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HomeMy WebLinkAbout2005 CON San Diego Port District - Summer Concert at Pepper ParkAGREEMENT The parties to this Agreement are the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (District) and City of National City, a Municipal Corporation (Service Provider). Recitals: The District desires to enter into an Agreement for promotional services with Service Provider to promote the District at the "Summer Concert at Pepper Park" event. The Parties Agree: 1. TERM OF AGREEMENT: This Agreement shall commence upon July 1, 2005 and shall terminate on June 30, 2006 subject to earlier termination as provided below. 2. SCOPE OF SERVICES: Service Provider shall perform services for District in accordance with this Agreement, Scope of Services, attached hereto as Exhibit A and by this reference made a part hereof. Service Provider shall conduct those program activities budgeted and contained in Exhibit A. Each specific program activity shall be subject to prior approval of the District pursuant to the terms of Board of Port Commissioners Policy Number 025. Service Provider shall keep the Executive Director of the District or his designated representative informed of the progress of said services at all times. 3. PAYMENT TERMS: For performance of Promotional services rendered pursuant to this Agreement, District will pay Service Provider a fee based on the following, subject to the limitation of the maximum expenditure provided herein: a. Payment Documentation. Each month, as a prerequisite to payment for services, Service Provider shall invoice District for services performed and for reimbursable expenses authorized by this Agreement and incurred in the prior month, accompanied by such records and receipts as required, including progress reports as described in subparagraph (b) below. If payments are based on established milestones, then Service Provider shall invoice, as each milestone is completed, but not more often than once a month. Service Provider shall submit one (1) original and one (1) copy of each statement for payment in the format and containing the information specified in Exhibit A including the certification as follows: "I certify under penalty of perjury that the above statement is just and correct according to the terms of Document No. 48858, and that payment has not been received." b. Progress Documentation. Service Provider shall provide District progress reports in a format and on a schedule as Contract Administrator directs. Progress reports shall include a description of work completed, cumulative dollar costs incurred, anticipated work for the next reporting period, percentage of work complete, and the expected completion date for remaining work. The report shall identify problem areas and important issues that may affect project cost and/or schedule. The report shall present actual percent completion versus planned percent completion. c. Maximum Fee and Invoices. For Performance of promotional services District will pay Service Provider Twenty Two Thousand Five Hundred dollars ($22,500) and District In Kind Services not to exceed Two Thousand One Hundred and Fifty dollars ($2,150), for a maximum amount under the Agreement of Twenty Four Thousand Six Hundred and Fifty dollar ($24,650). Said expenditure shall include without limitation all sums, charges, reimbursements, costs and expenses provided for herein. Service Provider shall not be required to perform further services after said sum has been expended. Service Provider shall reference the document number of this agreement on invoices. Service Provider shall submit all invoices within 30 days of completion of work represented by the request and within 60 days of incurring costs to be reimbursed under the Agreement. Service Provider shall include all back-up documentation for requested reimbursables with the invoices. 4. SERVICE PROVIDER'S RECORDS: In accordance with generally accepted accounting principles, Service Provider shall maintain full and complete records of the cost of services performed under this Agreement. Such records shall be open to inspection of the District at all reasonable times in the City of San Diego and such records shall be kept for at least three years after the termination of this Agreement. Such records shall be maintained by Service Provider for a period of five (5) years after completion of services to be performed under this Agreement or until all disputes, appeals, litigation or claims arising from this Agreement have been resolved, whichever is later. Service Provider understands and agrees that District, at all times under this Agreement, has the right to review project documents and work in progress and to audit financial records, whether or not final, which Service Provider or anyone else associated with the work has prepared or which relate to the work which Service Provider is performing for District pursuant to this Agreement regardless of whether such records have previously been provided to District. Service Provider shall provide District at Service Provider's expense a copy of all such records within five (5) working days of a written request by District. District's right shall also include inspection at reasonable times of the Service Provider's office or facilities, which are engaged in the performance of services pursuant to this Agreement. Service Provider shall, at no cost to District furnish reasonable facilities and assistance for such review and audit. Service Provider's failure to provide the records within the time requested shall preclude Service Provider from receiving any payments due under this Agreement until such documents are provided. 5. SUBCONTRACTORS: It is agreed it may be necessary for Service Provider to subcontract for the performance of certain technical services or other services for Service Provider to perform and complete the required services. The Service Provider shall remain responsible to the District for any and all services and obligations required under this Agreement, whether performed by Service Provider or its subcontractors. Service Provider shall pay each subcontractor in the time periods required by law. Any subcontractors employed by Service Provider shall be independent contractors and not agents of the District. Service Provider shall insure that its subcontractors satisfy all substantive requirements for the work set forth by this Agreement, including insurance and indemnification. Service Provider shall also include a clause in its Agreements with subcontractors which reserves the right, during the performance of this Agreement and for a period of three years following termination of this Agreement, for a District representative to audit any cost, payment or settlement resulting from any items set forth in this Agreement. This clause shall also require subcontractors to retain all necessary records for three years. 6. SERVICE PROVIDER'S COMPLIANCE: In performance of this Agreement, Service Provider, its subcontractors and subcontractors, shall comply with the California Fair Employment and Housing Act and all other applicable federal, state, and local laws prohibiting discrimination, including without limitation, laws prohibiting discrimination because of race, color, national origin, sexual orientation, religion, age or sex or handicap. Service Provider shall comply with provisions of Labor Code Section 1720 as applicable. 7. INDEMNIFICATION FOR PROFESSIONAL SERVICES: Indemnification for Non - Professional Services: To the fullest extent provided by law with respect to all liability except liability for Professional Services, covered under Section 7.2, the Service Provider agrees to defend, indemnify, protect and hold harmless the District, its agents, officers and employees, from and against any claim, demand, action, proceeding, suit or liability for damages, costs (including reasonable attorneys' fees) or expenses for damages to property or the loss of use thereof or injuries or death to any person (including Service Provider's employees), caused by, arising out of or related to the performance of Service Provider, as provided in the Scope of Services, or failure to act by Service Provider, its officers, agents, subcontractors and employees. The Service Provider's duty to defend, indemnify, protect, and hold harmless shall not include any claims or liabilities arising from the active negligence, sole negligence or willful misconduct of the District, its agents, officers, or employees. The Service Provider further agrees that the indemnification, including the duty to defend the District, requires the Service Provider to pay reasonable attorneys' fees and costs the District incurs that are associated with enforcing the indemnification provision, and defending any claims, demands, or liabilities arising from the services of the Service Provider performed pursuant to this agreement. The District may, at its own election, conduct its defense, or participate