusive use expressly provided in Paragraph 2, herein. 15. MAINTENANCE AND REPAIR: As part of the consideration for this Lease, Lessee 15 shall assume full responsibility for operation and maintenance of the Leased Premises throughout the term and without expense to Lessor. Lessee shall perform all maintenance, which includes all painting, repairs, and replacements necessary to maintain and preserve the Leased Premises in a good, safe, healthy, and sanitary condition, satisfactory to Lessor and in compliance with all applicable laws. Provided, however, prior to Lessee performing any extraordinary repairs, plans and specifications must first be submitted to Lessor and receive Lessor approval, pursuant to the procedures provided in Paragraph 4 herein. Further, Lessee shall provide approved containers for trash and garbage and keep the Leased Premises free and clear of rubbish, litter, and any other fire hazards. Lessee waives all rights to make repairs at the expense of Lessor, as provided in Section 1942 of the California Civil Code, and all rights provided by Section 1941 of said Code. For the purpose of keeping the Leased Premises in a good, safe, healthy, and sanitary condition, Lessor always shall have the right but not the duty to enter, view, inspect, determine the condition of, and protect its interests in the Leased Premises. Provided, however, Lessor or its representatives shall: (a) conduct such entry in a manner that causes the least inconvenience and disruption to Lessee's operation as practicable; and (b) comply with all safety and security requirements of Lessee. It is not intended, however, that Lessee's safety and security requirements be used to bar Lessor's right of inspection. Further, Lessee shall provide Lessor reasonable access to the Leased Premises for such purpose. If inspection discloses the Leased Premises are not in the condition required herein, Lessee immediately must commence the necessary maintenance work, and complete said work within ten (10) days after written notice from Lessor. Further, if at any time Lessor determines the Leased Premises are not in the condition required herein, Lessor may require Lessee to file and pay for a faithful performance bond to assure prompt correction, without additional notice. The amount of said bond shall be adequate, in Lessor's opinion, to correct all unsatisfactory conditions. Notwithstanding, Lessor shall not be required to perform any maintenance, including painting, repairs, or replacements; or to make any improvements whatsoever on or for the benefit of the Leased Premises. The rights reserved in this Paragraph shall not create any obligations or increase any obligations for Lessor elsewhere in this Lease. 16. PERFORMANCE BOND: Lessee shall not commence any major construction upon the Leased Premises until performance bonds in the amount of the total estimated construction cost of the proposed improvements have been secured and submitted to Lessor. In lieu of said performance bonds, the Executive Director of Lessor may, in his sole discretion, accept performance and labor and material bonds supplied by Lessee's contractor or subcontractors, performance guarantees, or other satisfactory evidence that said construction will be timely completed. Said bonds must be in a form acceptable to Lessor and have been issued by a company qualified to do business in the state of California. 17. TAXES AND UTILITIES: This Lease may result in a taxable possessory interest and be subject to the payment of property taxes. Lessee shall pay before delinquency all 16 taxes and assessments of any kind assessed or levied upon Lessee or the Leased Premises by reason of: (i) this Lease; (ii) any buildings, machines, or other improvements of any nature whatsoever erected, installed, or maintained by Lessee; or (iii) the business or other activities of Lessee upon or in connection with the Leased Premises. Lessee also shall pay any fees imposed by law for licenses or permits for any business or activities of Lessee upon the Leased Premises, or under this Lease, and shall pay before delinquency any and all charges for utilities at or on the Leased Premises. 18. CONFORMANCE WITH LAWS AND REGULATIONS: Lessee agrees that, in all activities on or in connection with the LeasedPremises, and in all uses thereof, including the making of any alterations, changes, installations, or other improvements, it will abide by and conform to all laws and regulations. Said laws and regulations shall include, but are not limited to those prescribed by the San Diego Unified Port District Act; any ordinances of the city in which the Leased Premises are located, including the Building Code thereof; any ordinances and general rules of Lessor, including tariffs; and any applicable laws of the state of California and federal government, as any of the same now exist or may hereafter be adopted or amended. In particular and without limitation, Lessee shall have the sole and exclusive obligation and responsibility to comply with the requirements of: (i) Article 10 of Lessor Code entitled "Stormwater Management and Discharge Control," and (ii) the Americans With Disabilities Act of 1990, including but not limited to regulations promulgated thereunder, and Lessor shall have no such obligations or responsibilities as to the Leased Premises. 19. EQUAL EMPLOYMENT OPPORTUNITY AND NONDISCRIMINATION: Lessee shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the Americans with Disabilities Act of 1990; and any other applicable federal, state, or local laws and regulations now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include without limitation, laws and regulations prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non -job related criteria. In complying with all such laws, including without limitation the Americans with Disabilities Act of 1990, Lessee shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between Lessor and Lessee. Annually, Lessee shall formulate and file with Lessor an approved: (i) "Equal Employment Opportunity and Nondiscrimination Program," and (ii) "Statement of Compliance" for the promotion of equal employment opportunities and nondiscrimination. Lessee shall make such progress reports as required by Lessor, and, upon Lessor's reasonable notice, Lessee shall make available for inspection and copying all of its records relevant to compliance with this Paragraph. Provided, however, Lessee is only required to file the Program and Statement when the average annual employment level operating on the Leased Premises exceeds fifty (50) employees. Provided further, should Lessee be subject to a federally - mandated affirmative action program for employees, Lessee may, in lieu of filing the Program and Statement, annually certify in writing to Lessor that Lessee is subject to such a program, and, upon Lessor's request, Lessee shall furnish evidence thereof. For the purposes and provisions of this Paragraph, a sublessee shall be considered the 17 Lessee should the sublessee become the prime operator of the Leased Premises. Lessee's compliance with this Paragraph is an express condition hereof, and any failure by Lessee to so comply and perform shall be a default as provided in this Lease, and Lessor may exercise any right as provided herein, and as otherwise provided by law. 20. NONDISCRIMINATION: Lessee agrees at all times to fully comply with all laws now existing or hereinafter enacted, prohibiting discrimination against any person or class of persons by reason of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non -job related criteria. In complying with all such laws, including without limitation the Americans With Disabilities Act of 1990, Lessee shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between Lessor and Lessee. 21. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions herein shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated thereby. 22. HOLD HARMLESS: Lessee shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless Lessor and its officers, employees, and agents for any and all liability, claims, judgments, damages, proceedings, orders, directives, costs, including reasonable attorneys' fees, or demands arising directly or indirectly out of the obligations undertaken in connection with this Lease, or Lessee's use, occupancy, possession or operation of the leased Premises, except claims or litigation arising through the sole negligence or willful misconduct of Lessor. It is the intent of this Paragraph that Lessee indemnify and hold harmless Lessor for any actions of Lessee or Lessor, including duties that may be legally delegated to Lessee or to third parties, except for those arising out of the sole negligence or willful misconduct of Lessor. This indemnity obligation shall apply for the entire time that any third party can make a claim against or sue Lessor for liabilities arising out of Lessee's use, occupancy, possession, or operation of the Leased Premises, or arising from any defect in any part of the Leased Premises. 