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HomeMy WebLinkAbout2004 CON CDC San Diego Port District - Occupancy Permit Pepper ParkSan Diego Unified Port District Document No. 47385 MA Filed TIDELAND USE AND OCCUPANCY PERMIT Office of the District Clerk THIS PERMIT, granted this 4 day of in , 20,0 by the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, hereinafter called "District," to COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation, hereinafter called "Tenant," WITNESSETH: District for the considerations hereinafter set forth, hereby grants to Tenant upon the terms and conditions and for the purposes and uses hereinafter set forth, the right to use and occupy 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 1,000 square feet of land located in Pepper Park, City of National City, as further described in Exhibit " A", attached hereto and by this reference made a part hereof. This Permit is granted upon the following terms and conditions: 1. TERM: The term of this Permit shall be for one (1) year, commencing on the 10th day of February, 2004, and ending on the 9th day of February, 2005, unless sooner terminated as herein provided. 2. CONSIDERATION: Consideration for this Tideland Use and Occupancy Permit is the public benefit of providing a temporary location for a youth aquatic center. 3. USE: The above -described premises shall be used only and exclusively for the purpose of storage of two (2) 10' X 40' trailers in the location as further described in Exhibit " A" and for no other purpose whatsoever without the prior written consent of the Executive Director of District in each instance. 1 DUPLICE - ORIGINAL 4. ASSIGNMENT -SUBLEASE -ENCUMBRANCE: Tenant shall not encumber this Permit, the premises thereof and the improvements thereon by a deed of trust, mortgage, or any other security instrument without the express written consent of the District, evidenced by resolution first had and obtained in each instance. Furthermore, neither the whole nor any part of the rented premises nor any of the rights or privileges granted by this Permit shall be assignable or transferable in any way without such consent. Nor shall Tenant grant any permission to any other person to occupy any portion of the rented premises without such consent. Any such purported assignment, transfer, sublease, encumbrance, or permission given without such consent shall be void as to District. 5. IMPROVEMENTS: Tenant acknowledges prior examination of the premises and the condition thereof, and agrees that the improvements thereon, if any, are in their present condition, satisfactory and usable for Tenant's purposes and that no representations as to value or condition have been made by or on behalf of District. Tenant agrees that it shall make no changes or alterations in the premises, nor make, erect, or install any machines, electrical/water service, signs, or other improvements thereon without the consent in writing of the Executive Director of District. Tenant further agrees to provide proper containers for trash and to keep the premises free and clear of rubbish, debris, and litter at all times. 6. MAINTENANCE: Tenant hereby agrees that the premises are in a good and tenantable condition, that Tenant will take good care of the premises and appurtenances, including any personal property belonging to District; and that Tenant, as a part of the consideration for rental stated above, will at Tenant's sole cost and expense keep and maintain said premises, appurtenances, and personal property in good and sanitary condition and repair during the term of this Permit, subject to normal and ordinary wear and tear resulting from the use of the above -described premises as herein provided. District shall at no time during the term of this Permit be required to make any improvements or repairs to the above -described premises. 7. TITLE TO IMPROVEMENTS: On the commencement date of the term of this Permit, all existing structures, buildings, installations, and improvements of any kind located on the above -described premises are owned by and title thereto is vested in ". Any installations or improvements subsequently placed on the premises by Tenant in such fashion as to be permanently attached thereto shall be and remain the property of District and shall not be removable by Tenant. Machines, appliances, mobile trailers, and equipment of any kind placed on the above - described premises by Tenant are owned by and title thereto is vested in Tenant and shall be removed by Tenant within thirty (30) days after the expiration of the term of 2 this Permit or sooner termination thereof; provided, however, Tenant agrees to repair any and all damage occasioned by the removal thereof. If any such machines, appliances, and equipment are not removed within thirty (30) days after the termination of this Permit, the same may be considered abandoned and shall thereupon become the property of District without cost to the District and without payment to Tenant, except that District shall have the right to have the same removed at the expense of Tenant. During any period of time employed by Tenant under this paragraph to remove machines, appliances, and equipment, Tenant shall continue to pay the full rental to District in accordance with this Permit which said rental shall be prorated daily. 