HomeMy WebLinkAbout2021 CON San Diego Unified Port District - Police, Fire, and Emergency Medical Services (2)AGREEMENT BETWEEN
SAN DIEGO UNIFIED PORT DISTRICT
and
CITY OF NATIONAL CITY
for
POLICE, FIRE, AND EMERGENCY MEDICAL SERVICES
AGREEMENT NO.
The parties to this Agreement are the SAN DIEGO UNIFIED PORT DISTRICT, a public
corporation ("District") and THE CITY OF NATIONAL CITY, a municipal corporation
("City"). The District and the City may each be referred to herein as a "Party" and
together as the "Parties."
RECITALS:
WHEREAS, the San Diego Unified Port District Act allows the District to contract with
the municipalities whose territorial limits are adjacent or contiguous to those of the
District for police, fire, and other services; and
WHEREAS, the District and the City desire to execute an Agreement for police, fire, and
emergency medical services on non -ad valorem tideland trust property located in the
City of National City; and
WHEREAS, the City has the capacity to provide police, fire, and emergency services to
said District property.
NOW THEREFORE, the Parties agree to the following:
1. SCOPE OF SERVICES. This Agreement covers reimbursement of the cost of
police, fire, and emergency medical (EMS) services to be provided by the City
upon the District's tidelands and property within the City's limits, which do not
generate ad valorem tax revenues, as depicted on Exhibit 1, Non -Tax Paying
Tidelands in the City of National City, incorporated by reference as though fully
set forth herein. Those properties include, but are not limited to, non -dedicated
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streets, parks and other open space, unleased developed properties, leased
properties wherein the lessee is not subject to ad valorem taxes (with the
exception of properties leased to the City), and unleased vacant land. Nothing
herein contained shall give the City the right to use or occupy any District real or
personal property, or to otherwise use the services of the District or its
employees. City shall provide police, fire and emergency medical services as
contained in the "Scope of Services" established as the baseline service level,
attached hereto as Exhibit 2 and incorporated by reference as though fully set
forth herein (collectively, the "Services"), as the same may be adjusted in
accordance with the terms of this Agreement. Services under this Agreement
shall be in furtherance of the San Diego Bay tideland trust for the
accommodation of commerce, navigation, fisheries, and recreation on said trust
tidelands for the benefit of all of the people of the State' of California.
2. TERM OF AGREEMENT. The term of this Agreement (the "Term") shall be
effective as of July 1, 2021 and shall terminate on June 30, 2030, subject to
earlier termination as provided below. For purposes of this Agreement, each
year beginning on July 1 and ending on June 30 of the following year shall be
referred to herein as a "Service Year."
3. COMPENSATION. For performance of Services, District shall compensate City
as follows:
a. Baseline Rate for Services Provided. Commencing on July 1, 2021,
District shall pay City $1,310,324 (the "Initial Baseline Rate") each Service
Year for Services until the Initial Baseline Rate is adjusted in accordance
with the terms of this Agreement. The Initial Baseline Rate, as adjusted in
accordance with the terms of this Agreement, shall be referred to herein
as the "Baseline Rate."