23. SUCCESSORS IN INTEREST: Unless otherwise provided in this Lease, the terms, covenants, conditions, and agreements herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 24. EASEMENTS: This Lease and all rights granted hereunder are subject to all easements and rights -of -way previously granted or reserved by Lessor in, upon, over, and across the Leased Premises for any purpose whatsoever. Said Lease and granted rights shall be subject to future easements and rights -of -way for access, gas, electricity, water, sewer, drainage, telephone, telegraph, television transmission, and such other Lessor or public facilities as Lessor may determine from time to time to be in the best interests of the development of the lands within Lessor's jurisdiction. Lessor agrees to make an effort to locate future easements and rights -of -way, and to install associated public facilities, so as to produce a minimum amount of interference with Lessee's business. Further, Lessee shall not be entitled to any monetary payment or other remuneration for any such future 18 easements and rights -of -way. 25. TITLE OF LESSOR: Lessor's title is derived from the provisions of the San Diego Unified Port District Act, Appendix 1, Harbors & Navigation Code, and is subject to the provisions of said Act. This Lease is granted subject to the terms and conditions of said Act. 26. INSURANCE: Lessee shall maintain insurance acceptable to Lessor in full force and effect throughout the term of this Lease. The policies for said insurance shall, as a minimum, provide the following: (a) Forms of Coverage (1) "OCCURRENCE" form Commercial General Liability covering the Leased Premises, operations, and contractual liability assumed by Lessee in this Lease in the amount of not less than Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage. The general aggregate shall be Four Million Dollars ($4,000,000) unless a Two Million Dollars ($2,000,000) per location aggregate limit is provided separate by endorsement. If alcoholic beverages are served or sold on the Leased Premises, Liquor Liability coverage in the amount of not less than One Million Dollars ($1,000,000) shall be obtained. If no alcoholic beverages are served or sold on the Leased Premises, the proof of insurance shall so state. (2) Fire and Extended Coverage, including water damage and debris cleanup provisions, in an amount not less than ninety percent (90%) of full replacement value of all improvements located within the Leased Premises. The fire and extended coverage policies shall be endorsed with a Loss Payee endorsement in favor of Lessor. It is agreed that any insurance proceeds in excess of Twenty -Five Thousand Dollars ($25,000) resulting from a loss under said policies shall be payable jointly to Lessor and Lessee to ensure that said proceeds will be reinvested in rebuilding and/or repairing the damaged portions of the Leased Premises and any damaged or destroyed improvements located thereon. Provided, however, if there is a Lessor - consented to mortgage or deed of trust encumbering the leasehold, then all fire and extended coverage policies shall be made payable jointly to the mortgagee or beneficiary and Lessee, to ensure that any proceeds shall be held by said mortgagee or beneficiary for the following purposes: (i) As a trust fund to pay for the reconstruction, repair, or replacement of the damaged or destroyed improvements, in kind and scope, in progress payments as the work is performed. Any funds remaining after completion of said work shall be retained by said mortgagee or beneficiary and applied to reduce any debt secured by such mortgage or deed of trust. Furthermore, any funds remaining after full payment of said debt shall be paid to Lessee; or 19 (3) (ii) In the event that this Lease is terminated with consent of both Lessor and said mortgagee or beneficiary, and the improvements are not reconstructed, repaired, or replaced, the insurance proceeds shall be retained, without liability, by said mortgagee or beneficiary to the extent necessary to fully discharge the debt secured by said mortgage or deed of trust. Furthermore, said mortgagee or beneficiary shall hold the balance thereof to restore the Leased Premises to a neat and clean condition. Any remaining funds shall lastly be paid to Lessor and Lessee, as their interests may appear. In the event underground storage tanks are located on the Leased Premises, Lessee is required to comply with Code of Federal Regulations, Title 40, Chapter 1, Subchapter H or Title 23, Division 3, Chapter 18 of California Code of Regulations, collectively, herein "UST Law." At the time Lessee is required to comply with any provisions of UST Law requiring financial assurance mechanisms, Lessee shall provide Lessor with a certified copy of its Certification of Financial Responsibility. If Lessee's program for financial responsibility requires insurance, then Lessee's policy(ies) shall name Lessor and its officers, employees, and agents as additional insureds, and all other terms of Subparagraph (b), below, shall apply. Should Lessee change its financial assurance mechanisms, Lessee shall immediately provide Lessor with a certified copy of its revised Certification of Financial Responsibility. (b) General Requirements (1) Alt required insurance shall be in force the first day of the term of this Lease, and shall be maintained continuously in force throughout the term of this Lease. In addition, the cost of all required insurance shall be borne by Lessee. During the entire term of this Lease, Lessee shall provide Lessor with Certificates, in a form acceptable to Lessor, evidencing the existence of the necessary insurance policies and original endorsements effecting coverage required by this Paragraph. The Certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind insurance on its behalf. Notwithstanding the foregoing, Lessor reserves the right to require complete, certified copies of all required policies at any time. (2) All liability insurance policies shall name, or be endorsed to name Lessor and its officers, employees, and agents as additional insureds and protect Lessor and its officers, employees, and agents against any legal costs in defending claims. All liability policies shall provide cross -liability coverage. All insurance policies shall be endorsed to state that coverage will not be suspended, voided, cancelled, or reduced in coverage or in limits, except after Lessee has furnished Lessor with thirty (30) days' prior written notice by certified mail. All insurance policies shall be endorsed to state that Lessee's insurance is primary and not excess or contributory to any insurance issued in the name of Lessor. Further, all insurance companies must be satisfactory to Lessor. 20 (3) Any deductibles or self -insured retentions must be declared and acceptable to Lessor. If the deductibles or self -insured retentions are unacceptable to Lessor, then Lessee shall have the option to either: (i) reduce or eliminate such deductibles or self -insured retentions as respects the Lessor and its officers, employees, and agents; or, (ii) procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. (4) Lessor shall retain the right at any time to review the coverage, form, and amount of insurance required herein. 1f, in the opinion of Lessor, the insurance provisions in this Lease do not provide adequate protection for Lessor and/or members of the public using the Leased Premises or using services connected with Lessee's use or occupancy of the Leased Premises, Lessor may require Lessee to obtain insurance sufficient in coverage, form, and amount to provide adequate protection. Lessor's requirements shall be reasonable, but shall be designed to ensure protection from and against the kind and extent of risks that exist at the time a change in insurance is required. (5) Lessor shall notify Lessee in writing of changes in the insurance requirements. With respect to changes in insurance requirements that are available from Lessee's then -existing insurance carrier, Lessee shall deposit Certificates evidencing acceptable insurance policies with Lessor incorporating such changes within sixty (60) days of receipt of such notice. With respect to changes in insurance requirements that are not available from Lessee's then- existing insurance carrier, Lessee shall deposit Certificates evidencing acceptable insurance policies with Lessor, incorporating such changes, within one hundred twenty (120) days of receipt of such notice. In the event Lessee fails to deposit insurance Certificates as required herein, this Lease shall be in default without further notice to Lessee, and Lessor shall be entitled to exercise all legal remedies. (6) If Lessee fails or refuses to maintain insurance as required in this Lease, or fails to provide proof of insurance, Lessor has the right to declare this Lease in default without further notice to Lessee, and Lessor shall be entitled to exercise all legal remedies. (7) The procuring of such required policies of insurance shall not be construed to limit Lessee's liability hereunder, nor to fulfill the indemnification provisions and requirements of this Lease. Notwithstanding said policies of insurance, Lessee shall be obligated for the full and total amount of any damage, injury, or loss caused by negligence or neglect connected with this Lease, or with the use or occupancy of the Leased Premises. (8) Lessee agrees not to use the Leased Premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance Lessor may have on the Leased Premises or on adjacent premises, or that will cause cancellation of any other insurance coverage for the Leased Premises or adjoining premises. Lessee further agrees not to keep on the 21 Leased Premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Leased Premises. Lessee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Leased Premises. (c) Lessee may satisfy the requirements of this Paragraph 26(c) by maintaining its lawful self -insured status during the term of this Lease. Lessee to issue a letter of self-insurance to Lessor as a condition of this lease 27. POLICY OF LESSOR: It is Lessor's policy that prevailing wage rates shall be paid all persons employed on the lands within Lessor's jurisdiction. 28. WARRANTIES -GUARANTEES -COVENANTS: Lessor makes no warranty, guarantee, covenant, including but not limited to covenants of title and quiet enjoyment, or averment of any nature whatsoever concerning the condition of the Leased Premises, including the physical condition thereof, or any condition which may affect the Leased Premises. It is agreed that Lessor will not be responsible for any loss, damage, and/or costs, which may be incurred by Lessee by reason of any such condition or conditions. 