AGREEMENT BETWEEN
SAN DIEGO UNIFIED PORT DISTRICT
and
CITY OF CHULA VISTA
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 CHULA VISTA, a chartered municipal corporation (“City”). The Di strict and th e Cit y may each be referred to herein as a “Party” and together as the “Parties.”
RECITALS:
WHEREAS, the San Diego Unifie d Port District Act allows the District to contract with the municipalities who se t erritorial 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 tidel and trust property located in the City of Chula Vista; 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 reimbursem ent of the cost of police, fire and emergency medical (EMS) services to be provided by the City upon th e District's tidelands and property within the City’s limits, which do not generate ad valorem tax revenues , as depic ted on Exhibit 1 , Non -Tax Paying Tidelands in the City of Chula Vista, incorporated by reference as though fully set forth here in. Those pr operties include, but are not limited to, non -dedicated ACN2021-002
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streets, parks and other open space, unleased devel oped prope rties, leased properties wherein the lessee is not subject to ad valorem taxes (with the exception of prope rties leased to the City), and u nleased vacant land. Nothing herein contained shall give the City the right to use or occ upy 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 se rvices 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 b e 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, 2020 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 o f 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, 2020 , District shall pay City $1,103,646 (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.”
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b. Periodic Baseline Rate Resets. The Baseline Rate shall b e subject to adjustment periodically on the following dates (each a “Baseline Reset Date”):
First Baseline Reset July 1, 2022
Second Baseline Reset July 1, 2025
At least six (6) months before a scheduled Baseline Reset Date, the Parties shall meet an d confer regarding fair and appro priate cost and service standards and commence good faith efforts to renegotiate the Baseline Rate and the accompanying Scope of S ervices, taking into account the actual document ed costs of providing the Services and the results and findings of any Perform ance Audit (as defined in S ection 4.c below) performed prior to such time or completed at any time during such negotiations. Following such discus sions and negotiations, the Parties may jointly, or each separately, present a new Baseline Rate (which shall include an updated Scope of Servic es) to th e Board of Port Commissioners (the “Board”) for approval in the Board’s sole and absolute discretion. Any Bas eline Rate approved by the Board pur suant 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; provided t hat if a Baseline Rate (and accompanying Scope of Services ) approved by the Board is unacceptable to the City, then notwithstanding the provisions of Section 17 to the contrary, City may terminate this Agreement by providing the District with six (6) months’ prior written notice of such termination within sixty ( 60) days of the Board ’s approval. Further if the Board fails to approve a new Baseline Rate on or prior t o a Baseline Reset Date , then the Base line Rate shall adjust pursuant to Section 3. c below, the Scope of Services then in effect shall continue to be effective, and th e 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 te rms of this Section 3.b, fails to approve a new Baseline R ate, which Baseline Rat e is also approved by DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
the City , by 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 Secti on 3 .c below) and the Scope of Se rvices then in effect shall continue to apply until the Parties are t o again commence Baseline Rate negotiations in accordance with terms set forth above, or alternatively, and notwithstanding the provisions of Section 17 to the c ontrary, either Party may terminate this Agreement upon six (6) months’ prior written notice. If a new Baseline Rate is approved by the Board and the City, each acting in its in its sole and absol ute discretion, on or before the date that is six (6) months following a Baseline Reset Date, then (i) in the eve nt that th e updated Scope of Services does not result in increased le vels of Services as compared to the level s of S ervices in effect prior to the applicable Baseline Reset Date, then such new Baseline Rate (including the updated Scope of Services) shall becom e effectiv e as o f such Baseline Reset Date, or (ii) in the event that th e updated Scope of Services results in increased levels of Services as compared to t he levels of Service s 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. Following any establishment of a new Baseline Rate (and updated Sco pe of Services) pursuant to the prev ious 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 for th 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.