8. REMOVAL OF MATERIALS: Tenant hereby agrees that upon the expiration of this Permit or the sooner termination as herein provided, it will remove within thirty (30) days all debris, surplus, and salvage materials from the land area and water area forming a part of or adjacent to the above -described premises, so as to leave the same in as good condition as when first occupied by Tenant, subject to reasonable wear and tear; provided, however, that if any said debris, surplus, and salvage materials shall not be so removed within thirty (30) days by Tenant, District may remove, sell, or destroy the same at the expense of Tenant; and Tenant hereby agrees to pay District the cost of such removal, sale, or destruction; or at the option of District, the title to said debris, surplus, and salvage materials not removed shall become the property of District. During any period of time employed by Tenant under this paragraph to remove debris, surplus and salvage materials, or test for and/or remediate Contaminants as required in this Permit, Tenant shall continue to pay the full rental to District in accordance with this Permit which said rental shall be prorated daily. 9. TERMINATION: This Permit may be terminated by Executive Director of District or his duly authorized representative or Tenant as a matter of right and without cause at any time upon the giving of thirty (30) days' notice in writing to the other party of such termination. 10. HOLD HARMLESS: Tenant shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless District 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 Permit, or Tenant' s use, occupancy, possession or operation of the above -described Premises, except claims or litigation arising through the sole negligence or willful misconduct of District. It is the intent of this Paragraph that Tenant indemnify and hold harmless District for any 3 actions of Tenant or District, including duties that may be legally delegated to Tenant as to third parties, except for those arising out of the sole negligence or willful misconduct of District. This indemnity obligation shall apply for the entire time that any third party can make a claim against or sue District for liabilities arising out of Tenant' s use, occupancy, possession or operation of the above -described Premises, or arising from any defect in any part of the Premises. 11. INSURANCE: Tenant shall maintain "OCCURRENCE" form Commercial General Liability Insurance covering premises and operations in the amount of not Tess than Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage suffered or alleged to be suffered by any person or persons whatsoever resulting directly or indirectly from any act or activities of Tenant, of any person acting for it or under its control or direction, or any person authorized by it to use the rented premises. Either the general aggregate limit shall apply separately to this location or the general aggregate limit shall be twice the required occurrence limit. All required insurance shall be in force the first day of the term of this Permit. All insurance companies must be satisfactory to District, and the cost of all required insurance shall be borne by Tenant. Certificates in a form acceptable to District evidencing the existence of the necessary insurance policies, and original endorsements effecting coverage required by this clause, shall be kept on file with District during the entire term of this Permit. Certificates for each insurance policy are to be signed by a person authorized by that insurer to issue evidence of coverage on its behalf. Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The District reserves the right to require complete, certified copies of all required policies at any time. All liability insurance policies will name, or be endorsed to name, District, its officers, officials and employees as additional insureds and protect District, its officers, officials and employees against any legal costs in defending claims. All insurance policies will be endorsed to state that coverage will not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested has been given to the District. And, all insurance policies will be endorsed to state that Tenant's insurance is primary and not excess or contributing to any insurance issued in the name of District. Any deductibles or self -insured retentions must be declared and acceptable to the District. At the option of the District, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the District, its officers, officials, and employees; or, the Tenant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4 District shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of District, the insurance provisions in this Permit do not provide adequate protection for District and/or for members of the public, District may require Tenant to obtain insurance sufficient in coverage, form and amount to provide adequate protection. District's requirements shall be reasonable but shall be designed to assure protection from and against the kind and extent of risk which exist at the time a change in insurance is required. District shall notify Tenant in writing of changes in the insurance requirements and, if Tenant does not deposit certificates evidencing acceptable insurance policies with District incorporating such changes within sixty (60) days of receipt of such notice, this Permit shall be in default without further notice to Tenant, and District shall be entitled to all legal remedies. The procuring of such required policies of insurance shall not be construed to limit Tenant's liability hereunder, nor to fulfill the indemnification provisions and requirements of this Permit. Notwithstanding said policies of insurance, Tenant shall be obligated for the full and total amount of any damage, injury, or Toss caused by negligence or neglect connected with this Permit or with the use or occupancy of the rented premises. District accepts tenant' s public agency self-insurance/risk retention program and coverage to constitute full compliance with this paragraph. 