29. DAMAGE TO OR DESTRUCTION OF LEASED PREMISES: Should Lessee -owned improvements be: (i) damaged or destroyed by fire, the elements, acts of God, or by any other cause; or (ii) declared unsafe or unfit for occupancy or use by a public entity with the appropriate authority, (i) and/or (ii) hereinafter "event," Lessee shall, within ninety (90) days of such event, commence and diligently pursue to completion the repair, replacement, or reconstruction of the improvements necessary to permit full occupancy and use of the Leased Premises for the uses required herein. Repair, replacement, or reconstruction of such improvements shall be accomplished in a manner and according to Plans approved by Lessor. Provided, however, Lessee shall not be obligated to repair, reconstruct, or replace the improvements following their destruction in whole or substantial part, except to the extent the loss is covered by insurance required pursuant to Paragraph 26 herein (or would be covered regardless of whether such required insurance is actually in effect). If Lessee elects not to restore, repair, or reconstruct as herein required, then this Lease shall terminate. Further, Lessor shall have any rights to which it would be entitled under the provisions of Paragraph Nos. 26 and 6 herein. No event described herein shall relieve Lessee of its obligations to pay all rent and other amounts otherwise due hereunder. 30. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION: Upon termination of this Lease for any reason, including but not limited to termination because of default by Lessee, Lessee shall execute, acknowledge, and deliver to Lessor within thirty (30) days after receipt of written demand therefor, a good and sufficient deed whereby all Lessee's right, title, and interest in the Leased Premises is quitclaimed to Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may prepare and record a notice reciting the failure of Lessee to execute, acknowledge, and deliver such deed. Said notice shall be conclusive evidence of the termination of this Lease and of all right of Lessee, or those claiming under Lessee, in and to the Leased Premises. 22 31. PEACEABLE SURRENDER: Upon expiration of this Lease or earlier termination or cancellation thereof, as herein provided, Lessee shall peaceably surrender the Leased Premises to Lessor in as good condition as the Leased Premises were at the Commencement Date of this Lease, except as the Leased Premises were repaired, rebuilt, restored, altered, or added to as permitted or required by the provisions of this Lease, ordinary wear and tear excepted, and subject to Paragraph 6 herein. If Lessee fails to surrender the Leased Premises at the expiration of this Lease or the earlier termination or cancellation thereof, Lessee shall defend and indemnify Lessor from all liability and expense resulting from the delay or failure to surrender, including without limitation any succeeding lessee claims based on Lessee's failure to surrender. 32. WAIVER: Should either Lessor or Lessee waive any breach by the other of any Lease covenant, condition, or agreement, such waiver shall not be, nor be construed to be, a waiver of any subsequent or other breach of the same or any other Lease covenant, condition, or agreement. Further, failure on the part of either party to require or exact the other's full and complete compliance with any of the Lease covenants, conditions, or agreements shall not be, nor be construed as in any manner changing the terms, or preventing the enforcement in full, of the provisions hereof. In addition, Lessor's subsequent acceptance of rent hereunder shall not be deemed to be a waiver of any preceding Lessee breach of any Lease term, covenant, or condition, other than Lessee's failure to pay the particular rent so accepted, regardless of Lessor's knowledge of Lessee's preceding breach at the time rent is accepted. 33. HOLDOVER: This Lease shall terminate without further notice at expiration of the term. Any holding over by Lessee after either expiration or termination shall not constitute a renewal or extension, or give Lessee any rights in or to the Leased Premises. If Lessee, with Lessor's consent, remains in possession of the Leased Premises after Lease expiration or termination, such possession shall be deemed a month -to -month tenancy terminable upon thirty (30) days' notice furnished at any time by either party to the other. In addition, all provisions of this Lease, except those pertaining to term, shall apply to the month -to -month tenancy, and Lessee shall continue to pay all rent required by this Lease. Provided, however, if percentage rent is required by this Lease, it shall be paid monthly on or before the tenth (10th) day of each month, including the tenth (10th) day of the month following the expiration of any such holdover period. 34. PARAGRAPH HEADINGS: The Table of Contents and Paragraph Headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision thereof. 35. ENTIRE UNDERSTANDING: This Lease contains the entire understanding and agreement of the parties. Lessee acknowledges there is no other written or oral understanding or agreement between the parties with respect to the Leased Premises, and that this Lease supersedes all prior negotiations, discussions, obligations, and rights of the parties hereto. No waiver, modification, amendment, or alteration of this Lease shall be valid unless it is expressly in writing and signed by authorized representatives of the parties hereto. Each of the parties to this Lease acknowledges that no other party, agent, or representative has made any promise, representation, waiver, or warranty whatsoever, 23 expressed or implied, which is not expressly contained in writing in this Lease. Each party further acknowledges it has not executed this Lease in reliance upon any collateral promise, representation, waiver, or warranty, or in reliance upon any belief as to any fact not expressly recited in this Lease. 36. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terms and provisions of this Lease. This Lease shall inure to the benefit of and be binding upon the parties hereto and any successors of Lessee as fully and to the same extent as though specifically mentioned in each instance. All covenants, conditions, and agreements in this Lease shall extend to and bind any assigns and sublessees of Lessee. 37. NOTICES: All notices provided for by this Lease or by law to be given or served upon Lessor or Lessee shall be in writing and: (i) personally served upon Lessor or Lessee, or any person hereafter authorized by either party in writing to receive such notice, or (ii) served by certified letter addressed to the appropriate address hereinafter set forth, or to such other address designated in writing by the respective party. To Lessor Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To Lessee Community Development Commision of National City Executive Director 1243 National City Boulevard National City, CA 919504301 Should any consented -to assignee, consented -to purchaser, or Consented -to -Lender notify Lessor in writing of its desire to receive notices, such party shall also be personally served, or served by certified letter at such appropriate address designated in writing by the respective party. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the parties so served; provided, however, if served by certified mail, service will be considered completed and binding on the party served forty-eight (48) hours after deposit in the U.S. Mail. 38. REMOVAL OF MATERIALS: Lessee shall, upon expiration of this Lease or sooner termination as herein provided, remove within sixty (60) days all materials, including without limitation all ships, vessels, barges, hulls, debris, and surplus and salvage items, hereinafter "Materials," from the Leased Premises and adjacent property, so as to leave the same in as good condition as when first occupied by Lessee, subject to reasonable wear and tear. Provided, however, if Lessee fails to remove all Materials within sixty (60) days, Lessor may remove, sell, or destroy said Materials at the expense of Lessee. Further, Lessee agrees to pay Lessor the reasonable cost of such removal, sale, or destruction; or, at the option of Lessor, said Materials not removed, sold, or destroyed by Lessee shall become the property of Lessor, without cost to Lessor, and without any payment to Lessee. During any period of time required to remove said Materials, or to test for and/or remediate Hazardous Materials as required in Paragraph 44 herein, Lessee shall continue to pay the full rent to Lessor in accordance with this Lease, which said rent shall be prorated daily. 24 39. ACCEPTANCE OF LEASED PREMISES: BY SIGNING THIS LEASE, LESSEE REPRESENTS AND WARRANTS THAT IT HAS INDEPENDENTLY INSPECTED THE LEASED PREMISES AND MADE ALL TESTS, INVESTIGATIONS, AND OBSERVATIONS NECESSARY TO SATISFY ITSELF OF THE CONDITION OF THE LEASED PREMISES. LESSEE AGREES IT IS RELYING SOLELY ON SUCH INDEPENDENT INSPECTION, TESTS, INVESTIGATIONS, AND OBSERVATIONS IN MAKING THIS LEASE. LESSEE ALSO ACKNOWLEDGES THAT THE LEASED PREMISES ARE IN THE CONDITION CALLED FOR BY THIS LEASE, THAT LESSOR HAS PERFORMED ALL WORK WITH RESPECT TO THE LEASED PREMISES, AND THAT LESSEE DOES NOT HOLD LESSOR RESPONSIBLE FOR ANY DEFECTS IN THE LEASED PREMISES. LESSEE FURTHERMORE ACCEPTS, AND SHALL BE RESPONSIBLE FOR, ANY RISK OF HARM TO ANY PERSON AND PROPERTY, INCLUDING WITHOUT LIMITATION, EMPLOYEES OF LESSEE, FROM ANY LATENT DEFECTS IN THE LEASED PREMISES. Initial Lessor Lessee 40. WASTE/NUISANCE: Lessee shall not use the Leased Premises in a manner that constitutes waste or nuisance. 41. NUMBER AND GENDER: Words of any gender used in this Lease shall include any other gender and each word in the singular number shall include the plural whenever the tense requires. 