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c. Annual Baseline Rate Increases. Commencing on July 1, 2021 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 above shall con trol 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 B aseline Rate pursuant to S ection
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 r ight to adjust the lev el of Servi ces i n accordance with the terms of Section 3.f below; provided, however, that in no event (whether pursuant to a Ser vice level adjustment under Sect ion 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 Adjustmen ts. The Parties agree that upon the occurrence of certain unforeseeable events, the District may defer certain payments due under th is Agreement and/or the District or the City may adjust the level of Services being provided by the Cit y hereunder . Each of the foll owing 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 t hat woul d require Di strict budget cuts in the Servi ce Year during which the events o r need s occur and/or the Service Year immediately thereafter;
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(2) Acts of God, civil commot ions, fire or other casua lty, acts o f terrorism, p andemics, and/or other force majeure type events beyond the reasonable control of a Party;
(3) Expenses associated with bad d ebt, benefit cost incr eases, pollution remediation costs, judgments, and/or settlement costs;
(4) Unanticipated costs associated with regulatory requirements and/or legal mandates; or
(5) A need by Di strict to r eplenish operating reserves should reserves fall below levels required by the then c urrent policies of the Board of Port Commissioners.
e. Deferred Pay ments. 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 per cent (3%) increase to the Baseline Rate for the app licable Services Year (s)) by provid ing 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 defe r an amount attributable to multiple Service Years). Any Adjustment Event may be used as a b asis 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 cumulat ive ba sis. Any amount deferred pursuant to this Section 3.e shall be ref erred 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 i nstallments, during the Service Year following DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
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 f ollowing Service Year ; or if the District elects, at a given time, to defer the Annual Basel ine Increases for 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 Year s 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 Incr eases in accordance with the terms hereof on one or more occasions. No interest shall accrue and be payable wi th re spect to any Def erred Payment. The District ’s obligation to repay any Deferred Payment in accordance with the terms of this Section 3. e shall s urvive the expiration or earlier termination of t his Agreement.
f. Service Level Adjustments. In the cas e of the Distri ct, f ollowing the occurrence of one or more Adjustment Events, or in the case of th e City, following the occurrence of Adjustment Event (2) or p ursuant to Section
3.c above, levels of Services may be reasonably re duced by either th e 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 Cit y, pursuant to Section 3.c as provi ded 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 (6 0) d ays of receiving or sending, as applicable, an adjustment request, the City shall provide to District a detailed summary of changes to the level of Se rvices, 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 DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
be unreasonably withheld, con ditioned, or delayed. In connection with an Adjustment S ummary, if reduced levels of Ser vices will result in a lowe r cost to City to provide the Services, then amounts owed hereunder by the District shall be re duced commensurate wit h the reduced levels of Services. Upon the District’s approval of any Adjustment Summary, (i) the corresponding adjustments to th e levels of Servic es and amounts due hereunder shall immediately become effective and (ii) such adju stments and amounts shall be incorporated into a letter agreement to amend this Agreement solely in order to document the adjustments.
g. Reimbursement Process. City shall submit written requests f or reimbursement to Distr ict for equal qua rterly payme nts un der this Agreement. Such request s shall includ e am ounts due for the Service Year in question and, if applicable, any Deferred Payment or amounts due pursuant to S ection 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 rec eipt of a properly prepar ed request for reimbursement. Failure to make tim ely demand for pay ment sh all not limit City ’s rig ht to payme nt or District ’s obligation to pay.
4. RECORDS
a. In acco rdance with generally accepted a ccounting princip les, City shall maintain full and complet e records of the cost of Services performed under this Agreement. Such documentation, if prepared and maintained in the regular cour se of business, is to include time ca rds, contracts, receipts, original invoices, canceled checks, p ayroll documentation, ca lls for service records, dis patch records, police and fire b udget d ata, other budget data use d to cal culate citywide overhead factors, periodic logs maintained by police, fire, and EMS staff, and a ny other documentation, information, and/or materials related to the Services (collectively, “Service DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
Records”). Such Service Records shall be open to inspection by District at all reasonable times in the City of Chula Vista 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 applic able law or judicial proceedings, or that contain personal confidential inf ormation 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 hav e been resolved, whichever is later.