in the defense of any claim demand related in any way to the agreement. If the District chooses as its own election to conduct its own defense, participate in its own defense or obtain independent legal counsel in defense of any claim, demand or liability related to Service Provider's Scope of Services, the Service Provider agrees to pay the reasonable value of attorneys' fees and all of the District's costs. Indemnification for Professional Services: To the fullest extent provided by law, the Service Provider agrees to defend, indemnify, protect and hold harmless the District, its agents, officers and employees from and against any and all claims, demands, liability for any damages, costs (including reasonable attorneys' fees and costs), or expenses, arising from the actions or omissions of the Service Provider as provided in the Scope of Services. The Service Provider's duty to defend, indemnify, protect, and hold harmless shall not include any claims or liabilities arising from the active negligence, sole negligence or willful misconduct of the District, its agents, officers, or employees. The Service Provider further agrees that the indemnification, including the duty to defend the District, requires the Service Provider to pay reasonable attorneys' fees and costs the District incurs that are associated with enforcing the indemnification provision, and defending any claims, demands, or liabilities arising from the services of the Service Provider performed pursuant to this agreement. The District may, at its own election, conduct its defense, or participate in the defense of any claim or demand related in any way to the agreement. If the District chooses as its own election to conduct its own defense, participate in its own defense or obtain independent legal counsel in defense of any claim, demand or liability related to the Scope of Services, the Service Provider agrees to pay the reasonable value of attorneys' fees and all of the District's costs associated with its defense. 8. INDEPENDENT ANALYSIS: Service Provider shall provide the services required by this Agreement and arrive at conclusions with respect to the rendition of information, advice or recommendations, independent of the control and direction of the District, other than normal contract monitoring provided, however, Service Provider shall possess no authority with respect to any District decision beyond rendition of such information, advice, or recommendations. 9. ASSIGNMENT: This is a professional services Agreement between the parties and Service Provider shall not assign or transfer voluntarily or involuntarily any of its rights, duties, or obligations under this Agreement without the express written consent of Executive Director (President/CEO) of District in each instance. 10. INSURANCE REQUIREMENTS: Insurance: The Service Provider agrees to procure and hold at all times during the Term of this Agreement, a commercial general liability policy covering any bodily injury, property damage, personal injury or advertising injury associated with all Marketing Services to be provided under this Agreement, with a per occurrence limit of One Million Dollars ($1,000,000), hereinafter the "Commercial General Liability Policy." This Commercial General Liability Policy shall include an endorsement that adds the District, its officers, employees and agents as additional insured. Proof of such insurance shall be found satisfactory to the District. The Service Provider may satisfy this requirement by providing evidence that it is lawfully self - insured. Special Instructions: A Certificate of Insurance in a form acceptable to the District, an exemplar of which is, hereto and incorporated herein as Exhibit B, evidencing the existence of the required insurance policies and original endorsements effecting coverage required shall be kept on file with the District. Mail two copies of the Certificate and Endorsements to: Audit & Risk Management Services San Diego Unified Port District P.O. Box 120488 San Diego, CA 92112-0488 Furnishing insurance specified herein by the District will in no way relieve or limit any responsibility or obligation imposed by the Agreement or otherwise on Service Provider or its subcontractors or sub -subcontractors. District shall reserve the right to obtain complete copies of any of the insurance policies required herein. 11. ACCURACY OF SERVICES: Service Provider shall be responsible for the technical accuracy of its services and documents resulting therefrom and District shall not be responsible for discovering deficiencies therein. Service Provider shall correct such deficiencies without additional compensation. Furthermore, Service Provider expressly agrees to reimburse District for any costs incurred as a result of such deficiencies. Service Provider shall make decisions and carry out its responsibilities hereunder in a timely manner and shall bear all costs incident thereto so as not to delay the District, the project, or any other person related to the project, including the General Contractor or its agents, employees, or subcontractors. 12. INDEPENDENT CONTRACTOR: Service Provider and any agent or employee of Service Provider shall act in an independent capacity and not as officers or employees of District. The District assumes no liability for the Service Provider's actions and performance, nor assumes responsibility for taxes, bonds, payments or other commitments, implied or explicit by or for the Service Provider. Service Provider shall not have authority to act as an agent on behalf of the District unless specifically authorized to do so in writing. Service Provider acknowledges that it is aware that because it is an independent contractor, District is making no deductions from its fee and is not contributing to any fund on its behalf. Service Provider disclaims the right to any fee or benefits except as expressly provided for in this Agreement. 13. ADVICE OF COUNSEL: The parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and that the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the parties hereto. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. 14. INDEPENDENT REVIEW: Each party hereto declares and represents that in entering into this Agreement it has relied and is relying solely upon its own judgment, belief and knowledge of the nature, extent, effect and consequence relating thereto. Each party further declares and represents that this Agreement is being made without reliance upon any statement or representation not contained herein of any other party, or any representative, agent or attorney of any other party. 15. INTEGRATION AND MODIFICATION: This Agreement contains the entire Agreement between the parties and supersedes all prior negotiations, discussion, obligations and rights of the parties in respect of each other regarding the subject matter of this Agreement. There is no other written or oral understanding between the parties. No modifications, amendment or alteration of this Agreement shall be valid unless it is in writing and signed by the parties hereto. 16. OWNERSHIP RECORDS: Any and all materials and documents, including without limitation drawings, specifications, computations, designs, plans, investigations and reports, prepared by Service Provider pursuant to this Agreement, shall be the property of District from the moment of their preparation and the Service Provider shall deliver such materials and documents to District at the District administrative office building whenever requested to do so by District. However, Service Provider shall have the right to make duplicate copies of such materials and documents for its own file, or other purposes as may be expressly authorized in writing by District. Said materials and documents prepared or acquired by Service Provider pursuant to this Agreement (including any duplicate copies kept by the Service Provider) shall not be shown to any other public or private person or entity, except as authorized by District. Service Provider shall not disclose to any other public or private person or entity any information regarding the activities of District, except as expressly authorized in writing by District. 17. TERMINATION: In addition to any other rights and remedies allowed by law, the Executive Director (President/CEO) of District may terminate this Agreement at any time with or without cause by giving 30 days written notice to Service Provider of such termination and specifying the effective date thereof. In that event, all finished or unfinished documents and other materials shall at the option of District be delivered by Service Provider to District at the District administration office building. Termination of this Agreement by Executive Director (President/CEO) as provided in this paragraph shall release District from any further fee or claim hereunder by Service Provider other than the fee earned for services which were performed prior to termination but not yet paid. Said fee shall be calculated and based on the schedule as provided in this Agreement. 