b. Periodic Baseline Rate Resets. The Baseline Rate shall be subject to
adjustment periodically on the following dates (each a "Baseline Reset
Date"):
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First Baseline Reset
Second Baseline Reset
July 1, 2022
July 1, 2025
No later than July 1, 2021 with respect to the first scheduled Baseline
Reset Date of July 1, 2022, and at least six (6) months before the second
scheduled Baseline Reset Date of July 1, 2025, the Parties shall meet and
confer regarding fair and appropriate cost and service standards and
commence good faith efforts to renegotiate the Baseline Rate and the
accompanying Scope of Services, taking into account the actual
documented costs of providing the Services and the results and findings of
any Performance Audit (as defined in Section 4.c below) performed prior
to, such time or completed at any time during such negotiations. Following
such discussions and negotiations, the Parties may jointly, or each
separately, present a new Baseline Rate (which shall include an updated
Scope of Services) to the Board of Port Commissioners (the "Board") for
approval in the Board's sole and absolute discretion; provided that, with
respect to the first Baseline Reset Date, the Parties agree to jointly, or
each separately, present a new Baseline Rate to the Board no later than
the December 14, 2021 Board meeting. Any Baseline Rate approved by
the Board pursuant to this Section 3.b may differ from a Baseline Rate
presented to the Board and may ultimately be an increase or a decrease
from the Baseline Rate previously in effect. If the Board fails to approve a
new Baseline Rate on or prior to a Baseline Reset Date, then the Baseline
Rate shall adjust pursuant to Section 3.c below, the Scope of Services
then in effect shall continue to be effective, and the Parties shall continue
to negotiate in good faith; provided that if the Board, despite the Parties'
good faith efforts and each Party's compliance with the terms of this
Section 3.b, fails to approve a new Baseline Rate on or before the date
that is six (6) months following a Baseline Reset Date, then, subject to the
second paragraph of Section 3.c below, either the Baseline Rate (as
adjusted and subject to further adjustment pursuant to Section 3.c below)
and the Scope of Services then in effect shall continue to apply until the
Parties are to again commence Baseline Rate negotiations in accordance
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with terms set forth above, or alternatively, either Party may terminate this
Agreement upon six (6) months' prior written notice in accordance with
Section 17 below. If a new Baseline Rate is approved by the Board, in its
sole and absolute discretion, on or before the date that is six (6) months
following a Baseline Reset Date, then (i) in the event that the updated
Scope of Services does not result in increased levels of Services 'as
compared to the levels of Services in effect prior to the applicable
Baseline Reset Date, then such new Baseline Rate (including the updated
Scope of Services) shall become effective as of such Baseline Reset
Date, or (ii) in the event that the updated Scope of Services results in
increased levels of Services as compared to the levels of Services in
effect prior to the applicable Baseline Reset Date, then such new Baseline
Rate shall become the new Baseline Rate (including the updated Scope of
Services) effective as of the first day of the quarter immediately following
the Parties reaching an agreement; provided that unless otherwise agreed
to by the Parties, a new 'Baseline Rate (and updated Scope of Services)
approved pursuant to this Section 3.b shall not become effective earlier
than the applicable Baseline Reset Date. Following any establishment of
a new Baseline Rate (and updated Scope of Services) pursuant :to the
previous sentence, the Baseline Rate shall be adjusted thereafter as
described in Section 3.c below.
Following any establishment of a new Baseline Rate as set forth in this
Section 3.b, the Parties shall execute a letter 'agreement to amend this
Agreement solely in order to document (i) the new Baseline Rate, (ii) the
updated Scope of Services, and (iii) the effective date of the new Baseline
Rate and updated Scope of Services.
c. Annual Baseline Rate Increases. Commencing on July 1, 2022 and on
each. July 1 thereafter during the Term, the Baseline Rate shall be
increased by three, percent (3%) (the "Annual Baseline Increase");
provided, however, the procedures and provisions set forth in Section 3.b
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above shall control with respect to the effective Baseline Rate (or any
adjustment thereof) on or following a Baseline Reset Date.
If the City provides the District with reasonable justification in writing that
the Baseline Rate (as adjusted pursuant to an Annual Baseline Increase,
distinguished from establishing a new Baseline Rate pursuant to Section
3.b above) is insufficient to cover the costs of the Services to be provided
pursuant to the then applicable Scope of Services, then the City shall have
the right to adjust the level of Services in accordance with the terms of
Section 3.f below; provided, however, that in no event (whether pursuant
to a Service level adjustment under Section 3.f or otherwise) shall
Services be adjusted to a level so that the value of such level of Services
is less than the corresponding Baseline Rate then in effect.
d. Events for Deferred Payments and Service Level Adjustments. The
Parties agree that by the exercise of due care and upon the occurrence of
certain unforeseeable events, the District may defer certain payments due
under this Agreement and/or the District or the City may adjust the level of
Services being provided by the City , or otherwise terminate the
Agreement consistent with Section 17 herein. Each of the following
events (each an "Adjustment Event") may justify Deferred Payments as
provided in Section 3.e below or a level of Service adjustment as provided
in Section 3.f below:
(1) Unanticipated events or needs that would require. District budget
cuts in the Service Year during which the events or need occur
and/or the Service Year immediately thereafter;
(2) Acts of God, civil unrest; fire or other casualty, acts of terrorism,
pandemics, and/or other force majeure type events beyond the
reasonable control of a Party;
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(3) Expenses associated with bad debt, benefit cost increases,
pollution remediation costs, judgements, and/or settlement costs;
(4) Unanticipated costs associated with regulatory requirements and/or
legal mandates; or
(4) A need by District to replenish operating reserves should reserves
fall below levels required by the thencurrent policies of the Board
of Port Commissioners.