c. City understands and ag rees that Di strict, 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 Ye ar, to conduct a p erformance audit and service stud y ( a “Performance Audit ”) of all Service Records , whether or not final, which City or anyone else a ssociated with the Services has prepared or w hich relate to the Services which City is performing for District pursuant to this Agreement reg ardless of whet her such records have previously be en provided to Distr ict. 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 Di strict, u nless the requested records are voluminous in nature, in w hich case the City shall provide access to such records for inspection at reasonable t imes 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 performa nce, 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 DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
to District, furnish reasonable facilities and assistance for such any review and audit conducted hereunder. City’s failure to provide the records within the ti me requested s hall preclude City from receiving an y compensat ion due under this A greement until such docume nts are provid ed. In connection with any Per formance Audit, the District shall , in cooperation 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 Perfor mance 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 servi ces for City to perform and complete t he required services; provided, however, the City shall notify the District of all City’s sub-contractors providing any se rvices hereunder . The City shall remain responsible to District for any and all serv ices and obligations required under this Agreement, whet her performed by City or City’s sub- contractors. City shall compensate each City’s sub-contractors in the time periods required by la w. Any City’s s ub-contractors employed by City shall be independent and n ot ag ents of District. City shall ensure that City’s sub-contractors satisfy all substantive requirements for t he work set forth by this Agreement, including insurance and indemnification.
b. City shall also endeavor to include a cl ause in its Agre ements with City’s sub-contractors whi ch reserves t he right, during the pe rformance of th is 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 t his Agreement . This clause shall al so require City’s s ub-contractors to retain all necessary records for a period of t hree (3) yea rs 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.
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6. COMPLIANCE
a. In performance of th is Agreement, City and City’s sub -contractors shall comply wi th the California Fair E mployment and Housing Act, the American with Disabilities Act, and all other applicable federal, state, and local laws prohi biting d iscrimination, includ ing without limita tion, laws prohibiting discrimination because of age , ancestry, color, creed, denial of family and medical care leave, disability, marital status, medical condition, national origin, race, reli gion, sex, or se xual orientation. City shall comply with the pr evailing wage prov isions of the L abor Code and any o ther prevailing wage law s, and th e P olitical Refo rm Act provisions of the Government Code, as applicable.
b. City shall comply wit h all Federa l, State, reg ional an d local laws, and district Ordinances a nd Regulations applicable to the performance of services under this Agreement a s exist n ow or as may be added or amended.
7. INDEPENDENT ANALYSIS . City shall provide the s ervices required b y th is Agreement and arrive at conclusions wit h respect to the r endition 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 no t as sign or transfer voluntar ily or i nvoluntarily an y of its rights, dut ies, or obligations under this Agreement w ithout 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, i ts a gents, officers, employees, and subcontractors (collectively, the “District Parties ”), from and agai nst an y DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
claim, demand, action, proceeding, suit, liability, damage, cost (including reasonable attorneys’ fees) or e xpense, includ ing but not limited to , damage to property, the loss or use th ereof, or i njury or dea th to any person, including City’s officers, agents, s ubcontractors, e mployees (collectively “Claims”), c aused by , arising o ut of, or related to the performance of services by the City or its officers, agents, subcontractors, 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, inde mnify, and hold har mless sh all exclude any Clai m to the extent arising f rom the negligence or willful misconduct of any o f the District Parties.
b. To the fullest extent permitted by law, District agrees to defend, indemnify, and hold harmless the C ity Parties from and against a ny Claims to the extent arising from the negligence or willful misconduct of a ny of t he 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 attor neys’ f ees and costs the indemnif ied Party incurs a ssociated wit h o r re lated 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 , c onduct its defense, or participate in the defense of any Clai m r elated 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.
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e. Each of the Party ’s indemnification obligations set f orth 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 durat ion of the Agreement and for five (5) years thereafter (or, if longer than five (5) years , for the then applicable statute of limita tions f or bodily in jury and pro perty damage claims following the expiration or earlier te rmination of this Agre ement), insurance against claims for in juries to persons or damages to pr operty which may arise from or in conne ction with the performance of t he work hereunder and the result s o f that work by the City, its agents, representatives, em ployees, or subcontra ctors. City (and District unless noted to only be applicable to the City ) shall at all times during the Term maintain, at its expense, the f ollowing minimum le vels and types o f insurance:
(1) Commercial Ge neral Li ability (including, without limitation, Contractual Lia bility, Personal In jury, A dvertising 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 on e million dollars ($1,000,000) per Occurrence and two mil lion dollars ($2,000,000) Ag gregate for bodily injury, personal i njury and property damage.