12. CONFORMANCE WITH RULES AND REGULATIONS: Tenant agrees that, in all activities on or in connection with the above -described premises, and in all uses thereof, including the making of any alterations, changes, installations, or other improvements, it shall 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 above -described premises are located, including the Building Code thereof; any ordinances and general rules of District, 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, Tenant shall have the sole and exclusive obligation and responsibility to comply with the requirements of: (i) Article 10 of District 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 District shall have no obligations or responsibilities as to the above -described premises. 13. POLICY OF DISTRICT: It is the policy of District that prevailing wage rates shall be paid all persons who are employed by Tenant on the property of District. Tenant has discretion to determine if prevailing wage rates apply to public agencies. 5 14. DEFAULT: If any default be made in the payment of the rental herein provided or in the fulfillment of any terms, covenants, or conditions hereof, and said default is not cured within ten (10) days after written notice thereof, this Permit shall immediately terminate and Tenant shall have no further rights hereunder and shall immediately remove from said premises; and District shall immediately thereupon, without recourse to the courts, have the right to reenter and take possession of said premises. District shall further have all other rights and remedies as provided by law, including without limitation the right to recover damages from Tenant in the amount necessary to compensate District for all the detriment proximately caused by Tenant's failure to perform its obligations under this Permit or which in the ordinary course of things would be likely to result therefrom. 15. LIENS: Tenant agrees that it will at all times save District free and harmless and defend and indemnify it against all claims and liens for labor, services or materials in connection with improvements, repairs, or alterations on the premises caused to be performed by Tenant, and the costs of defending against such claims, including reasonable attorney's fees. 16 BANKRUPTCY: In the event Tenant commences a proceeding under Chapter XI of the Federal Bankruptcy Act, or is adjudicated bankrupt or insolvent, or a judicial sale is made of Tenant's interest under this Permit, this Permit shall at the option of District immediately terminate and all rights of Tenant hereunder shall immediately cease and terminate.. 17. EASEMENTS: This Permit and all rights given hereunder shall be subject to all easements and rights -of -way now existing or heretofore granted or reserved by District in, to, or over the premises for any purpose whatsoever, and shall be subject to such rights -of -way for reasonable access, sewers, pipelines, conduits, and such telephone, telegraph, light, heat, or power lines as may from time to time be determined by District to be in the best interests of the development of the tidelands. ]istrict agrees that such easements and rights -of -way shall be so located and installed s to produce a minimum amount of interference to the business of Tenant. 3. TITLE OF DISTRICT: District's title is derived from the provisions of the San ego Unified Port District Act, Appendix 1, Harbors & Navigation Code, and is subject the provisions of said Act. This Permit is granted subject to the terms and ditions of said Act. JOINT AND SEVERAL LIABILITY: If Tenant, as a party to this Permit, is a iership or joint venture, or is comprised of more than one party or entity or a 6 combination thereof, the obligations imposed on Tenant under this Permit shall be joint and several, and each general partner, joint venturer, party, or entity of Tenant shall be jointly and severally liable for said obligations. Furthermore, nothing contained herein shall be deemed or construed as creating a partnership or joint venture between District and Tenant or between District and any other entity or party, or cause District to be responsible in any way for the debts or obligations of Tenant, or any other party or entity. 20. NONDISCRIMINATION: Tenant agrees at all times to fully comply with all laws prohibiting discrimination against any person or class of persons by reason of sex, color, race, religion, handicap or national origin. If the use provided for in this Permit allows the Tenant to offer accommodations or services to the public, such accommodations or services shall be offered by the Tenant to the public on fair and reasonable terms. In complying with all such laws, including, without limitation, the Americans With Disabilities Act of 1990, Tenant shall be solely responsible for such compliance and required programs and there shall be no allocation of any such responsibility between District and Tenant. 21. ENTIRE UNDERSTANDING: This Permit contains the entire understanding of the parties, and Tenant, by accepting the same, acknowledges that there is no other written or oral understanding between the parties in respect to the above -described premises. No modification, amendment, or alteration of this Permit shall be valid unless it is in writing and signed by the parties hereto. 