e. Deferred Payments. Following the occurrence of one or more
Adjustment Events, the District may defer an amount equal to an Annual
Baseline Increase attributable to a given future Service Year or Services
Years (i.e., an amount equal to a three percent (3%) increase to the
Baseline Rate for the applicable Services Year(s)) by providing the City
with written notice no less than sixty (60) days prior to the applicable
Service Year (or the initial Service Year if the District is electing to defer
an amount attributable to multiple Service Years). Any Adjustment Event
may be used as a basis to defer an Annual Baseline Increase due for one
or more entire future Service Year(s); provided that in no event over the
Term may the District defer an Annual Baseline Increase(s) attributable to
more than five (5) Service Years on a cumulative basis. Any amount
deferred pursuant to this Section 3.e shall be referred to as a "Deferred
Payment". Any Deferred Payment(s) shall be repaid in the years following
the deferral based upon the length of the deferral period. For example, if
the District elects, at a given time, to defer the Annual Baseline Increase
due for one (1) Service Year, the associated Deferred Payment must be
repaid, in equal quarterly installments, during the Service Year following
the Service Year to which the Deferred Payment applies and at the same
time the District makes or would otherwise be obligated to make payments
pursuant to Section 3.g below for such following Service Year; or if the
District elects, at a given time, to defer the Annual Baseline Increases for
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three (3) Service Years, the associated Deferred Payment must be repaid,
in equal quarterly installments, during the three (3) Service Years following
the three (3) Service Years to which the Deferred Payment applies and at
the same time the District makes or would be obligated to make payments
pursuant to Section 3.g below. Subject to the limits set forth above, the
District may elect to defer Annual Baseline Increases in accordance with
the terms hereof on one or more occasions. No interest shall accrue and
be payable with respect to any Deferred Payment. The District's
obligation to repay any Deferred Payment in accordance with the terms of
this Section 3.e shall survive the expiration or -earlier termination of this
Agreement.
f. Service Level Adjustments. In the case of the District, following the
occurrence of one or more Adjustment Events, or in the case of the City,
following the occurrence of Adjustment Event (2) or pursuant to Section
3.c above, levels of Services may be reasonably reduced by either the
District or the City. Should either Party require a reduction to the level of
Services following an Adjustment Event applicable to such Party or, in the
case of the City, pursuant to Section 3.c as provided above, then such
Party shall notify the other Party of the request, the applicable Services to
be reduced, the length of the reduction, and an explanation for the same.
Within sixty (60) days of receiving or sending, as applicable, an
adjustment request, the City shall provide to District a detailed summary of
changes to the level of Services, the duration of such changes, and the
associated reduction in cost to the City (an "Adjustment Summary"). Prior
to an adjustment in Services becoming effective, an Adjustment Summary
shall be subject to the District's prior written approval, such approval not to
be unreasonably withheld, conditioned, or delayed. In connection with an
Adjustment Summary, if reduced levels of Services will result in a lower
cost to City to provide the Services, then amounts owed hereunder by the
District shall be reduced commensurate with the reduced levels of
Services. Upon the District's approval of any Adjustment Summary, (i) the
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g•
corresponding adjustments to the levels of Services and amounts due
hereunder shall immediately become effective and (ii) such adjustments
and, amounts shall be incorporated into a letter agreement to amend this
Agreement solely in order to document the adjustments.
Reimbursement Process. City shall submit written requests for
reimbursement to District for equal quarterly payments under this
Agreement. Such requests shall include amounts due for the Service
Year in question and, if applicable, any Deferred Payment or amounts due
pursuant to Section 16, below. Written requests shall be submitted: on a
quarterly basis, at the end of each fiscal quarter. District agrees to' make
reimbursement, payments to City within thirty (30) days of receipt of a
properly prepared request for reimbursement. Failure to make timely
demand for payment shall not limit City's right to payment or District's
obligation to pay.