18. DISPUTE RESOLUTION: If a dispute arises out of or relates to this Agreement, or the alleged breach thereof, and is not settled by direct negotiation or such other procedures as may be agreed, and if such dispute is not otherwise time barred, the parties agree to first try in good faith to settle the dispute amicably by mediation administered at San Diego, California, by the American Arbitration Association, or by such other provider as the parties may mutually select, prior to initiating any litigation or arbitration. Notice of any such dispute must be filed in writing with the other party within a reasonable time after the dispute has arisen. Any resultant Agreements shall be documented and may be used as the basis for an amendment or directive as appropriate. If mediation is unsuccessful in settling all disputes that are not otherwise time barred, and if both parties agree, any still unresolved disputes may be resolved by arbitration administered at San Diego, California, by the American Arbitration Association, or by such other provider as the parties may mutually select, provided, however, that the Arbitration Award shall be non- binding and advisory only. Any resultant Agreements shall be documented and may be used as the basis for an amendment or directive as appropriate. On demand of the arbitrator or any party to this Agreement, subcontractors and all parties bound by this arbitration provision agree to join in and become parties to the arbitration proceeding. The foregoing mediation and arbitration procedures notwithstanding, all claim filing requirements of the Agreement documents, the California Government Code, and otherwise, shall remain in full force and effect regardless of whether or not such dispute avoidance and resolution procedures have been implemented, and the time periods within which claims are to be filed or presented to the District Clerk as required by said Agreement, Government Code, and otherwise, shall not be waived, extended or tolled thereby. If a claim is not timely filed or presented, such claim shall be time barred and the above dispute avoidance and resolution procedures, whether or not implemented or then pending, shall likewise be time barred as to such claims. 19. PAYMENT BY DISTRICT: Payment by the District pursuant to this Agreement does not represent that the District has made a detailed examination, audit, or arithmetic verification of the documentation submitted for payment by the Service Provider, made an exhaustive inspection to check the quality or quantity of the services performed by the Service Provider, made an examination to ascertain how or for what purpose the Service Provider has used money previously paid on account by the District, or constitute a waiver of claims against the Service Provider by the District. The District may in its sole discretion withhold payments or seek reimbursement from the Service Provider for expenses, miscellaneous charges, or other liabilities or increased costs incurred or anticipated by the District which are the fault of or as result of work performed or negligent conduct by or on behalf of the Service Provider. Upon five day written notice to the Service Provider, the District shall have the right to estimate the amount of expenses, miscellaneous charges, or other liabilities or increased costs and to cause the Service Provider to pay the same; and the amount due the Service Provider under this Agreement or the whole or so much of the money due or to become due to the Service Provider under this Agreement as may be considered reasonably necessary by the District shall be retained by the District until such expenses, miscellaneous charges, or other liabilities or increased costs shall have been corrected or otherwise disposed of by the Service Provider at no expense to the District. If such expenses, miscellaneous charges, or other liabilities or increased costs are not corrected or otherwise disposed of at no expense to the District prior to completion date of the Agreement, the District is authorized to pay for such expenses, miscellaneous charges, or other liabilities or increased costs from the amounts retained as outlined above or to seek reimbursement of same from the Service Provider. It is the express intent of the parties to this Agreement to protect the District from loss because of conduct by or on behalf of the Service Provider. 20. CAPTIONS: The captions by which the paragraphs of this Agreement are identified are for convenience only and shall have no effect upon its interpretation. 21. EXECUTIVE DIRECTOR'S SIGNATURE: It is an express condition of this Agreement that said Agreement shall not be complete nor effective until signed by either the Executive Director (President/CEO) or authorized designee on behalf of the District and by the other party. DATED: , 20. PORT ATTORNEY B DEPUTY PORT ATTO ; cY DOCS #140891 APPROVED AS TO FORM George H. Eiser, III City Attorney SAN DIEGO UNIFIED PORT DISTRICT By: CITY OF NATIONAL CITY By: Nic nzun a, Mayor EXHIBIT A Scope of Services The City of National City shall provide all required functions and activities to conduct a free outdoor concert at Pepper Park in National City as follows: 1. City shall retain the services of the National City Community Concert Band, Obsesion Latina and Novamenco musical groups to provide a concert. 2. City shall provide these functions and activities for the event: A. Required police services for traffic and crowd control B. Portable toilets for the public C. Free shuttle bus service D. VIP seating for up to 50 dignitaries E. Sound System F. Stage platforms G. Portable Lighting H. Portable dance floor I. Signage J. Cabaret tables & seating K. Decorations L. Staff support M. Publicity 3. The Port District has agreed to provide additional trash receptacles, a portable stage, generator, restroom supplies, assist in preparing the park for the event (e.g. lawn mowing) and providing park cleanup after the event. 4. National City Transit to provide a bus shuttle to assist transporting participants to the concert from the National City Senior Center and other designated sites. 5. City shall provide promotions and media exposure for the event identifying the San Diego Unified Port District as a co-sponsor of the event in an amount not to exceed $22,500. Publicity shall include: A. Preparation and distribution of press releases a•nd public service announcements and feature articles. B. Contact with local media providers to encourage promotion by public service announcements and feature articles. C. Design, printing and distribution of event flyers at locations throughout the area including prominent placement at all City facilities and distribution to key commercial and civic locations. D. Purchase 2 banners to place across National City Boulevard and the second banner to be placed on Highland Avenue. E. Design, printing and distribution of event programs to be distributed at the concert. F. Announcement in the City newsletter which is mailed to all City businesses and residents. G. Announcement in Community Services Department brochures. H. Individually mailed announcements to all residents signed up in our Neighborhood Council program. I. Event advertising on the electronic message signs adjacent to the freeways within National City. J. Encouragement of announcements regarding the concert at various civic meetings such as Chamber of Commerce, Lions Club, Kiwanis, etc. K. Use of City email system to distribute concert information L. Use of the City's website to announce the concert over the net M. Use of Neighborhood Council staff to distribute concert information to residents/businesses. EXHIBIT "A" . uw.c v1 V QIL1 — r L/1 L JCI VIL.C, Use this table to determine the value of Port services needed to support the event or program.1-1— you have questions or need assistance in completing this table, please call (619) 686-6222. Item Unit Cost Units Requested Cost Stage $1,100 1 -$ 1,100 Generator $300 $ 300 Harbor Police Officer $107/Hour $ Traffic Enforcement Officer $85/Hour $ General Services Worker $85/Hour $ Waiver of Park Fees * Attendance of 99 or Tess Attendance of 100-2499 Attendance of 2500-29,999 Attendance of 30,000 + *Based on projected attendance; does not include damage deposit, which cannot be waived. $250 flat fee $1.50/person $1.35/person $1.05/person $ 750 Total $ 2,150 Port of San Diego Financial Assistance Program 2005-2006 Application 5 Flnarlriai decicf-n,-o nS nc nncr .0 nne.ne EXHBIT B SAN DIEGO UNIFIED PORT DISTRICT CERTIFICATE OF INSURANCE ONLY THIS CERTIFICATE OF INSURANCE WILL BE ACCEPTED By signing this form, the authorized agent or broker certifies the following: (1) The Policy or Policies described below have been issued by the noted Insurer(s) [Insurance Company(ies)] to the Insured and is (are) in force at this time. (2) As required in the Insured's agreement(s) with the Authority, the policies