22. PEACEABLE SURRENDER: Upon the termination of this Permit by the expiration thereof or the earlier termination as by the terms of this Permit provided, Tenant will peaceably surrender said above -described premises in as good condition, subject to normal and ordinary wear and tear resulting from the use of such premises as herein provided, as the same may be at the time Tenant takes possession thereof, and to allow District to take peaceable possession thereof. 23. HOLDOVER: This Permit shall terminate without further notice at expiration of the term. Any holding over by Tenant after either expiration or termination shall not constitute a renewal or extension or give Tenant any rights in or to the premises. If Tenant, with District's consent, remains in possession of the premises after expiration or termination of the term or after the date in any notice given by District to Tenant terminating this Permit, such possession by Tenant shall be deemed to be a month -to - month tenancy terminable on thirty (30) days' notice given at any time by either party. All provisions of this Permit, except those pertaining to term, shall apply to the month - to -month tenancy. 7 24. ACCEPTANCE OF PREMISES: BY SIGNING THIS PERMIT, TENANT REPRESENTS AND WARRANTS THAT IT HAS INDEPENDENTLY INSPECTED THE PREMISES AND MADE ALL TESTS, INVESTIGATIONS AND OBSERVATIONS NECESSARY TO SATISFY ITSELF OF THE CONDITION OF THE PREMISES. TENANT AGREES IT IS RELYING SOLELY ON SUCH INDEPENDENT INSPECTION, TESTS, INVESTIGATIONS AND OBSERVATIONS IN MAKING THIS PERMIT. TENANT ALSO ACKNOWLEDGES THAT THE PREMISES ARE IN THE CONDITION CALLED FOR BY THIS PERMIT, THAT DISTRICT HAS PERFORMED ALL WORK WITH RESPECT TO PREMISES AND THAT TENANT DOES NOT HOLD DISTRICT RESPONSIBLE FOR ANY DEFECTS IN THE PREMISES. TENANT FURTHERMORE ACCEPTS AND SHALL BE RESPONSIBLE FOR ANY RISK OF HARM TO ANY PERSON AND PROPERTY, INCLUDING WITHOUT LIMITATION EMPLOYEES OF TENANT, FROM ANY LATENT DEFECTS IN THE PREMISES. Initial: District Tlynant 25. WARRANTIES -GUARANTEES: District 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 above -described premises, including the physical condition thereof, or any condition which may affect the above -described premises; and it is agreed that District will not be responsible for any loss or damage or costs which may be incurred by Tenant by reason of any such condition or conditions. 26. ATTORNEY'S FEES: In the event any suit is 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 District 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's fees and costs of suit. 27. HAZARDOUS MATERIALS: Tenant shall comply with all laws regarding hazardous substances, materials or wastes, or petroleum products or fraction thereof (herein collectively referred to as "Contaminants") relative to occupancy and use of the premises. Tenant shall be liable and responsible for any Contaminants arising out of the occupancy or use of the premises by Tenant. Such liability and responsibility shall include, but not be limited to, (i) removal from the premises any such Contaminants; (ii) removal from any area outside the premises, including but not limited to surface and groundwater, any such Contaminants generated as part of the operations on the premises; (iii) damages to persons, property and the premises; (iv) all claims resulting from those damages; (v) fines imposed by any governmental agency, and (vi) any other liability as provided by law. Tenant shall defend, indemnify and hold harmless the District, its officials, officers, agents, and employees from any and all such 8 responsibilities, damages, claims, fines, liabilities, including without limitation any costs, expenses and attorney's fees therefor. District shall have a direct right of action against Tenant even if no third party has asserted a claim. Furthermore, District shall have the right to assign said indemnity. If Tenant has in the past or continues to use, dispose, generate, or store Contaminants on the premises, District, or its designated representatives, at District's sole discretion, may at any time during the term of this Permit, enter upon the premises and make any inspections, tests or measurements District deems necessary in order to determine if a release of Contaminants has occurred. District shall give Tenant a minimum of twenty- four (24) hours' notice in writing prior to conducting any inspections or tests, unless, in District's sole judgment, circumstances require otherwise, and such tests shall be conducted in a manner so as to attempt to minimize any inconvenience and disruption to Tenant's operations. If such tests indicate a release of Contaminants, then District, at District's sole discretion, may require Tenant, at Tenant's sole expense, and at any time during the term of this Permit, to have tests for such Contaminants conducted by a qualified party or parties on the premises. If District has reason to believe that any Contaminants that originated from a release on the premises have contaminated any area outside the premises, including but not limited to surface and groundwater, then District, at District's sole discretion, may require Tenant, at Tenant's sole expense, and at any time during the term of this Permit, to have tests for such Contaminants conducted by a qualified party or parties on said area outside the premises. The tests conducted by Tenant's qualified party shall include, but not be limited to, applicable comprehensive soil, emission, or groundwater sampling test or other procedures to determine any actual or possible contamination. Tenant shall expeditiously, but no longer than thirty (30) days after District's request for such tests, furnish to District the results of said tests, sampling plans, and analysis thereof identifying any Contaminants which exceed then applicable levels permitted by federal, state, or local laws. Tenant shall report such contamination to the District within seventy-two (72) hours and shall diligently proceed to identify the extent of contamination, how it will be remediated, when it will be remediated, by whom, and the cost of such remediation. 