4. . RECORDS
a. In accordance with generally accepted accounting principles, City shall
maintain full and complete records of the cost of Services performed
under this Agreement. Such documentation, if prepared and maintained
in the regular course of , business, is to include time cards, contracts,
receipts, original invoices, canceled checks, payroll documentation, calls
for service records, dispatch records, police and fire budget data, other
budget data used to calculate citywide overhead factors, periodic logs
maintained by police, fire, and EMS staff, and any other documentation,
information, and/or materials related to the Services (collectively, "Service
Records"). Such Service Records shall be open to inspection by District
at all reasonable times in the City and such records shall be kept for at
least three (3) years after the expiration or earlier termination of this
Agreement. Notwithstanding the foregoing, City will not be required to
provide Service Records that are protected by applicable law or judicial
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proceedings, or that contain personal confidential .information of City
employees or agents (such as personnel records).
b. Service Records shall be maintained by City 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.
c. City understands and agrees that District, at all times under this
Agreement and at District's cost and expense, has the right to review and
audit. Service Records and work in progress and, no more than once per
Service Year, to conduct a performance audit and service study (a
"Performance Audit") of all Service Records, whether or not final, which
City or anyone else associated with the Services has preparedor which
relate to the Services. which City is performing for District pursuant to this
Agreement regardless of whether such records have previously been
provided to District. When reasonably feasible, City shall provide District
at City's expense a copy of all such records within ten (10) working days
of a written request by District, unless the requested records are
voluminous in nature, in which case the City shall provide access to such
records for inspection at reasonable times at the City's office or facilities.
City shall cooperate fully and take all actions reasonably necessary to
assist the District in the completion of the Performance Audit, including the
disclosure of information relating to the cost, actual performance, and
accounting of the Services. District's right shall also include inspection at
reasonable times of the City's office or facilities, which are engaged in the
performance of Services pursuant to this Agreement. City shall, at no cost
to District, furnish reasonable facilities and assistance for such any review
and audit conducted hereunder. City's failure to provide the records within
the time requested shall preclude City from receiving any compensation
due under this Agreement until such documents are provided. In
connection with any Performance Audit, the District shall, in cooperation
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with the City, seek to establish reasonable metrics to measure the costs of
the Services for the Service Year that is the subject of the Performance
Audit and expected costs for the Service Years that follow.
5. CITY'S SUB -CONTRACTORS
a. It may be necessary for City to sub -contract for the performance of certain
technical services or other services for City to perform and complete the
required services; provided, however, the City shall notify the District of all
City's sub -contractors providing any services hereunder. The City shall
remain responsible to District for any and all services and obligations
required under this Agreement, whether performed by City or City's sub-
contractors. City shall compensate each City's sub -contractors in the time
periods required by law. Any City's sub -contractors employed by City
shall be independent and not agents of District. City shall ensure that
City's sub -contractors satisfy all substantive requirements for the work set
forth by this Agreement, including insurance and indemnification.
b. City shall also endeavor to include a clause in its Agreements with City's
sub -contractors which reserves the right, during the performance of this
Agreement and for a period of three (3) years following termination of this
Agreement, for a District representative to audit any cost, compensation or
settlement resulting from any items set forth in this Agreement. This
clause shall also require City's sub -contractors to retain all necessary
records 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.
6. COMPLIANCE
a. In performance of this Agreement, City and City's sub -contractors shall
comply with the California Fair Employment and Housing Act, the
American with Disabilities Act, and all other applicable federal, state, and
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local laws prohibiting discrimination, including without limitation, laws
prohibiting discrimination because of age, ancestry, color, creed, denial of
family and medical care leave, disability, marital status, medical condition,
national origin, .race, religion, sex, or sexual orientation. City shall comply
with the prevailing wage provisions of the Labor Code and any other
prevailing wage laws, and the Political Reform Act provisions of the
Government Code, as applicable.
b. City shall comply with all Federal, State, regional and local laws, and
district Ordinances and Regulations applicable to the performance of
services under this Agreement as exist now or as may be added or
amended.
7. INDEPENDENT ANALYSIS. City 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 District,
other than normal contract monitoring.
8. ASSIGNMENT. This is a personal services Agreement between the Parties and
neither Party shall not assign or transfer voluntarily or involuntarily any of its
rights, duties, or obligations under this Agreement without the express written
consent of the other Party hereto.