include, or have been endorsed to include, the coverages or conditions of coverage noted on page 2 of this certificate. (3) Signed copies of all endorsements issued to effect require coverages or conditions of coverage are attached to this certificate. Return this form to: San Diego Unified Port District Audit & Risk Management P. O. Box 120488, San Diego, CA 92112-0488 (619) 686-6432; (619) 686-6424 (Fax) Name and Address of Insured (Contractor or Vendor) SDUPD Contract Number This certificate applies to all connection with all agreements operations of named insureds property in between the District and Insured. CO LTR TYPE OF INSURANCE POLICY NO. DATES LIMITS Commercial General Liability ❑ Occurrence Form ❑ Claims -made Form Retro Date Commencement Date: Expiration Date: Each Occurrence: $ General Aggregate: $ Liquor Liability Deductible/SIR: $ Commercial Automobile Liability ❑ All Autos ❑ Owned Autos ❑ Non -Owned & Hired Autos Commencement Date: Expiration Date: Each Occurrence: $ Workers Compensation —Statutory Employer's Liability Commencement Date: Expiration Date: E.L. Each Accident $ E.L. Disease Each Employee $ E.L. Disease Policy Limit $ Professional Liability ❑ Claims Made Retro-Active Date Commencement Date: Expiration Date: Each Claim $ CO LTR COMPANIES AFFORDING COVERAGE BEST'S RATING A B C D A. M. Best Financial Ratings of Insurance Companies Affording Coverage Must be A- VII or Better unless Approved in Writing by the District. Name and Address of Authorized Agent(s) or Broker(s) E-Mail Address: Phone: Fax Number: Signature of Authorized Agent(s) or Broker(s) Date: SAN DIEGO UNIFIED PORT DISTRICT ENDORSEMENT NO. REQUIRED INSURANCE ENDORSEMENT EFFECTIVE DATE POLICY NO. NAMED INSURED: GENERAL DESCRIPTION OF AGREEMENT(S) AND/OR ACTIVITY(IES): All written agreements, contracts, and leases with the San Diego Unified Port District and/or any and all activities or work performed on District owned premesis. Notwithstanding any inconsistent statement in the policy to which this endorsement is attached or in any endorsement now or hereafter attached thereto, it is agreed as follows: 1. The San Diego Unified Port District, its officers, agents, and employees are additional insureds in relation to those operations, uses, occupations, acts, and activities described generally above, including activities of the named insured, its officers, agents, employees or invitees, or activities performed on behalf of the named insured. 2. Insurance under the policy(ies) listed on this endorsement is primary and no other insurance or self - insured retention carried by the San Diego Unified Port District will be called upon to contribute to a Toss covered by insurance for the named insured. 3. The policy(ies) listed on this endorsement will apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. 4. As respects the policy(ies) listed on this endorsement, with the exception of cancellation due to nonpayment of premium, thirty (30) days written notice by certified mail, return receipt requested, will be given to the San Diego Unified Port District prior to the effective date of cancellation, change in coverage, reduction of limits or non -renewal. In the event of cancellation due to nonpayment of premium, ten (10) days written notice shall be given. Except as stated above, and not in conflict with this endorsement, nothing contained herein shall be held to waive, alter or extend any of the limits, agreements or exclusions of the policy(ies) to which this endorsement applies. (NAME OF INSURANCE COMPANY) (SIGNATURE OF INSURANCE COMPANY AUTHORIZED REPRESENTATIVE) MAIL THIS ENDORSEMENT AND NOTICES OF CANCELLATION, LIMIT REDUCTIONS, AND CHANGES IN COVERAGE TO: San Diego Unified Port District Audit & Risk Management P.O. Box 120488 San Diego, CA 92112-0488 City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE August 2, 2005 AGENDA ITEM NO. 15 ITEM TITLE Resolution of the City Council of the City of National City Authorizing the Mayor to Execute an Agreement with the Unified Port of San Diego on a Reimbursable Basis Not to Exceed $22,500 for a Musical Concert Program to be Held at Pepper Park on Port of San Diego Property PREPARED BY DEPARTMENT Leslie Deese., Community Services EXPLANATION Phone: (619) 336-4242 This item authorizes National City to enter into an Agreement with the San Diego Unified Port District for a musical concert program to be held at Pepper Park on September 10, 2005 on a reimbursable basis not to exceed $22,500. This year's concert program will include select musical performances by "NovaMenco" one of the world's best new flamenco bands, "Obsesion Latina" San Diego's hottest Latin jazz ensembles, and National City's own much -loved "Community Concert Band". Community Services staff will work with the performers and the San Diego Unified Port District to coordinate the event. Environmental Review n N,+A Financial Statement $22,500 will be funded by the Port of San Diego. National City supported activities of approximately $2,000 will be funded from Non -Departmental Governmental Purposes. Account No. 001-409-000-21 STAFF RECOMMENDATION Adopt the Resolution BOARD / COMMISSION RECOMMENDATION N/A toc- ATTACHMENTS ( Listed Below 1. Port District Agreement 2. Resolution Resolution No. A-200 (9/80) RESOLUTION NO. 2005 — 162 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT ON A REIMBURSABLE BASIS NOT TO EXCEED $22,500 FOR A MUSICAL CONCERT PROGRAM TO BE HELD AT PEPPER PARK WHEREAS, the City desires the use of Pepper Park for a musical concert program to be held on September 10, 2005. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute on behalf of the City of National City an Agreement on a reimbursable basis not to exceed $22,500 with the Unified Port District of San Diego for a musical concert program to be held at Pepper Park on September 10, 2005. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 2nd day of August, 2005. Nick Inzunza, Mayor ATTEST: Michael R. DaIIa, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney DR R F AGREEMENT The parties to this Agreement are the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (District) and [INSERT NAME OF COMPANY], [insert type of business entity and state of registration if applicable] (*Consultant/Service Provider). Recitals: The District desires to enter into an Agreement with * for [insert text]. The Parties Agree: 1. TERM OF AGREEMENT: This Agreement shall commence upon and shall terminate on subject to earlier termination as provided below. 2. SCOPE OF SERVICES: shall perform services for District in accordance with this Agreement and the Scope of Professional Services, dated , attached hereto as Exhibit and by this reference made a part hereof. * shall perform and compiete the required services in said Scope of Professional Services within the dates set forth in said scope. * shall keep the of the District or his designated representative informed of the progress of said services at all times. * expressly agrees that all documents prepared under its direction, pursuant to this Agreement have been thoroughly reviewed and checked for, among other things, integration with all other documents, consistency, thoroughness, clarity, and cohesiveness. 3. PAYMENT TERMS: For performance of services rendered pursuant to this Agreement, District will pay * a fee based on the following, subject to the limitation of the maximum expenditure provided herein: a. [Refer to Appendix F of the Manua/ for appropriate payment terms] DOCS #22753 REV. 08/18/03 Page 1 of b. Payment Documentation. Each month, as a prerequisite to payment for services, * shall invoice District for services performed and for reimbursable expenses authorized by this Agreement and incurred in the prior month, accompanied by such records and receipts as required, including progress reports as described in subparagraph (c) below. If payments are based on established milestones, then * shall invoice as each milestone is completed, but not more often than once a month. * shall submit one (1) original and one (1) copy of each statement for payment in the format and containing the information specified in Exhibit including the certification as follows: "I certify under penalty of perjury that the above statement is just and correct according to the terms of Document No. , and that payment has not been received." c. Progress Documentation. * shall provide District progress reports in a format and on a schedule as directs. Progress reports shall include a description of work completed, cumulative dollar costs incurred, anticipated work for the next reporting period, percentage of work complete, and the expected completion date for remaining work. The report shall identify problem areas and important issues that may affect project cost and/or schedule. The report shall present actual percent completion versus planned percent completion. d. Maximum Fee and invoices. The maximum expenditure under this agreement shall not exceed ($). Said