42. APPLICABLE LAW: The Lease will be governed by and construed and enforced in accordance with the laws of the State of California. 43. ATTORNEY FEES: Should any suit be commenced to enforce, protect, or establish any right or remedy of any of the terms and conditions hereof, including without limitation a summary action commenced by Lessor under the laws of the state of California relating to the unlawful detention of property, the prevailing party shall be entitled to have and recover from the losing party reasonable attorney fees and costs of suit. 44. HAZARDOUS MATERIALS: (a) Definition of "Hazardous Material." The term "Hazardous Material" shall mean any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including oil and petroleum products, which now or in the future may be within the meaning of any applicable, federal, state, or local law, regulation, ordinance, or requirement at any concentration that is or has become regulated by the United States, the State of California, or any local government authority having jurisdiction over the Leased Premises. (b) Lessee Use of Hazardous Materials. Lessee shall not cause or permit any Hazardous Material, or products or materials which include any hazardous substance as a component, to be generated, brought onto, used, stored, emitted, released or disposed of in or about the Leased Premises by Lessee or its agents, employees, contractors, sublessees, or invitees unless expressly approved, at Lessor's sole discretion, in writing by Lessor after submittal by Lessee of Material 25 (e) Safety Data Sheets ("MSDS") or other information requested by Lessor. Limited quantities of equipment, materials and supplies customarily used in connection with the construction of improvements and standard office, food service and janitorial supplies customarily used in places of business which contain chemicals categorized as Hazardous Material are excluded from this requirement. Lessee shall use, store, and dispose of all such Hazardous Materials in strict compliance with all applicable statutes, ordinances, regulations, and other requirements in effect during the Lease Term that relate to public health and safety and protection of the environment ("Environmental Laws"); and shall comply at all times with all Environmental Laws. (c) Notice of Release or Investigation. If during the term of this Lease (including any extensions), Lessee becomes aware of (i) any actual or threatened release of any Hazardous Material on, in, under, from, or about the Leased Premises; or (ii) any inquiry, investigation, proceeding, or claim (collectively "Inquiry") by any government agency or other person regarding the presence of any Hazardous Material on, in, under, from or about the Leased Premises, Lessee shall give Lessor written notice of the release or Inquiry within five (5) days after Lessee learns or first has reason to believe there has been a release or Inquiry and shall simultaneously furnish to Lessor copies of any claims, notices of violation, reports, warning or other writings received by Lessee that concern the release or Inquiry. (d) Lessor Right to Inspect. If Lessee has in the past or continues to use, dispose, generate, or store Hazardous Materials on the Leased Premises, Lessor or its designated representatives, at Lessor's sole discretion, may at any time during the term of this Lease, but is no way obligated to, enter upon the Leased Premises and make any inspections, tests or measurements Lessor deems necessary to determine if a release of Hazardous Materials has occurred. Lessor shall furnish Lessee a minimum of twenty-four (24) hours' notice in writing prior to conducting any inspections or tests, unless, in Lessor's sole judgment, circumstances require otherwise. Such tests shall be conducted in a manner so as to attempt to minimize any inconvenience and disruption to Lessee's operation as is practicable. If such tests indicate a release of Hazardous Materials, then Lessor, at Lessor's sole discretion, may require Lessee, at Lessee's sole expense and at any time during the term of this Lease, to have such tests for such Hazardous Materials conducted by a qualified party or parties on the Leased Premises. If Lessor has reason to believe any Hazardous Materials originated from a release on the Leased Premises have contaminated any area outside the Leased Premises, including but not limited to surface and groundwater, then Lessor, at Lessor's sole discretion, may require Lessee, at Lessee's sole expense and at any time during the term of this Lease, to have tests for such Hazardous Materials conducted by a qualified party or parties on said area outside the Leased Premises. Lessor's failure to inspect, test or take other actions pursuant to this Paragraph 44(d) regarding the Leased Premises, shall in no way relieve Lessee of any responsibility for a release of a Hazardous Material. Clean-up Obligations. If the presence of any Hazardous Material brought onto the Leased Premises by Lessee or Lessee's employees, agents, sublessees, contractors, or invitees, or generated by same, results in contamination of the Leased Premises, adjacent properties or the San Diego Bay, Lessee shall promptly 26 take all necessary actions, at Lessee's sole expense, to remove or remediate such Hazardous Materials. Lessee shall provide notice to Lessor prior to performing any removal or remedial action. Lessee shall not propose nor agree to any covenant of use restriction as part of any removal or remediation required as a result of this Paragraph 44(e). To the extent Lessor incurs any costs or expenses in performing Lessee's obligation to clean-up contamination resulting from Lessee's operations or use of the Leased Premises, Lessee shall promptly reimburse Lessor for all costs and expenses incurred within thirty (30) days. Any amounts not so reimbursed within thirty (30) days after Lessee's receipt of an itemized statement therefore shall bear interest at the Prime Rate plus Five Percent (5%) per annum compounded monthly. This provision does not limit the indemnification obligation set forth in Paragraph 44(f). The obligations set forth in this Paragraph 44(e) shall survive any expiration or other termination of this Lease. (i) Clean-up Extending Beyond Lease Term. Should any clean-up of Hazardous Materials for which Lessee is responsible not be completed prior to the expiration or sooner termination of the Lease, including any extensions thereof, then: (A) Lessee shall deposit into an escrow account an amount of money equal to the balance of the estimated costs of the clean-up, together with instructions for the disbursement of such amount in payment of the costs of any remaining clean-up as it is completed, and (B) if the nature of the contamination or clean-up required of Lessee is of such a nature as to make the Leased Premises untenable or unleaseable, then Lessee shall be liable to Lessor as a holdover lessee until the clean-up has been sufficiently completed to make the Leased Premises suitable for lease to third parties. The estimated cost of the clean-up shall require approval of the Lessor. (ii) Financial Security. If Lessor determines, in its reasonable discretion, that Lessee does not have insurance or other financial resources sufficient to enable Lessee to fulfill its obligations under this Paragraph 44(e), whether or not accrued, liquidated, conditional, or contingent, then Lessee shall, at the request of Lessor, procure and thereafter maintain in full force and effect such environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to Lessor as is appropriate to assure that Lessee will be able to perform its duties and obligations hereunder. (f) Indemnification. Lessee shall, at Lessee's sole expense and with counsel reasonably acceptable to Lessor, indemnify, defend, and hold harmless Lessor and Lessor's directors, officers, employees, partners, affiliates, agents, successors, and assigns with respect to all losses, including reasonable attorneys' and environmental consultants' fees, arising out of or resulting from Lessee's occupancy or use of the Leased Premises, or the violation of any applicable Environmental Law, by Lessee or Lessee's agents, assignees, sublessees, contractors, or invitees. This indemnification applies whether or not the concentrations of any such Hazardous Material is material, the concentrations exceed state or federal maximum contaminant or action levels, or any government agency has issued a clean-up or other order. This indemnification shall survive the expiration or termination of this Lease. This indemnification includes, but is not necessarily limited to: 27 (g) (i) Losses attributable to diminution in the value of the Leased Premises; (ii) Loss or restriction of use of rentable space(s) in the Leased Premises; (iii) Adverse effect on the marketing of any space(s) in the Leased Premises; (iv) All other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation; and, (v) All costs (including reasonable attorneys' fees, consulting fees and subcontracted costs) incurred by Lessor in undertaking any assessment or remediation of the Leased Premises that might not have been fully resolved by Lessee by the time this Lease terminates or expires. Lessor shall have a direct right of action against Lessee even if no third party has asserted a claim. Furthermore, Lessor shall have the right to assign said indemnity. Termination of Lease. Upon the expiration or earlier termination of the term of the Lease, Lessee shall: (i) cause all Hazardous Materials previously owned, stored, or used by Lessee to be removed from the Leased Premises and disposed of in accordance with all applicable provisions of law; (ii) remove any underground or aboveground storage tanks or other containers installed or used by Lessee, or its predecessors, to store any Hazardous Material on the Leased Premises, and repair any damage to the Leased Premises caused by such removal; (iii) cause any soil or other portion of the Leased Premises which has become contaminated by any Hazardous Material stored or used by Lessee, or its predecessors, to be decontaminated, detoxified, or otherwise cleaned -up in accordance with the applicable requirements of any relevant government authorities; and (iv) surrender possession of the Leased Premises to Lessor free of contamination attributable to Hazardous Materials generated or used by Lessee or stored or disposed of by any party other than Lessor in or on the Leased Premises. 