9. MUTUAL INDEMNITY
a. To the fullest extent provided by law, City agrees to defend, indemnify and
hold harmless the District, its agents, officers, employees, and
subcontractors (collectively, the "District Parties"), from and against any
claim, demand, action, proceeding, suit, liability, damage, cost (including
reasonable attorneys' fees) or expense, including but not limited to,
damage to property, the Toss or use thereof, or injury or death to any
person, including City's officers, agents, subcontractors, employees
(collectively "Claims"), caused by, arising out of, or related to the
performance of services by the City or its officers, agents, subcontractors,
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and/or employees (collectively, the "City Parties") as provided for in this
Agreement, or failure to act by any of the City Parties. The City's duty to
defend, indemnify, and hold harmless shall exclude any Claim to the
extent arising from the negligence or willful misconduct of any of the
District Parties.
b. To the fullest extent permitted by law, District agrees to defend, indemnify,
and hold harmless the City Parties from and against any Claims to the
extent arising from the negligence or willful misconduct of any of the
District Parties.
c. Each Party further agrees that its respective duty to indemnify and defend
as set forth in Sections 9.a. and 9.b above requires that District or City, as
applicable, pay all reasonable attorneys' fees and costs the indemnified
Party incurs associated with or related to enforcing the applicable
indemnification provisions and defending any Claim indemnified pursuant
to Section 9.a or 9.b above.
d. An indemnified Party may, at its own election, conduct its defense, or
participate in the defense of any Claim related in any way to this
Agreement. If an indemnified Party chooses at its own election to conduct
its own defense, participate in its own defense or obtain independent legal
counsel in defense of any indemnified Claim pursuant to Section 9.a or 9.b
above, the indemnifying Party agrees to pay all reasonable attorneys' fees
and all costs incurred by the indemnified Party.
e. Each of the Party's indemnification obligations set forth in this Section 9
shall survive the expiration or earlier termination of this Agreement.
10. INSURANCE REQUIREMENTS
a. City shall procure and maintain for the duration of the Agreement and for
five (5) years thereafter (or, if longer than five (5) years, for the then
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applicable statute of limitations for bodily injury and property damage
claims following the expiration or earlier termination of this Agreement),
insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the work
hereunder and the results of that work by the City, its agents,
representatives, employees, or subcontractors. City (and District unless
noted to only be applicable to the City) shall at all times during the Term
maintain, at its expense, the following minimum levels and types of
insurance:
(1) Commercial General Liability (including, without limitation,
Contractual Liability, Personal Injury, Advertising Injury, and
Products/Completed Operations) coverages, with coverage at least
as broad as Insurance Services Office Commercial General Liability
Coverage (occurrence Form CG 0001) with limits no less than one
million dollars ($1,000,000) per Occurrence and two million dollars
($2,000,000) Aggregate for bodily injury, personal injury and
property: damage.
(a) 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.
(b) In the case of the City, 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 (Exhibit 3, Certificate of Insurance, attached hereto
and incorporated herein).
(c) The coverage provided to the District, as an additional
insured, shall be primary and any insurance or self -
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insurance maintained by the District shall be excess of the
City's insurance and shall not contribute to it.
(d) The City's Commercial General Liability policy shall be
endorsed to include a waiver of transfer of rights of recovery
against the District ("Waiver of Subrogation").
(2) Commercial Automobile Liability (Owned, Scheduled, Non -Owned,
or Hired Automobiles) written at least as broad as Insurance
Services Office Form Number CA 0001 with limits of no less than
one million dollars ($1,000,000) combined single limit per accident
for bodily injury and property damage.
(3)
In the case of the City, Workers' Compensation, statutory limits, is
required of the City and all sub -consultants (or be a qualified self -
insured) under the applicable laws and in accordance with
"Workers' Compensation and Insurance Act", Division IV of the
Labor Code of the State of California and any Acts amendatory
thereof. Employer's Liability, in an amount of not less than one
million dollars ($1,000,000) each accident, $1,000,000 disease
policy limit and $1,000,000 disease each employee. This policy
shall be endorsed to include a waiver of subrogation endorsement,
where permitted by law.
(4) Umbrella or Excess Liability insurance with limits no less than one
million dollars ($1,000,000) per occurrence and aggregate. This
policy must provide excess insurance over the same terms and
conditions required above for the General Liability, Automobile
Liability and Employer's Liability policies.
b. City 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 a form
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acceptable to the District, an exemplar Certificate of Insurance is attached
as Exhibit 3 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 policies must
be endorsed so that the insurer(s) must notify the District in writing at least
30 days in advance of policy cancellation. City shall also provide notice to
District prior to cancellation of, or any change in, the stated coverages of
insurance.
c. 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 face of the certificate
or on an attachment thereto. If an addendum setting 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.
d. 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 City or City's sub -contractors or any tier of City's sub-
contractors. District shall reserve the right to obtain complete copies of
any of the insurance policies required herein.
e. On each Baseline Reset Date, the insurance policies limits set forth in this
Section 10 shall be subject to reasonable increases as determined by
District in District's reasonable discretion.