expenditure shall include without limitation all sums, charges, reimbursements, costs and expenses provided for herein. * shall not be required to perform further services after said sum has been expended. * shall reference the document number of this agreement on invoices. * shall submit all invoices within 30 days of completion of work represented by the request and within 60 days of incurring costs to be reimbursed DOCS #22753 REV. 08/18/03 Page 2 of under the agreement. * shall include all back-up documentation for requested reimbursables with the invoices. [Or expenses are to be authorized separately, paragraph should read as follows.] Maximum Fee and Invoices. The maximum fee expenditure under this agreement shall not exceed ($), the maximum approved expense expenditure shall not exceed ($), for a total maximum expenditure not to exceed ($). Said maximum expenditure shall include without limitation all sums, charges, reimbursements, costs and expenses provided fore herein. * shall not be required to perform further services after said sum has been expended. * shall reference the document number of the agreement of invoices. * shall submit all invoices within 30 days of completion of work represented by the request and within 60 days of incurring costs to be reimbursed under the agreement. * shall include all back-up documentation for requested reimbursables with the invoices. 4. *'S RECORDS: In accordance with generally accepted accounting principles, * shall maintain full and complete records of the cost of services performed under this Agreement. Such records shall be open to inspection of the District at all reasonable times in the City of San Diego and such records shall be kept for at least three years after the termination of this Agreement. Such records shall be maintained by * for a period of three (3) years after completion of services to be performed under this Agreement or until all disputes, appeals, litigation or claims arising from this Agreement have been resolved, whichever is later. * understands and agrees that District, at all times under this Agreement, has the right to review project documents and work in progress and to audit financial records, whether or not final, which * or anyone else associated with the work has prepared or DOCS #22753 REV. 08/18/03 Page 3 of which relate to the work which * is performing for District pursuant to this Agreement regardless of whether such records have previously been provided to District. * shall provide District at *'s expense a copy of all such records within five (5) working days of a written request by District. District's right shall also include inspection at reasonable times of the *'s office or facilities which are engaged in the performance of services pursuant to this Agreement. * shall, at no cost to District furnish reasonable facilities and assistance for such review and audit. *'s failure to provide the records within the time requested shall preclude * from receiving any payments due under this Agreement until such documents are provided. 5. SUBCONSULTANTS: It is agreed it may be necessary for * to subcontract for the performance of certain technical services or other services for * to perform and complete the required services; provided, however, all subconsuitants [other than those cited in (a) through ( ) below] shall be subject to prior written approval by the District. The * shall remain responsible to the District for any and all services and obligations required under this Agreement, whether performed by * or its subconsultants. * shall pay each subconsultant in the time periods required by law. Any subconsultants employed by * shall be independent contractors and not agents of the District. * shall insure that its subconsultants satisfy all substantive requirements for the work set forth by this Agreement, including insurance and indemnification. a. It is agreed that for will provide professional services b. It is agreed that for will provide professional services * shall also include a clause in its Agreements with subconsultants which reserves the right, during the performance of this Agreement and for a period of three years following termination of this Agreement, for a District representative to audit any cost, payment or settlement resulting from any items set forth in this Agreement. This clause shall also require subconsultants to retain all necessary records for three years. DOCS #22753 REV. 08/18/03 Page 4 of 6. *'S COMPLIANCE: In performance of this Agreement, Consultant and Sub- Consultant shall comply with the California Fair Employment and Housing Act and all other applicable federal, state, and local laws prohibiting discrimination, including without limitation, laws prohibiting discrimination because of race, color, national origin, sexual orientation, religion, age or sex or handicap. Service Provider shall comply with provisions or handicap, including but not limited to the prevailing wage provisions of the Labor Code, and the Political Reform Act provisions of the Government Code, as applicable. 7. INDEPENDENT ANALYSIS: * shall provide the services required by this Agreement and arrive at conclusions with respect to the rendition of information, advice or recommendations, independent of the control and direction of the District, other than normal contract monitoring. provided, however, * shall possess no authority with respect to any District decision beyond rendition of such information, advice, or recommendations. B ASSIGNMENT: This is a professional services Agreement between the parties and * shall not assign or transfer voluntarily or involuntarily any of its rights, duties, or obligations under this Agreement without the express written consent of Executive Director (President/CEO) of District in each instance. 9. INDEMNIFICATION: a. Indemnification for Non -Professional Services: To the fullest extent provided by law with respect to all liability except liability for Professional Services, covered under Section 9(b), the ***** agrees to defend, indemnify, protect and hold harmless the District, its agents, officers and employees, from and against any claim, demand, action, proceeding, suit or liability for damages, costs (including reasonable attorneys' fees) or expenses for damages to property or the loss of use thereof or injuries or death to any person (including ****'s employees), caused by, arising out of or related to the performance of, *** as provided in the Scope of DOCS #22753 REV. 08/18/03 Page 5 of DOGS #22753 REV. 08/18/03 Professional Services, or failure to act by ***, its officers, agents, subcontractors and employees. The ***'s duty to defend, indemnify, protect, and hold harmless shall not include any claims or liabilities arising from the active negligence, sole negligence or willful misconduct of the District, its agents, officers, or employees. The 'further agrees that the indemnification, including the duty to defend the District, requires the' to pay reasonable attorneys' fees and costs the District incurs that are associated with enforcing the indemnification provision, and defending any claims, demands, or liabilities arising from the services of the *** performed pursuant to this agreement. The District may, at its own election, conduct its defense, or participate in the defense of any claim demand related in any way to the agreement. If the District chooses as its own election to conduct its own defense, participate in its own defense or obtain independent legal counsel in defense of any claim, demand or liability related to ***'s Scope of Professional Services, the" agrees to pay the reasonable value of attorneys' fees and all of the District's costs. Indemnification for Professional Services: To the fullest extent provided by law, the 'agrees to defend, indemnify, protect and hold harmless the District, its agents, officers and employees from and against any and all claims, demands, liability for any damages, costs (including reasonable attorneys' fees and costs), or expenses, arising from � the actions or omissions of the *** as provided in the Scope of Professional Services. The ***'s duty to defend, indemnify, protect, and hold harmless shall not include any claims or liabilities arising from the active negligence, sole negligence or willful misconduct of the District, its agents, officers, or employees. The *** further agrees that the indemnification, including the duty to defend the District, requires the *** to pay reasonable attorneys' fees and costs the District incurs that are associated with enforcing the Page 6 of indemnification provision, and defending any claims, demands, or liabilities arising from the services of the *'F' performed pursuant to this agreement. The District may, at its own election, conduct its defense, or participate in the defense of any claim or demand related in any way to the agreement. If the District chooses as its own election to conduct its own defense, participate in its own defense or obtain independent legal counsel in defense of any claim, demand or liability related to the Scope of Professional Services, the *** agrees to pay the reasonable value of attorneys' fees and all of the District's costs associated with its defense. 