45. STORAGE TANKS: (a) Underground Storage Tanks. No underground storage tanks ("USTs") shall be permitted to be installed on the Leased Premises during the term of this Lease without the prior written consent of the Lessor's Executive Director in his or her sole and absolute discretion. In the event Lessee obtains such approval to install a UST on the Leased Premises, Lessee shall be responsible for complying with all laws and regulations pertaining to such UST, including tank monitoring of such UST as required by the County of San Diego Hazardous Material Management Division (HMMD) or any other responsible agency. Lessee further agrees to take responsibility for reporting unauthorized releases from USTS to HMMD and the Lessor within twenty-four (24) hours of such unauthorized release. Lessee will be responsible for all fees and costs related to the unauthorized release of any 28 Hazardous Material including, but not limited to: investigative, surface and groundwater clean-up, and expert and agency fees. Lessee shall maintain evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and/or property damage caused by a release from a UST. Lessee further agrees to be responsible for maintenance and repair of the USTs; obtaining tank permits; filing a business plan with HMMD or other responsible agency; and for paying UST fees, permit fees, and other regulatory agency fees relating to USTs. Lessee agrees to keep complete and accurate records on the Leased Premises for a period of not less than thirty-six (36) months from the applicable events including, but not limited to, permit applications, monitoring, testing, equipment installation, repairing and closure of the USTs, and any unauthorized releases of Hazardous Materials. Lessee also agrees to make such records available for Lessor or responsible agency inspection. Lessee further agrees to include a copy of Health and Safety Code, Chapter 6.7, Section 25299, as part of any agreement between Lessee and any operator of USTs. Furthermore, Lessee shall be responsible for compliance with all other laws and regulations presently existing, or hereinafter enacted, applicable to USTs, including without limitation any such laws and regulations which alter any of the above requirements. (b) Aboveground Storage Tanks. No aboveground storage tanks ("ASTs") shall be permitted to be installed on the Leased Premises during the term of this Lease without the prior written consent of the Lessor's Executive Director in his or her sole and absolute discretion. In the event Lessee obtains such approval to install an AST, Lessee shall be responsible for complying with all laws and regulations pertaining to such AST. Lessee shall, in accordance with this Lease and applicable laws and regulations, secure and pay for all necessary permits and approvals, prepare a spill prevention control counter measure plan and conduct periodic inspections to ensure compliance therewith, including conformance with the latest version of said applicable laws and regulations. In addition, Lessee shall maintain and repair said tanks to conform and comply with all other applicable laws and regulations for ASTs, including without limitation all of the requirements of Health & Safety Code, Chapter 6.67, Sections 25270 through 25270.13 as presently existing or as hereinafter amended, including without limitation conducting daily visual inspection of said tanks, allowing the San Diego Regional Water Quality Control Board ("SDRWQCB"), Lessor, and/or responsible agency, to conduct periodic inspections. Lessee also shall comply with valid orders of the SDRWQCB, filing the required storage tank statement and payment of the fee therefor, establishing and maintaining the required monitoring program and systems, reporting spills as required, and payment of lawfully imposed penalties as provided therein and as otherwise provided by law. The Lessee shall be responsible for all costs associated with any unauthorized release from ASTS, including but not limited to, investigative, surface and groundwater clean-up, and expert and agency fees. 46. ENVIRONMENTAL DISCLOSURES: Lessee understands and agrees that the Leased Premises are being leased in an "as is, with all faults" condition and that 29 improvements, grading, filling, removal of existing improvements, and relocation of utility lines shall be made and performed by Lessee at the sole cost and expense of Lessee. Lessee further understands and agrees that the "as -is, with all faults" condition of the Leased Premises includes any contamination of the Leased Premises, including structures, soils, groundwater, and adjacent San Diego Bay water and sediment, and that information received from Lessor regarding such matters may not be complete or accurate and should not be accepted as such. Lessee hereby acknowledges that excavation of soils from the Leased Premises could result in exportation of a regulated waste requiring appropriate characterization, handling, transport and disposal (together "Regulated Waste Removal"). Lessor takes no responsibility and assumes no liability whatsoever for Regulated Waste Removal. Accordingly, Lessee hereby waives any claim, or potential claim, it may have to recover costs or expenses arising out of or associated with Regulated Waste Removal and agrees to indemnify, defend and hold harmless Lessor from and against any and all claims, liabilities, losses, damages, costs, and expenses arising from, out of, or in any way related to Regulated Waste Removal. Lessor accepts no liability or responsibility for ensuring that Lessee's workers, including without limitation those conducting testing, construction and maintenance activities on the Leased Premises, are satisfactorily protected from residual contaminants in 29 Code of Federal Regulations ("CFR"). Lessee shall assess all human health risks from vapor transport or direct contact with residual hazardous substances or contaminants and incorporate such engineering and institutional controls as may be required to sufficiently protect human health of onsite workers and transient visitors. Lessee hereby waives any claim, or potential claim, it may have to recover any damages, losses, costs and expenses related to worker exposure or alleged exposure to any residual onsite contamination and to indemnify, defend and hold harmless Lessor from and against any and all such claims, liabilities, losses, damages, costs, and expenses. 47. "AS -IS" LEASE AND WAIVERS: Lessee's execution of the Lease shall fully and finally constitute: (a) Lessee's Acknowledgment. Lessee's acknowledgment that Lessor has given to Lessee sufficient opportunity to consider, inspect and review, to Lessee's complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Leased Premises; (2) the physical condition of the Leased Premises, including, without limitation, the condition of the buildings (if any) and the soils, subsoil media, and groundwaters at or under the Leased Premises; (3) the effect upon the Leased Premises of any and all applicable federal, state or local statutes, ordinances, codes, regulations, decrees, orders, laws or other governmental requirements (collectively, "Applicable Laws"); (4) the development potential of the Premises including without limitation on the preceding clause (3), the effect of all Applicable Laws concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; (5) the financial prospects of the Leased Premises and local market conditions; (6) Lessee's determination of the feasibility of Lessee's intended use and enjoyment of the Leased Premises; and (7) all other facts, circumstances, and conditions affecting, concerning or relating to the Leased Premises. The land use; the environmental, biological, physical and 30 legal condition of the Leased Premises; the feasibility of Lessee's intended use and enjoyment of the Leased Premises and such other facts, circumstances and conditions being collectively referred to herein as the "Condition of the Leased Premises"; and, without limitation on any other provision of this Lease, Lessee expressly assumes the risk that adverse conditions affecting the Leased Premises have not been revealed by Lessee's investigations. (b) Only Lessor's Express Written Agreements Binding. Lessee acknowledges and agrees that no person acting on behalf of Lessor is authorized to make, and that except as expressly set forth in this Lease, neither Lessor nor anyone acting for or on behalf of Lessor has made, any representation, warranty, statement, guaranty or promise to Lessee, or to anyone acting for or on behalf of Lessee, concerning the Condition of the Leased Premises or any other aspect of the Leased Premises. Lessee further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any person acting on behalf of Lessor which is not expressly set forth in this Lease will be valid or binding on Lessor. (c) As -Is Lease. Lessee further acknowledges and agrees that Lessee's execution of this Lease shall constitute Lessee's representation, warranty and agreement that the Condition of the Leased Premises has been independently verified by Lessee to its full satisfaction, and that, except to the extent of the express covenants of Lessor set forth in this Lease, Lessee will be leasing the Leased Premises based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of Lessee's representatives; and that LESSEE IS LEASING THE LEASED PREMISES IN ITS "AS -IS, WITH ALL FAULTS" CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE LESSEE'S EXECUTION OF THIS LEASE. Without limiting the scope or generality of the foregoing, Lessee expressly assumes the risk that the Leased Premises do not or will not comply with any Applicable Laws now or hereafter in effect. (d) Waivers, Disclaimers and Indemnity. (i) Waiver and Disclaimer. Lessee hereby fully and forever waives, and Lessor hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Leased Premises, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. (ii) Lessor's Materials. Lessee further acknowledges that any information and reports including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which Lessee has received or may hereafter receive from Lessor or its agents or consultants have been furnished without warranty of any kind and on the express condition that Lessee will make its own independent verification of the accuracy, reliability and completeness of such information and that Lessee will not rely thereon. 