11. ACCURACY OF SERVICES. City shall be responsible for the technical
accuracy of its services and documents resulting therefrom and District shall not
be responsible for discovering deficiencies therein. City shall correct such
deficiencies without additional compensation. Furthermore, City expressly
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agrees to reimburse District for any costs incurred as a result of such
deficiencies. City 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 City or its agents, employees, or subcontractors.
12. INDEPENDENT CONTRACTOR. City and any agent or employee of City shall
act in an independent capacity and not as officers or employees of District. The
District assumes no liability for the City's actions and performance, nor assumes
responsibility for taxes, bonds, payments or other commitments, implied or
explicit by or for the City. City shall not have authority to act as an agent on
behalf of the District unless specifically authorized to do so in writing and signed
by the Executive Director of the District. City 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. City 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.
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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. PRIOR AGREEMENT. Reference is hereby made to that certain Agreement
between the District and the City for Police, Fire and Emergency Medical
Services filed in the Office of the District Clerk on April 15, 2013 as Document
No. 60276 (as amended or otherwise modified, the "Prior Services Agreement").
As of the mutual execution of this Agreement by the Parties, the Prior Services
Agreement shall automatically terminate without the need for additional action by
either Party; provided that, notwithstanding the foregoing, any obligations of
District or City under the Prior Services Agreement accruing or arising on or prior
to such termination, any obligations arising under Section 8 of the Prior Services
Agreement, and/or any obligations which by their terms survive such termination,
shall remain enforceable by District or City, as applicable.
17. TERMINATION. In addition to any other rights and remedies allowed by law, this
Agreement may be terminated with or without cause by providing written notice
to the other Party specifying the date of such termination, which termination date
shall be no less than six (6) months after to the date on which the non -
terminating Party receives the termination notice.
In that event, all finished or unfinished documents and other materials shall at the
option of District be delivered by City to the Don L. Nay Port Administration
Building (located at 3165 Pacific Highway, San Diego, California 92101).
Termination of this Agreement by Executive Director (President/CEO) as
provided in this paragraph shall release District from any further fee or claim
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hereunder by City other than the fee earned for services which were performed
prior to termination but not yet paid.
18. DISPUTE RESOLUTION
a. 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 thedispute has arisen. Any resultant Agreements
shall be documented and may be used as the basis for an amendment or
directive as appropriate.
b. If mediation is unsuccessful in settling all disputes that are not otherwise
time barred, and if both Parties agree in their sole and absolute discretion,
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, sub -contractor and all parties
bound by this arbitration provision agree to join in and become parties to
the arbitration proceeding.
c. 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
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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 City,
made an exhaustive inspection to check the quality or quantity of the services
performed by the City, made an examination to ascertain how or for what
purpose the City has used money previously paid on account by the District, or
constitute a waiver of claims against the City by the District.
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 Authorized Representative of the City.
a. Submit all correspondence regarding this Agreement to:
President/CEO
Executive Offices
San Diego Unified Port District
P.O. Box 120488
San Diego, CA 92112-0488
b. The City's Authorized Representative assigned below has the authority to
authorize changes to the scope, terms and conditions of this Agreement:
Page 19 of 21
City Manager
1243 National City Blvd.
National City, California 92950
c. Written notification to the other Party shall be provided, in advance, of
changes in the name or address of the designated Authorized
Representative.
d. Requests for payment by City shall be remitted to:
Finance Department
San Diego Unified Port District
P.O. Box 120488
San Diego, CA 92112-0488
[SIGNATURE PAGE FOLLOWS]
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City Attorney
SAN DIEGO UNIFIEDPORTDISTRICT
By:
Name _l"Hc.r1
Title: SLi.cl' d ) n_ c/n /t ;-
Approved as to form and legality.
G RAL COUN
CITY OF NATI
Name.
Title.
Attest.
By. .. _ st/Dep r, By'.,�,
gi'itliki,city Clerk
Approved as to Form'
By C•hwttss Bel/j
A manually signed copy of this Agreement transmitted by email or any other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original signed copy of this Agreement
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