28. UNDERGROUND STORAGE TANKS: In the event any underground storage tanks are located on the premises or hereinafter placed on the premises by any party during the term or extension of this Permit, Tenant shall be responsible for tank monitoring of all such underground storage tanks as required by the County of San Diego Hazardous Material Management Division (HMMD) or any other responsible agency. Tenant further agrees to take responsibility for reporting unauthorized releases to HMMD and the District within twenty-four (24) hours of such unauthorized release. Tenant will be responsible for all fees and costs related to the unauthorized release of 9 Contaminants including but not limited to investigative, surface and groundwater cleanup, and expert and agency fees. Tenant shall maintain evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and property damage caused by a release from the underground tank system. Tenant further agrees to be responsible for maintenance and repair of the storage tanks, obtaining tank permits, filing a business plan with HMMD or other responsible agency and for paying underground storage tank fees, permit fees, and other regulatory agency fees relating to underground storage tanks. Tenant agrees to keep complete and accurate records on the 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 underground storage tanks, and any unauthorized releases of Contaminants and make such records available for District or responsible agency inspection. Tenant further agrees to include a copy of Health and Safety Code, Chapter 6.7, Section 25299, as part of any agreement between Tenant and any Operator of such underground storage tanks. Furthermore, Tenant shall be responsible for compliance with all other laws and regulations presently existing or hereinafter enacted applicable to underground storage tanks, including without limitation any such laws and regulations which alter any of the above requirements. 29. ABOVEGROUND STORAGE TANKS: Tenant shall be responsible for any aboveground storage tanks on the premises. Tenant shall, in accordance with this Permit 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 laws and regulations. In addition, Tenant shall maintain and repair said tanks and conform and comply with all other applicable laws and regulations for aboveground storage tanks, including without limitation all of the requirements of Health & Safety Code, Sections 25270 through 25170.13 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, District, or responsible agency, to conduct periodic inspections and complying with valid orders of said Board, 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. Tenant shall be responsible for all costs associated with an unauthorized release from such tanks, including but not limited to, investigative, surface and groundwater cleanup, expert and agency fees. 10 30. NOTICES: Any notice or notices provided for by this Permit or by law to be given or served upon Tenant may be given or served by certified or registered letter addressed to Tenant at 140 East 12`h Street, Suite B, National City, California 91950- 3312, and deposited in the United States mail, or may be served personally upon said Tenant or any person hereafter authorized by it in writing to receive such notice; and that any notice or notices provided for by this Permit or by law to be served upon District may be given or served by certified or registered letter addressed to Executive Director of District at the Administrative Offices of the San Diego Unified Port District, Post Office Box 120488, San Diego, California 92112-0488 and deposited in the United States mail, or may be served personally upon said Executive Director or his duly authorized representative; and that any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the parties so served. 31. SECTION HEADINGS: The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision hereof. 32. SIGNATURE OF PARTIES: It is an express condition of this Permit that said Permit shall not be complete nor effective until signed by either the Executive Director or his authorized designee on behalf of District and by other party. Port Attorney SAN DIEGO UNIFIED PORT DISTRICT 7 AP- FjOVEQ AS TO FORM \ nudol� Hradedcy ---•-_ Sr Asst. City Attorney Doc#66974 By E. Daniel Strum Director. Real Estate COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By PRINT NAME: gnature NicK1114 cw - PRINT TITLE: 4.yD1r 11 -B3i: $I AUTI 32CROY 0 6 00ST' 028-015 IEM/14L AREA 020-012 M4v /D PEPPER PARK 028-009 sM I� I (S. MP IRRICATION asnycl 028-007 THE vAS11.4 CROUP \ i \ I \ 021-011 BON MRCP EAQIR \ I • • RAMP 529-001 1161T0C1 IMMEEWA'E RFSPO6E0.11Y SBEFIIBNEA RNER 11000 CONTROL CHANNEL 62 • EXHIBIT "A" J J028-012 0r"I"RE SWgW 61 MATCH UNE E29 028-010 RATIONAL C111' MAMA sR SEE DETAIL SHEET 103 57 p7 M