31 Accordingly, subject to terms of Paragraph 47(e) below, Lessee agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Lessor or any of the persons or entities who prepared or furnished any of the above information or materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such information or materials and Lessee hereby fully and forever releases, acquits and discharges Lessor and each person furnishing such information or materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown. (e) Release and Waiver. (i) Release. Except to the extent of Claims (as defined below) against Lessor arising from any breach by Lessor of its covenants and obligations expressly provided in this Lease, Lessee, on behalf of Lessee, its successors and assigns, hereby fully and forever releases, acquits and discharges Lessor of and from, and hereby fully forever waives: Any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, "Claims"), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that Lessee or any of Lessee's successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (A) any act or omission of Lessor (or any person acting for or on behalf of Lessor or for whose conduct Lessor may be liable), whether or not such act be the active, passive or sole negligence of Lessor, in connection with prior ownership, maintenance, operation or use of the Leased Premises; (B) any condition of environmental contamination or pollution at the Leased Premises (including, without limitation, the contamination or pollution of any soils, subsoil media, surface waters or groundwaters at the Leased Premises); (C) to the extent not already included in clause (B) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Leased Premises, (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Leased Premises or into any soils, subsoils, surface waters or groundwaters at the Leased Premises); (D) the violation of, or noncompliance with, any Environmental Requirement or other Applicable Law now or hereafter in effect, however and whenever occurring; (E) the condition of the soil at the Leased Premises; (F) the condition of any improvements located on the Leased Premises including, without limitation, the structural integrity and seismic compliance of such improvements; (G) any matters which would be shown on an accurate ALTA land survey of the Leased Premises (including, without limitation, all existing easements and encroachments, if any); (H) all Applicable Laws now or hereafter in effect; (I) matters which would be apparent from a visual inspection of the Leased 32 Premises; or (J) to the extent not already covered by any of the foregoing clauses (A) through (I) above, the use, maintenance, development, construction, ownership or operation of the Leased Premises by Lessor or any predecessor(s)-in-interest in the Leased Premises of Lessor. (ii) Waiver of Civil Code Section 1542. With respect to all releases made by Lessee under or pursuant to this Paragraph 47, Lessee hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Lessee: 48. JOINT AND SEVERAL LIABILITY: If Lessee, as a party to this Lease, is a partnership; joint venture; or is comprised of more than one party or entity, or a combination thereof; the obligations imposed on Lessee under this Lease shall be joint and several, and each general partner, joint venturer, party or entity of Lessee shall be jointly and severally liable for said obligations. Furthermore, nothing herein shall be deemed or construed as creating a partnership or joint venture between Lessor and Lessee, or between Lessor and any other entity or party, or cause Lessor to be responsible in any way for the debts or obligations of Lessee, or any other party or entity. 49. ACKNOWLEDGMENT OF LESSOR'S IMPROVEMENTS: Lessee agrees that it has examined the Leased Premises and the condition thereof, that the improvements thereon in their present condition are satisfactory and usable for Lessee's purposes, and that no representations as to value or condition have been made by or on behalf of Lessor. 50. DISPUTE RESOLUTION: Except for (i) a dispute or disagreement as to the amount of rent that Lessee is to pay Lessor or (il) a default in the payment of rent, all other disputes or disagreements between or among the parties arising out of or relating to the terms, conditions, interpretation, performance, default or any other aspect of this Lease, such parties shall first attempt to resolve the dispute informally. In the event the dispute is not resolved informally, prior to and as a precondition to the initiation of any legal action or proceeding, the parties shall refer the dispute to mediation before a retired State or Federal judge mutually selected by the parties. The dispute shall be mediated through informal, nonbinding joint conferences or separate caucuses with an impartial third party mediator who will seek to guide the parties to a consensual resolution of the dispute. The mediation proceeding shall be conducted within thirty (30) days (or any mutually agreed longer period) after referral, and shall continue until any party involved concludes, in good faith, that there is no reasonable possibility of resolving the dispute without resort to a legal action or proceeding. All costs of the mediation shall be shared equally by the parties involved. Each party shall bear its own attorneys' fees and other costs incurred in connection with the mediation. In the event the parties are unable to resolve the dispute through mediation, in addition to any other rights or remedies, any party may institute a legal action. 33 ABSTRACT OF LEASE 51. ABSTRACT OF LEASE: This is the final Paragraph and Abstract of Lease, hereinafter "Abstract," dated , between SAN DIEGO UNIFIED PORT DISTRICT, Lessor, and COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation, Lessee, concerning the Leased Premises described in Exhibits "A" and "B," attached hereto and by this reference made a part hereof. For good and adequate consideration, Lessor leases the Leased Premises to Lessee, and Lessee hires them from Lessor, for the term and on the provisions contained in the Lease dated , including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Lessor in each instance, all as more specifically set forth in said Lease, which said Lease is incorporated in this Abstract by this reference. The term is thirty (30) years, beginning January 1, 2011, and ending December 31, 2040. This Abstract is not a complete summary of the Lease. Provisions in this Abstract shall not be used in interpreting the Lease provisions. In the event of conflict between this Abstract and other parts of the Lease, the other parts shall control. Execution hereof constitutes execution of the Lease itself. Dated: , 20_ Port Attorney SAN DIEGO UNIFIED PORT DISTRICT By By Karen J. Weymann Director, Real Estate COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation By Name: Title: 35 (FOR USE BY SAN DIEGO UNIFIED PORT DISTRICT) (STATE OF CALIFORNIA) (COUNTY OF SAN DIEGO) On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Though the information below is not required by law, it may prove valuable to the person(s) relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name ❑ Individual ❑ Corporate Officer -Title(s): ❑ Partner -- ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHT THUMBPRINT Top of thumb here Signer's Name ❑ Individual ❑ Corporate Officer -Title(s): ❑ Partner -- ❑ Limited ❑ General o Attorney in Fact o Trustee o Guardian or Conservator o Other: Signer is Representing: — RIGHT THUMBPRINT Top of thumb here 36 (FOR USE BY GUARANTOR) (STATE OF CALIFORNIA) (COUNTY OF SAN DIEGO) On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Though the information below is not required by law, it may prove valuable to the person(s) relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name o Individual o Corporate Officer -Title(s): o Partner -- o Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHT THUMBPRINT Top of thumb here Signer's Name o Individual ❑ Corporate Officer -Title(s): ❑ Partner -- o Limited o General o Attomey in Fact o Trustee ❑ Guardian or Conservator o Other: Signer is Representing: - — RIGHT THUMBPRINT Top of thumb here 37 \\\' ©Dew§§7 527-001 20' WATER ES MT. STI G S ER LINE 3" DIA. BRASS DISK MON. STAMPED "SDUPD-020" AS SHOWN ON R.O.S. 16668. RAMP BOAT LAUNCH FACILITY S60'33'14"W 22.85' 528-001 EASEMENT UMIT LINE OF COUNTY OF SAN DIEGO (DOC. NO. 17271 FILED AUG. 30, 1984) NOTES: 1. LEASE AREA SHOWN SHADED. 2. BEARINGS AND DISTANCES ARE GRID AND BASED UPON THE CALIFORNIA COORDINATE SYSTEM ZONE 6, NAD 83, EPOCH 1991.35. 