10. INSURANCE REQUIREMENTS: * shall at all times during the term of this Agreement maintain, at its expense, the following minimum levels and types of insurance: a. Commercial General Liability (including, without limitation, Contractual Liability, Personal and Advertising Injury, and Products/Completed Operations coverages written on "occurrence," not "claims made" basis): $2,000,000 Combined Single Limit. 1. The deductible or self -insured retention on this Commercial General Liability shall not exceed $5,000 unless District has approved of a higher deductible or self -insured retention in writing. 2. The Commercial General Liability policy shall be endorsed to include the District, its agents, officers and employees as additional insureds in the form as required by the District. An exemplar endorsement is attached. 3. The coverage provided to the District, as an additional insured, shall be primary. b. Commercial Automobile Liability for Owned, Non -Owned, or Hired Automobiles written on "occurrence" basis: $1,000,000 combined single limit for bodily injury and property damage. DOCS #22753 REV. 08/18/03 Page 7 of c. Worker's Compensation in statutory required limits and Employer's Liability in an amount of not less than $1,000,000. This policy shall be endorsed to include a waiver of subrogation endorsement. d. If professional services are provided to District under this agreement, Professional Liability Insurance in the amount of $1,000,000 per claim and $1,000,000 aggregate. 1. At the end of the contract period, *shall maintain, at its own expense, continued Professional Liability Insurance for a period of not less than five (5) years, in an amount not less that the amount required pursuant to this agreement. 2. Alternately, if the existing Professional Liability Insurance is terminated during the above referenced five-year period, Contractor shall maintain at its own expense, "tail" coverage in the same minimum amount as set forth in this paragraph. All coverages under this section shall be effective as of the effective date of this Agreement or provide for a retroactive date of placement that coincides with the effective date of this agreement. *shall furnish District with certificates of insurance coverage for all the policies described above upon execution of this agreement and upon renewal of any of these policies. A Certificate of Insurance in the form acceptable to the District, an exemplar Certificate of Insurance is attached hereto as Exhibit " and made a part hereof, evidencing the existence of the necessary insurance policies and endorsements required shall be kept on file with the District. Except in the event of cancellation for non-payment of premium, in which case notice shall be 10 days, all such certificates shall indicate that the insurer must notify District in writing at least 30 days in advance of any change in, or cancellation of, coverage. Consultant shall also provide notice to District prior to cancellation of, or any change in, the stated coverages of insurance. The Certificate of Insurance must delineate the name of the insurance company affording coverage and the policy number(s) specifically referenced to each type of insurance, either on the fact of the certificate or on an attachment thereto. If an addendum setting • DOCS #22753 REV. 08/18/03 Page 8 of forth multiple insurance companies or underwriters is attached to the certificate of insurance, the addendum shall indicate the insurance carrier or underwriter who is the lead carrier and the applicable policy number for the CGL coverage. Special Instructions: A Certificate of insurance in a form acceptable to the District, an exemplar of which is attached, evidencing the existence of the required insurance policies and original endorsements effecting coverage required shall be kept on file with the District. Mail the Certificate and Endorsements to: Audit & Risk Management Services San Diego Unified Port District P.O. Box 120488 San Diego, CA 92112-0488 Furnishing insurance specified herein by the District will in no way relieve or limit any responsibility or obligation imposed by the Agreement or otherwise on * or its subconsultants or sub-subconsultants. District shall reserve the right to obtain complete copies of any of the insurance policies required herein. 11. ACCURACY OF SERVICES: * shall be responsible for the technical accuracy of its services and documents resulting therefrom and District shall not be responsible for discovering deficiencies therein. * shall correct such deficiencies without additional compensation. Furthermore, *,expressly agrees to reimburse District for any costs incurred as a result of such deficiencies. * shall make decisions and carry out its responsibilities hereunder in a timely manner and shall bear all costs incident thereto so as not to delay the District, the project, or any other person related to the project, including the General Contractor or its agents, employees, or subcontractors. 12. INDEPENDENT CONTRACTOR: * and any agent or employee of * shall act in an independent capacity and not as officers or employees of District. The District assumes no liability for the *is actions and DOCS #22753 REV. 08/18/03 Page 9 of performance, nor assumes responsibility for taxes, bonds, payments or other commitments, implied or explicit by or for the *. * shall not have authority to act as an agent on behalf of the District unless specifically authorized to do so in writing. * acknowledges that it is aware that because it is an independent contractor, District is making no deductions from its fee and is not contributing to any fund on its behalf. * disclaims the right to any fee or benefits except as expressly provided for in this Agreement. 13. ADVICE OF COUNSEL: The parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and that the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the parties hereto. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. 14. INDEPENDENT REVIEW: Each party hereto declares and represents that in entering into this Agreement it has relied and is relying solely upon its own judgment, belief and knowledge of the nature, extent, effect and consequence relating thereto. Each party further declares and represents that this Agreement is being made without reliance upon any statement or representation not contained herein of any other party, or any representative, agent or attorney of any other party. 15. INTEGRATION AND MODIFICATION: This Agreement contains the entire Agreement between the parties and supersedes all prior negotiations, discussion, obligations and rights of the parties in respect of each other regarding the subject matter of this Agreement. There is no other written or oral understanding between the parties. No modifications, amendment or Page 10 of DOCS #22753 REV. 08/18/03 alteration of this Agreement shall be valid unless it is in writing and signed by the parties hereto. 16. OWNERSHIP RECORDS: Any and all materials and documents, including without limitation drawings, specifications, computations, designs, plans, investigations and reports, prepared by * pursuant to this Agreement, shall be the property of District from the moment of their preparation and the * shall deliver such materials and documents to District at the District administrative office building whenever requested to do so by District. However, * shall have the right to make duplicate copies of such materials and documents for its own file, or other purposes as may be expressly authorized in writing by District. Said materials and documents prepared or acquired by * pursuant to this Agreement (including any duplicate copies kept by the *) shall not be shown to any other public or private person or entity, except as authorized by District. * shall not disclose to any other public or private person or entity any information regarding the activities of District, except as expressly authorized in writing by District. 