(a) The deductible or self-insured retention on this Commercial General Liability sh all not exceed $5,000 unless District has approved of a highe r deductible or se lf-insured rete ntion in writing.
(b) In the case of th e City , th e Commercial General Li ability policy shall be e ndorsed to include the Di strict; its agents, DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
officers and employees as additional insu reds in the form as required by the Dist rict. A n exempla r endor sement i s attached (Exhibit 3, Certificate of In surance, attached hereto and incorporated herein).
(c) The cov erage provided to th e District, as an a dditional insured, s hall be primary and an y insurance o r self- insurance ma intained by the District shall be exces s of the City’s insurance and shall not contribute to it.
(d) The City’s Commercial General Liability p olicy 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 Hi red Automobiles) written at least as broad as Insurance Services Office F orm Number CA 0001 with limits of no less t han one million dollar s ($1,000,000) combined single limit per accident for bodily injury and property damage.
(3) In the case of the City, Workers’ Compensation, sta tutory limits, is required of the City and all sub -consultants (or be a qualified se lf- insured) under the appli cable la ws an d in accordance wit h “Workers’ Com pensation and Insurance Act”, Di vision IV of the Labor Code of th e Stat e of California and any Act s a mendatory thereof. Employer’s Liability, in an amount of not less than one million do llars ($1,000,000) each accident, $1 ,000,000 disease policy lim it and $1,000,000 disease each employee. This policy shall be endorsed to include a waiver of subrogatio n endorsement, where permitted by law.
(4) Umbrella or Excess Liab ility insurance with l imits no l ess than o ne million doll ars ($1,000,000) p er occurrence and aggre gate. This DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
policy must provide excess insurance over the same terms and conditions re quired above for the General Liability, Automob ile Liability and Employer’s Liability policies.
b. City shall furnish District with certificates of insurance coverage for all the policies described above upo n execution of this Agreement and upo n renewal o f any of these policies. A Certificate of Insu rance i n a f orm acceptable to the District, an exemplar Certificate of Insurance is attached as Exhi bit 3 and made a p art h ereof, evidencing the existence of the necessary insurance policies and endorsements required shall be kept on file with the District. Ex cept in the event of cancellation for non -payment of premium, in which case n otice 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 del ineate the name of t he insurance company affordi ng co verage and the policy n umber(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 comp anies or underwriter s is at tached to the certifi cate of insurance, the addendum shal l indicate the insurance carrier or underwriter who is the lead carr ier a nd th e applicable po licy number for the CGL coverage.
d. Furnishing insurance specified herein by the District will in no way relieve or limit any responsibility or obligation impose d by the Ag reement or otherwise on City or City’s sub-contractors or any tier of City’s sub - contractors. Distr ict shall rese rve the r ight to obtain complete copies of any of the insurance policies required herein.
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e. On each Baseline Reset Date, the insurance policies limits set forth in this Section 10 shall b e su bject to reasonabl e increases a s determined by District in District’s reasonable discretion.
11. ACCURACY OF SE RVICES. City shall be responsible for the technical accuracy of its services and documents resulting therefrom and District shall not be responsible f or di scovering deficiencies therein. City shall correct such deficiencies without additional compensatio n. Furthermore, City expressly agrees to reimburse Dis trict f or any co sts incurred as a resul t of such deficiencies. City shall make de cisions and ca rry out its re sponsibilities hereunder in a tim ely manner and shall bear all costs i ncident 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 in dependent 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 o r other commitmen ts, implied or explicit by or for t he City. City shall not ha ve a uthority to act as an agent on behalf of the Dis trict unless specifically authorized to do so in writing and signed by the E xecutive Director of the District. City acknowledges that it is a ware 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 COUNSE L. The Parties agree that they are aware t hat they have the right to be advised by counsel with re spect to the negotiat ions, ter ms 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. T his Agre ement 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 t he Agreement. The formation, interpretation DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
and performance of this Agreement shall be governed by the laws of the State of California.