1 528-003 SDG&E EASEMENT 028-010 028-010 \ MARINA GROUP, PIER 32 PIER 1 LLC. MARINA GROUP. PARCEL NO.2 LLC. `PARCEL N0.1 583'38'48"W 23.01' S60'33'14"W 23.01' S83'38'48'W 22.89' DETAIL (SEE SHEET 2 OF 2) S60'33' 14"W 41.02' SWEET -WATER RIVER CHANNEL LIMIT PER CALTRANS RIGHT OF WAY MAP NO. 49503 DATED DEC. 1983 P 205.00' TO _ J S OF SWEETWATER 11 i - DATA TABLE: RIVER CHANNEL GRAPHIC SCALE 10 S70'38'59"E-383.59'(CALC.) 0 10' 20' 40' 02 N33'22'53"W-60.00' 03 N72'06'01"E-87.30' 1" = 40' DRAWN DARWIN VAOUEZ CHEC KED�Ac.R'470W14- REVIEWEIi A44/1x4iGz., SAN DIEGO UNIFIED PORT DISTRICT TIDELAND LEASE WITHIN CORPORATE UMITS OF NATIONAL CRY CITY OF NATIONAL CITY AQUATIC CENTER DATE SEPT, 12. 2008 SCALE 1 "=40' REF 028-010 DRAWING NO SHEET 1 OF .2 028-025 DEVSERV\REMI\E28\028-025\028-025-091208dwg. 7/ L 7L.4GJDg' N72'06'01 "E 87.30' ........ :-::::EASEMENT •LIMIT_ _ UNE.. :•: ..:::•COUNTY OF SAN DIEGO -•=- (DOC. NO. ::FILED AUG. 30, 1984)._•: GRAPHIC SCALE 0 5' 10' 15' 1" = 15' 028-010 PIER 32 MARINA GROUP, LLC. PARCEL NO. 1 A=11719'21" L-44.23' R=21.60' DETAIL SCALE: 1 "=15' 028-010 \ PARCEL NO. 2 L.=29'08'47" L=18.98' R=37.30' \ N87'07'02"W 4.57' S26-43'14 E` 4.08' N72'06'01 "E 3.80' DRAWN DARWIN VASOUEZ CHECKED isfLv722Nf - REVIEWECrrlHf44ltiou, - A7ellenill vND SAN DIEGO UNIFIED PORT DISTRICT TIDELAND LEASE WITHIN CORPORATE OMITS OF NATIONAL CRY CITY OF NATIONAL CITY AQUATIC CENTER DATE SEPT. 12. 2008 SCALE 1'=15' REE 028-010 DRAWING SHEETZOFQ2 028-025 DEVSERV\REMI\E028\028-025\028-025--091208dwg. Legal Description for CITY OF NATIONAL CITY AQUATIC CENTER TIDELAND LEASE Within Corporate Limits of National City All that certain portion of land conveyed to the San Diego Unified Port District by that certain Act of Legislature of the State of California pursuant to Chapter 67, Statutes of 1962, First Extraordinary Session, as amended, and delineated as Parcel 1-A on that certain Miscellaneous Map No. 564, filed in the Office of the San Diego County Recorder on May 28, 1976, File No. 76-164686, in the City of San Diego, County of San Diego, State of Califomia, and more particularly described as follows: Commencing at a 3" diameter brass disk monument stamped "SDUPD-020" as shown on Record of Survey Map No. 16668, filed in the office of the San Diego County Recorder on July 25, 2000; thence along a tie -line South 70°38'59" East a distance of 383.59 feet (calculated) to the TRUE POINT OF BEGINNING; thence North 72°06'01" East a distance of 87.30 feet; thence South 17°53'59" East a distance of 1.30 feet; thence North 72°06'01" East a distance of 13.57 feet; thence South 17°53'59" East a distance of 1.85 feet, thence North 72°06'01" East a distance of 10.00 feet; thence North 26°24'43" West a distance of 5.10 feet; thence North 33°14'07" East a distance of 0.85 feet; thence South 87°07'50" East a distance of 2.36 feet to the beginning of a non -tangent 21.60 foot radius curve, concave southeasterly to which a radial bears North 83°11'22" West; thence northeasterly along the arc of said curve through a central angle of 117°19'21" an arc distance of 44.23 feet to the beginning of a 37.30 foot radius compound curve, concave southwesterly; thence southeasterly along the arc of said curve through a central angle of 29°08'47" an arc distance of 18.98 feet; thence South 26°43'14" East a distance of 4.08 feet; thence North 87°07'02" West a distance of 4.57 feet; thence South 17°53'59" East a distance of 8.50 feet; thence North 72°06'01" East a distance of 3.80 feet; thence South 17°53'59" East a distance of 4.20 feet; thence South 72°06'01" West a distance of 3.80 feet; thence South 17°53'59" East a distance of 24.73 feet; thence South 84°22'14" West a distance of 7.50 feet; thence South 60°33'14" West a distance of 41.02 feet; thence South 83°38'48" West a distance of 23.01 feet; thence South 60°33'14" West a distance of 23.01 feet; thence South 83°38'48" West a distance of 22.89 feet; thence South 60°33'14" West a distance of 22.85 feet; thence North 33°22'53" West a distance of 60.00 feet to the TRUE POINT OF BEGINNING, containing 8,412 square feet or 0.19 acre of tidelands area. The above described land area is delineated on the San Diego Unified Port District Drawing No. 028-025, dated September 12, 2008 and made a part of this agreement. All bearings and distances in the above legal description are grid, and based upon the California Coordinate System, Zone 6, N.A.D. 83, Epoch 1991.35. 9 z 08 Charles J. Sefk w Date L.S. 7876 Expires 31 Dec. 2008 Land Surveyor San Diego Unified Port District ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT May 18, 2010 AGENDA ITEM NO. 31 ITEM TITLE: Old Town Neighborhood Action Plan Update Report to Council PREPARED BY: Brad Raulston' PHONE: Ext. 4256 EXPLANATION: DEPARTMENT: Csu sty Dev-lopment APPROVED BY. '` The purpose of the Old Town Neighborhood Action Plan (OT-NAP) is to 1) implement planning priorities established in the Westside Specific Plan, 2) develop resource strategies to address those priorities, and 3) carry out the specific actions to make neighborhood improvements. The OT-NAP will direct the coordination and allocation of resources and programs needed to realize the vision of the Old Town neighborhood. The NAP is a 5-year strategic document that establishes short-term (1 year or Tess), mid-term (1-5 --irs), and Tong -term (more than a year) goals and objectives, identifies priorities (high, medium, & ), and action steps in an effort to provide improvements and services at the neighborhood level. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. APPROVED: MIS N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Accept and file report. BOARD / COMMISSION RECOMMENDATION: N/A 'ACHMENTS: 1. Draft Old Town Neighborhood Action Plan OLD TOWN • NEI = ORHOOD ACTION PLAN TABLE OF CONTENTS A. Introduction B. Neighborhood Map C. Actions and Action Steps 1. Education and Public Participation 2. Land Use and Community Character 3. Circulation and Parking 4. Housing 5. Health and Environmental Justice 6. Safety 7. Noise and Nuisance 8. Open Space and Agriculture 9. Conservation and Sustainability D. Timeline and Schedule of Events E. List of Responsible Parties Abbreviations Old Town Action Plan THIS PAGE INTENTIONALY LEFT BLANK - 3 - Old Town Action Plan A. Introduction A Neighborhood Action Plan (NAP) is an action -oriented document for helping residents, businesses, and property owners improve their neighborhoods. NAPs are developed as a way to implement long-range planning goals found in the City's General Plan or Specific Plans. The City's General Plan identifies city-wide and broad neighborhood -based- issues and includes long-range goals, policies, and implementation measures to address those issues. More specifically, the Westside Specific Plan (WSP) focuses on the particular concerns of the Old Town neighborhood. The OT-NAP provides a list of steps for neighborhood participants to follow in order to achieve desired outcomes. The OT-NAP will identify responsible parties for implementation, such as the City of National City, other partner agencies such as the EPA and National School District, non- profits and service organizations, private contributors, and a Neighborhood Organized Workforce (NOW). NOW recruits volunteers and matches donated community service hours with meaningful tasks. Implementation of the NAP is the shared responsibility of neighborhood residents, businesses, and property owners, City staff, and in some cases, other governmental agencies and non -governmental organizations. The NAP is a 5-year strategic document that establishes anticipated or desired timeframes for implementation of specified actions, short-term (1 year or less), mid-term (1-5 years) and long- term (more than 5 years), along with action steps, in an ongoing effort to provide improvements and services at the neighborhood level. The responsible parties may use the NAP to develop more specific work programs and uncover funding sources. Action steps may be conceptual in nature and require more detailed analysis. Funding sources may not be available for action steps identified in the NAP; moreover, the implementation of action steps is subject to the availability of adequate resources. The purpose of the OT-NAP is to: 1) implement planning priorities established in the Westside Specific Plan and other adopted long-range planning documents; 2) develop resource strategies to address those priorities, and 3) identify the specific actions to make neighborhood improvements. The OT-NAP will direct the coordination and allocation of resources and programs needed to realize the vision of the Old Town neighborhood. -4- Old Town Action Plan _. .. NATIONALI Y BLVD you u1mmmmou1_.l �{r_1-I - 1 LL _ ._n.T.... .-�----- -- �_ ��� J �� i ,N i -LL-I n=m, �111�1 1 _M�111�111�n_Int �n_.1�� 1_ � _ n��� r_ .. LI_1 nI J 71u�_ w�u1_n _1n_m_m_,n�1,_ I�1 = 1 I 1I1 IJIi I-- 1L_IM L CL -71 •DT q z LI [I TT 11,E 111f 11 I WILL r[IT- L C_ ___ _ _ w HARDING i1- I-�I1 C =�; I I1 I1fLf AID�r ��� N ii `Tl 1p;1'l I i1 � L 1 ii ILL _� I Lie-"ilIIIII WILSON 1 �ry Old Town Action Plan C. Actions and Action Steps EDUCATION AND PUBLIC PARTICIPATION Partner with schools and contribute to an active and informed citizenry. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-1 Partner with Kimball School to launch a volunteer drive and form the Neighborhood Organized Workforce (NOW). • Organize students and the neighborhood into 5-teams (Goal is 1,000 hours per team). • Create meaningful tasks for volunteer time. • Announce winners of the volunteer drive at the neighborhood kick-off meeting. NC -CS NSD-K OT-2 Organize neighborhood clean-up on June 12 and participate in Paradise Creek clean-ups on the last Saturday of every month. NOW EDCO PCEP OT-3 Help organize a back to school event where NOW volunteers work with Kimball School to prepare for the upcoming school year. NOW NSD-K OT-4 Upgrade Casa de Salud as an information magnet and neighborhood activity center. • Work with existing resources to upgrade facility • Display NOW jobs/needs bulletin board • Convert upstairs into kids center NC -CS NOW OT-5 Develop an OT-NAP website to facilitate information dissemination, communication, social networking, recruitment, participation, and reporting/monitoring. NC -CS NOW 4l�p.US AND4jCOMMUNITY CHARACTER, Reestablish Old Town as a safe, healthy, and vibrant neighborhood. SHORT_;TERM <: Action # Actions and Action Steps Responsible Parties OT-6 Enforce land use and zoning provisions adopted in the Westside Specific Plan. • Engage the Police Department and citizen patrols in code compliance. • Provide incentives to build model projects and convert non- conforming uses. • Begin amortizing non -conforming businesses. NC-DS NC-CD-NS NC-PD OT-7 Preserve the historic character of the neighborhood. • Complete a list of historically significant structures. NOW NCHS -6- Old Town Action Plan MI b `TERilfl, Action # Actions and Action Steps Responsible Parties OT-8 Incorporate public art in the neighborhood. • Have students and/or local artists involved in public projects. • Allow local artists to display temporary or permanent public art installations. • Have students or local artists paint buildings or wall murals. NOW NSD-K Promote public transit, walking, and bicycling, while still accommodating vehicular traffic and parking. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-9 Complete a Safe Route to School along Coolidge Avenue. • Present concepts at the neighborhood kick-off meeting. • Hire design consultant and prepare project specifications. • Refine concept based on budget and neighborhood review. • Contract with the most qualified consultant with the lowest bid. • Complete project prior to 2011 school year. NC-DS-E NC-PW OT-10 Improve parking conditions. • Utilize West Avenue for college parking. • Target enforcement in problem areas. • Restrict commercial vehicles from parking on residential streets. • Develop parking districts where needed. NC-DS-E NC-PW MID TERM Action # Actions and Action Steps Responsible Parties OT-11 Improve street crossing at National City Boulevard to improve access to Kimball Park and the library. NC-DS-E NC-PW OT-12 Expand and improve Paradise Creek paths and connections. NC -CD LONG TERM Action # Actions and Action Steps Responsible Parties OT-13 Create a two-way access along Wilson Avenue from the 24th Street Trolley Station to Mile of Cars Way and vacate Hoover between 22"d and Mile of Cars Way. NC-DS-E NC-PW OT-14 Maintain streets by addressing concerns and scheduling resurfacing. NC-PW -7- Old Town Action Plan HOUSING Provide a variety of housing opportunities for residents of all ages and incomes. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-15 Complete Habitat for Humanity project. ?? OT-16 Extreme Makeover of Old Town (5 Major Rehabs) • Recruit private/public sponsors/partners. • Build contest rules. • Have homeowners submit needs. ?? MID TERM Action # Actions and Action Steps Responsible Parties OT-1 7 Construct Westside Infill Transit Oriented Development (WI-TOD). • Complete land acquisition. • Finalize design specifications. • Secure funding and build project. R-CHW ?? HEALTH AND ENVIRONMENTAL JUSTICE Improve public health through design of the built environment. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-18 Create incentives for Kimball School students to walk/bike to school. • Develop annual walking to school contest. • Create a walking and/or biking school bus with faculty and volunteers. o Parent patrol o Fire fighters as volunteer walking and PE ambassadors o Prizes/incentives provided at carnivals • Complete Coolidge Avenue Safe Route to School project. NOW NC-PD NC-FD NC-DS-E OT-19 Establish a bike/helmet loaner program. • Obtain donated and/or impounded bicycles and helmets. • Set up community bike racks. NC-PD NC -CS OT-20 Begin amortization by notifying businesses and initiating the process on June 1st NC -CD NC-DS OT-21 Pursue site specific industrial park as receiver site for incompatible non -conforming uses NC -CD OT-22 Work with Kimball School and FRC to create monthly Mercado/health fair. -- NOW NSD-K FRC -8- Old Town Action Plan MID TERM Action # Actions and Action Steps Responsible Parties OT-23 Work with corner stores to offer healthy food choices. • Develop a concept and approach Big B for consent. • Utilize storefront improvement funds. • Create a "no risk for local organic produce" program. ?? Improve sense of safety and deter criminal activities through environmental design. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-24 Involve retired senior volunteer patrol (RSVP), Cadets, and Citizen Patrol in safety measures. ?? OT-25 Provide adequate street and park lighting. • Include a lighting program in the Coolidge Safe Route to School NC-PW OT-26p Develop a public safety camera system. ?? Decrease disturbances associated with noise and other nuisances. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-27 Strengthen code enforcement by updating the municipal code. • NCMC 10.54.050 • NCMC 7.20.140(c) • NCMC 18.14.160(H) NC-DS NC-CD-NS OT-28 Collaborate with SANDAG and Caltrans to install a freeway noise wall. • Research innovative measures such as vegetation SANDAG Caltrans NC -CD OT-29 Work with MTS, Burlington Northern Santa Fe (BNSF) Railway, and San Diego and Imperial Valley Railway to minimize noise associated with the trolley and trains (e.g. wayside warning systems) NC-DS-E OT-30 Require maintenance of properties, especially front yards and building facades that are visible from the public right-of-way. • Utilize housing rehab funds, • Neighborhood clean ups, and • Stricter code enforcement NOW NC-CD-NS OT-31 Aggressively abate nuisances. • Gangs/criminal behavior • Illegal or harmful business practices • Aggressive/barking dogs NC-CD-NS NC-PD -9- Old Town Action Plan OPEN SPACE AND AGRICULTURE Increase access to parks, open space, and neighborhood gardens. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-32 Continue building improvements to Paradise Creek as funds become available. • Obtain funding for Paradise Creek Park through the WI-TOD. • Utilize the EPA Pilot Program to make progress. • Find funding for the Paradise Creek Revitalization Plan. NC -CD NC-DS R-CHW PCEP EPA HUD HCD MID TERM Action # Actions and Action Steps Responsible Parties OT-33 Build a pocket park/community garden. NOW ICF LONG TERM Action # Actions and Action Steps Responsible Parties OT-34 Create a better connection to the Harbor District, Paradise Marsh, and the Marina. NC-DS DOT/Caltrans CONSI=RVATION AND SUSTAINABILITY < < Explore creative solutions for water and energy conservation, water quality preservation, and reduction of the city's carbon footprint. SHORT TERM Action # Actions and Action Steps Responsible Parties OT-35 Initiate a weatherization program. • Partner with MAAC to promote the program. • Involve SDG&E (e.g. LIEE Program) • Pilot air quality program with "clean house" NC-CD-HG MAAC SDG&E EHC OT-36 Work with SDG&E on conservation programs. • Install smart meters • Solar programs • Create a model at Casa de Salud NC-DS-E SDG&E OT-37 Work with EDCO on RRR programs • Establish a neighborhood compost program. • EDCO One Bin Capital Investment • Neighborhood Clean Up • School composting • Resident composting NC-CD-NS NC-PD OT-38 Develop efficient energy generating plant at 401 Mile of Cars Way ?? OT-39 Work with partners to incorporate BMPs and innovative green solutions into development projects. ?? - 10 - Old Town Action Plan D. Timeline and Schedule of Events May 18, 2010 Update to City Council and Community June 1 City Council Meeting • Introduce tougher code enforcement tools • Initiate amortization on 1-3 businesses • Present concepts for Coolidge Corridor • Announce OT Clean Up and other events • Adopt weatherization demonstration project June 4-6 Kick off of NOW volunteer drive at Kimball School on June 4th to coincide with St. Anthony's centennial festival June 12 Old Town Neighborhood Clean Up July 2 Announce results of NOW volunteer drive and housing recipients at Carnival July 4 — Sept 16 Summer of Action - 11 - Old Town Action Plan E. List of Responsible Parties and Contact Information PUBLIC NC-CMO NC-CAO NC -CS NC-CD-H NC-CD-R NC-CD-NS NC-PD NC-FD NC-PW NC-DS-E NC-DS-B NC-DS-P NC-L NSD-A NSD-K SD -A SD-SHS SD-NSD C-HHS C-FRC SWA PD NAVY NGO/NON- SDGE MAAC HFH CIJ ICF-NCF EHC PCEP NCHS PRIVATE EDCO McR R-CHW City of National City of National City of National City of National City of National City of National City of National City of National City of National City of National City of National City of National City of National City- City Manger's Office City- City Attorney's Office City- Community Services City- Community Development — Housing & Grants City- Community Development — Redevelopment City- Community Development — Nghd Services City- Police Department City- Fire Department City- Public Works City- Development Services- Engineering City- Development Services- Building City- Development Services- Planning City- Library National School District Administration National School District- Kimball School Sweetwater Unified School District Administration Sweetwater Unified School District- Sweetwater High School Sweetwater Unified School District- National School District County- Health and Human Services County- Family Resource Center Sweetwater Water Authority Port District Navy PROFIT San Diego Gas & Electric/Sempra MAAC Project Habitat for Humanity Christmas in July International Community Foundation- National City Farms Environmental Health Coalition Paradise Creek Educational Park National City Historic Society EDCO Waste Services McMillan Realty Related/Community Housing Works ITEM #32 5/18/10 GENERAL PLAN UPDATE - COMMUNITY WORKSHOP (EXECUTIVE DIRECTOR, COMMUNITY DEVELOPMENT) ITEM #33 5/18/10 CLOSED SESSION REPORT (CITY ATTORNEY)