17. TERMINATION: In addition to any other rights and remedies allowed by law, the Executive Director (President/CEO) of District may terminate this Agreement at any time with or without cause by giving 30 days written notice to * of such termination and specifying the effective date thereof. In that event, all finished or unfinished documents and other materials shall at the option of District be delivered by * to District at the District administration office building. Termination of this Agreement by Executive Director (President/CEO) as provided in this paragraph shall release District from any further fee or claim hereunder by * other than the fee earned for services which were performed prior to termination but not yet paid. Said fee shall be calculated and based on the schedule as provided in this Agreement. DOCS #22753 REV. 08/18/03 Page 11 of 18. DISPUTE RESOLUTION: If a dispute arises out of or relates to this Agreement, or the alleged breach thereof, and is not settled by direct negotiation or such other procedures as may be agreed, and if such dispute is not otherwise time barred, the parties agree to first try in good faith to settle the dispute amicably by mediation administered at San Diego, California, by the American Arbitration Association, or by such other provider as the parties may mutually select, prior to initiating any litigation or arbitration. Notice of any such dispute must be filed in writing with the other party within a reasonable time after the dispute has arisen. Any resultant Agreements shall be documented and may be used as the basis for an amendment or directive as appropriate. If mediation is unsuccessful in settling all disputes that are not otherwise time barred, and if both parties agree, any still unresolved disputes may be resolved by arbitration administered at San Diego, California, by the American Arbitration Association, or by such other provider as the parties may mutually select, provided, however, that the Arbitration Award shall be non -binding and advisory only. Any resultant Agreements shall be documented and may be used as the basis for an amendment or directive as appropriate. On demand of the arbitrator or any party to this Agreement, subconsultants and all parties bound by this arbitration provision agree to join in and become parties to the arbitration proceeding. The foregoing mediation and arbitration procedures notwithstanding, all claim filing requirements of the Agreement documents, the California Government Code, and otherwise, shall remain in full force and effect regardless of whether or not such dispute avoidance and resolution procedures have been implemented, and the time periods within which claims are to be filed or presented to the District Clerk as required by said Agreement, Government Code, and otherwise, shall not be waived, extended or tolled DOCS #22753 REV 08/18103 Page 12 of thereby. If a claim is not timely filed or presented, such claim shall be time barred and the above dispute avoidance and resolution procedures, whether or not implemented or then pending, shall likewise be time barred as to such claims. 19. PAYMENT BY DISTRICT: Payment by the District pursuant to this Agreement does not represent that the District has made a detailed examination, audit, or arithmetic verification of the documentation submitted for payment by the *, made an exhaustive inspection to check the quality or quantity of the services performed by the *, made an examination to ascertain how or for what purpose the * has used money previously paid on account by the District, or constitute a waiver of claims against the * by the District. The District may in its sole discretion withhold payments or seek reimbursement from the " for expenses, miscellaneous charges, or other liabilities or increased costs incurred or anticipated by the District which are the fault of or as result of work performed or negligent conduct by or on behalf of the *. Upon five day written notice to the *, the District shall have the right to estimate the amount of expenses, miscellaneous charges, or other liabilities or increased costs and to cause the * to pay the same; and the amount due the * under this Agreement or the whole or so much of the money due or to become due to the * under this Agreement as may be considered reasonably necessary by the District shall be retained by the District until such expenses, miscellaneous charges, or other liabilities or increased costs shall have been corrected or otherwise disposed of by the * at no expense to the District. If such expenses, miscellaneous charges, or other liabilities or increased costs are not corrected or otherwise disposed of at no expense to the District prior to completion date of the Agreement, the District is authorized to pay for such expenses, miscellaneous charges, or other liabilities or increased costs from the amounts retained as outlined above or to seek reimbursement of same from the *. It is the express intent of the parties to this Agreement to protect the District from loss because of conduct by or on behalf of the *. DOGS #22753 REV. 08/18/03 Page 13 of 20. CAPTIONS: The captions by which the paragraphs of this Agreement are identified are for convenience only and shall have no effect upon its interpretation. 21. EXECUTIVE DIRECTOR'S SIGNATURE: It is an express condition of this Agreement that said Agreement shall not be complete nor effective until signed by either the Executive Director (President/CEO) or authorized designee on behalf of the District and by the other party. DATED: , 20 . SAN DIEGO UNIFIED PORT DISTRICT By: PORT ATTORNEY By : By: DOGS #22753 REV. 08118/03 Page 14 of RESOLUTION NO. 2005 — 164 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT ON A REIMBURSABLE BASIS NOT TO EXCEED $22,500 FOR A MUSICAL CONCERT PROGRAM TO BE HELD AT PEPPER PARK WHEREAS, the City desires the use of Pepper Park for a musical concert program to be held on September 10, 2005. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute on behalf of the City of National City an Agreement on a reimbursable basis not to exceed $22,500 with the Unified Port District of San Diego for a musical concert program to be held at Pepper Park on September 10, 2005. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 2nd day of August, 2005. Nick Inzunza, Mayor ATTEST: te„,jain Mi ael R. Dalla, ity Clerk APPROVED AS TO FORM: aos�..•z George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on August 2, 2005, by the following vote, to -wit: Ayes: Councilmembers Morrison, Parra, Natividad, Zarate. Nays: None. Absent: Inzunza Abstain: None. AUTHENTICATED BY: NICK INZUNZA Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2005-164 of the City of National City, California, passed and adopted by the Council of said City on August 2, 2005. 4 City CIrk of the City of ation al City, California By: Deputy City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 1, 2005 Ms. Suzie Kipp Community Services San Diego Unified Port District 3165 Pacific Highway San Diego, CA 92101 Project: Agreement for a Musical Concert Program at Pepper Park in National City. Dear Ms. Kipp, On August 2, 2005, the City Council of the City of National City passed and adopted Resolution No. 2005-164, approving an agreement with the San Diego Unified Port District in the amount of $22,500 for a musical concert program at Pepper Park. We are pleased to enclose a copy of the Resolution, one original contract and one conformed copy of the contract. Please execute and return one copy of the contract to us for our files. Should you have any questions, please contact Ms. Leslie Deese, Community Services Director at (619) 336-4290. Sincerely, Michael R. Dalla City Clerk Enclosure cc: Community Services ® Recycled Paper Unified Port of San Diego September 14, 2005 Irma Acedo Recreation Superintendent City of National City 140 E. 12th Street National City, CA 91950 Dear Ms. Acedo: 3165 Pacific Highway, San Diego, CA 92101 P.O. Box 120488, San Diego, CA 92112-0488 619.686.6200 > www.portofsandiego.org VIA CERTIFIED MAIL Re: Temporary Use Permit covering 145,811 square feet of tideland area located at the southeast corner of 32nd Street and Tidelands Avenue in National City, California [Clerk's Document No. 49532] Enclosed is the executed Duplicate Original of the above -referenced document for your use of District tidelands. The document is for one -day on September 10, 2005 from 8:00 a.m. to 12:00 midnight. Your cooperation in this matter has been appreciated. Sincerely, Wend . Fan Asset Manager Maritime Properties Maritime Division Enclosure San DiegoorUJnified Port District San Diego Unit nrl Por;4s§ vocumey��� =iipC ffa�'' 2 2005 Office ct the District Clerk TEMPORARY USE PERMIT THIS PERMIT, granted this � day of S . tot-( , 20 - by the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, hereinafter called "District," to THE CITY OF NATIONAL CITY, a municipal corporation, hereinafter called "Permittee," WITNESSETH: District for the considerations hereinafter set forth, hereby grants to Permittee 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," Stets. 1962, 1st Ex. Sess., c. 67, as amended, which lands are generally described as follows: Approximately 145,811 square feet of land located at the southeast corner of 32nd Street and Tidelands Avenue in National City, California, as more particularly delineated on District Drawing No. 028-007, attached hereto as Exhibit "A" and by this reference made a part hereof. This Permit is granted upon the following terms and conditions: 1. The term of this Permit shall be for one day on the 10t" day of September, 2005, between the hours of 8:00 a.m. and 12:00 midnight, unless sooner terminated as herein provided. 2. As and for consideration, Permittee agrees to provide the services as described in Paragraph 3 herein for the benefit of the People of the State of California. 3. The above -described premises shall be used only and exclusively for the purpose of providing temporary vehicle parking for the National City Annual Music Concert at the adjacent Pepper Park to be held on September 10, 2005 and for no other purpose whatsoever without the prior written consent of the Executive Director of District in each instance. Permittee shall be responsible in providing lighting, security, parking and traffic control at the premises. 4. Permittee shall comply with all applicable laws, rules and regulations of District and other governmental entities. 1 DUPLICATE - ORIGINAL 5. Permittee shall keep the property and all equipment used in connection with this Permit in a clean, safe, sound and presentable condition at all times. 6. Permittee 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 Permittee's purposes and that no representations as to value or condition have been made by or on behalf of the District. Permittee agrees that it shall make no changes or alterations in the premises, nor make, erect, or install any machines, signs, or other improvements thereon without the consent in writing of the Executive Director of District. Permittee further agrees to provide proper containers for trash and to keep the premises free and clear of rubbish, debris, and litter at all times. 7. 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 District. All structures, buildings, installations, and improvements placed on the above -described premises by Permittee subsequent to the commencement date of the term of this Permit shall at the option of District be removed by Permittee at Permittee's expense within five (5) days after the expiration of the term of this Permit or sooner termination thereof. District may exercise said option as to any or all of the structures, buildings, installations, and improvements, either before or after the expiration or sooner termination of this Permit. If District exercises such option and Permittee fails to remove such structures, buildings, installations, and improvements within said ten five (5) days, District shall have the right to have such structures, buildings, installations, and improvements removed at the expense of Permittee. As to any or all structures, buildings, installations, and improvements owned by Permittee for which District does not exercise said option for removal, title thereto shall vest in District, without cost to District and without payment to Permittee. Machines, appliances, equipment, and trade fixtures of any kind hereafter placed on the above -described premises by Permittee are owned by and title thereto is vested in Permittee and shall be removed by Permittee within five (5) days after the expiration of the term of this Permit or sooner termination thereof; provided, however, Permittee agrees to repair any and all damage occasioned by the removal thereof. If any such machines, appliances, equipment, and trade fixtures are not removed within five (5) days after the termination of this Permit, the same may be considered abandoned and shall thereupon become the property of District without cost to District and without payment to Permittee, except that District shall have the right to have the same removed at the expense of Permittee. 8. Permittee hereby agrees that upon the expiration of this Permit or the sooner termination as herein provided, it will remove within ten (10) days all ships, vessels, barges, hulls, debris, surplus, and salvage materials from the area forming a part of or adjacent to 2 the above -described premises, so as to leave the same in as good condition as when first occupied by Permittee, subject to reasonable wear and tear; provided, however, that if any said ships, vessels, barges, hulls, debris, surplus, and salvage materials shall not be so removed within ten (10) days by Permittee, District may remove, sell, or destroy the same at the expense of Permittee; and Permittee hereby agrees to pay District the cost of such removal, sale, or destruction; or at the option of District, the title to said ships, vessels, barges, hulls, debris, surplus, and salvage materials not removed shall become the property of District. 9. This Permit may be canceled by Executive Director of District or his duly authorized representative or Permittee by the giving of twenty-four (24) hours' notice in writing to the other party. Such cancellation shall be without liability of any nature. 10. This Permit shall not be transferred or assigned. 11. Permittee 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 Agreement, or Permittee'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 Permittee indemnify and hold harmless District for any actions of Permittee or District, including duties that may be legally delegated to Permittee or 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 Permittee's use, occupancy, possession, or operation of the above -described Premises, or arising from any defect in any part of the above -described Premises. 12. Permittee shall not engage in any activity on property of District other than the activity for which this Permit is expressly issued. 13. Permittee shall maintain "OCCURRENCE" form Commercial General Liability Insurance covering premises and operations 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 suffered or alleged to be suffered by any person or persons whatsoever resulting directly or indirectly from any act or activities of Permittee, of any person acting for it or under its control or direction, or any person authorized by it to use the above -described 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 Permittee. Certificates in a form acceptable to District evidencing the existence of the necessary insurance policies, and original endorsements effecting coverage required by 3 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 Permittee'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 Permittee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 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 Permittee 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 Permittee in writing of changes in the insurance requirements and, if Permittee 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 Permittee, and District shall be entitled to all legal remedies. The procuring of such required policies of insurance shall not be construed to limit Permittee's liability hereunder, nor to fulfill the indemnification provisions and requirements of this Permit. Notwithstanding said policies of insurance, Permittee shall be obligated for the full and total amount of any damage, injury, or loss caused by negligence or neglect connected with this Permit or with the use or occupancy of the above -described premises. Permittee may satisfy the requirements of this Section 13 by maintaining its lawful self - insured status during the term of this Permit. 14. 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 4 unlawful detention of property, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys fees and costs of suit. 15. Permittee shall comply with all requirements and directives of the Executive Director of District. 16. By signing this Permit, Permittee 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. Permittee agrees it is relying solely on such independent inspection, tests, investigations and observations in making this Permit. Permittee 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 Permittee does not hold District responsible for any defects in the premises. Permittee furthermore accepts and shall be responsible for any risk of harm to any person and property, including without limitation employees of Permittee, from any latent defects in the premises. Port Attorney SAN DIEGO UNIFIED PORT DISTRICT By By Set( « L DIRK I. MATHIASEN Director, Maritime Operations and Properties Permittee hereby accepts this Permit and agrees to comply with all the terms and conditions thereof. THE CITY OF NATIONAL CITY Name: Title: CITY OF NATIONAL CITY Address: NICK INZUNZA, MAYOR 1243 National City Boulevard National City, CA 91950-4301 5 Li%1II;c7NAL M4ROl'7l� fig:62AriN4L DRAWN MICHAEL FOSTER SEE SHEET NO2 NOTE 1. PERMIT AREA SHOWN SHADED 2. BEARINGS AND DISTANCES ARE sow/AO BASED ON THE CALIFORNIA COORDINATE SYSTEM, ZONE 6, N.A.D. 83, EPOCH 1991.35. SAN DIEGO UNIFIED PORT DISTRICT WTT11IN CORPORATE LIMITS OF NATIONAL CITY HIBIT A DATE 27 JANUARY 2005 SCALE NO SCALE REF. SURVEY DRAWING NO. SHEET 10F 2 028-007 v ui 0 O 0 0 0 co N O 0 O 0 i CO O N O 41 w CC 0 027-003 THE PASHA GROUP PARCEL NO. 7 026-022 B.N.S.F. 028-013 P.O.C. 3"DIA. BRASS DISK MONUMENT STAMPED "SDUPD-020" AS SHOWN ON R.O.S. NO.16668 SAN DIEGO UNIFIED PORT DISTRICT WITHIN CORPORATE LMAITS OF NATIONAL CITY EXHI;IT` GRAPHIC SCALE: 0 25' 50' 100' DATE 27 JANUARY 2005 SCALE 1 "=100' REF. FIELD SURVEY DRAWNGSHEETZOF2_ 028-007