14. INDEPENDENT REV IEW. Each Party heret o dec lares and represents that in entering into this A greement it has relied and is relying sole ly upon its own judgment, belief and knowle dge of t he nature, extent, effect and consequence relating thereto. Each Party further declares and represents that this Agreement is being made witho ut reliance upon any statement or representatio n not contained herein of any other party, or any representative, agent or a ttorney of any other party.
15. INTEGRATION AND MODIFICATION . This Agr eement co ntains t he ent ire Agreement between t he Parties and s upersedes all prior neg otiations, discussion, obli gations and rig hts of t he Parties in respect of each other regarding the subject matter of this Agreement. There is no other written o r oral understanding between the Parties. No modifications, amendment or alteration of this A greement shall be valid unl ess it is in wr iting and signed by t he Parties hereto.
16. PRIOR AGREEMENT. Reference is hereby ma de to that certain Agreement between th e Di strict and the City fo r Poli ce, Fire and Emergency Medical Services filed in the Office of the District Clerk on April 22, 2013 as D ocument No. 60299 (as amended or otherwise modified, the “Prior Services Agreement”).
As of the mu tual execution of thi s Agreement by the Parties, the Prior Services Agreement shall automatically terminate without the need for additional action by either Party; p rovided that, notwith standing the f oregoing, any oblig ations 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.
Notwithstanding the foregoing prov isions of this Section 16, the Par ties agree that in the first q uarterly statement submitted by the City to the District pursuant DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
to Section 3. g above, and f or the time period between July 1, 202 0 and the effectiveness o f thi s Agreement, the City s hall sub mit for reimbursement an amount equal to (a) the amounts owed fo r Services between July 1, 2020 and the effectiveness of this Agreement and pursuant to the terms hereof less (b) the amounts paid under the Prior Services Agreement between July 1, 2020 and the effectiveness of this Agreement.
17. TERMINATION. In addition to any other rights and remedies allowed by law, this Agreement may be term inated with or wi thout cause by providing written not ice 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. For the first three (3) years of the Term, but subject to the terms of Section 3.c above, the termination must be upon the mutual written agr eement of the Partie s and from and after July 1, 2023, either Party may terminate in its sole and absolute discretion by provid ing six months’ advance notice as set forth in the previous sentence.
In that event, all finished or unfinished documents and other materials shall at the option of D istrict be delive red by City to the D on L. Nay Po rt Adm inistration Building (located at 3 165 Pacific Highway, San Diego, C alifornia 92101).
Termination of this Agr eement by Executive Director (P resident/CEO) as provided in th is parag raph shall release Dis trict from any fu rther fee o r claim hereunder by City other than the fee earned for services which w ere performed prior to termination but not yet paid.
18. DISPUTE RESOLUTION
a. If a dispute a rises out of or relates to this Agreement, o r th e alleged breach thereof, and is not set tled by d irect negoti ation o r such othe r procedures as may be agreed, and if such dis pute is no t otherwise time barred, the Parties agree to first try in good faith to settle the dispute amicably by mediation administered at San Diego, Californi a, by the American Arbitration Association, or by such other provider as the Parties DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
may mutually select, prior to initiating any litigation or arbitration. Notice of any such di spute must be filed in writing with the other Party within a reasonable time after the d ispute has arisen. A ny resultant Agreements shall be documented and may be used as t he basis for an amendment or directive as appropriate.
b. If mediation is unsucces sful in settling all disputes t hat 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, Californi a, by the A merican Arbitrati on As sociation, or by such othe r provid er as the Parties may mutually select, provided, however, that the Arb itration Award sha ll 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. O n demand of the arbitrator or any Party to this Agreement, sub-contractor and all parties bound by this arbitration provision agree to join in an d become parties to the arbitration proceeding.
c. The fo regoing mediation and arbitration procedures notwiths tanding, all claim filing requ irements of the Agreement d ocuments, the Califor nia Government Cod e, and otherwise, shal l remain in full force and effect regardless of whether or not such dispute avo idance and resolution procedures have been implemented, and the tim e per iods within which claims are to be filed or presented to the District Clerk as required by said Agreement, Government Cod e, and othe rwise, 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 pur suant to this Agreement does no t represent that the District has made a detai led examination, audit, or DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
arithmetic v erification of the do cumentation submitted f or pa yment by th e City, made an exhaustive inspection to check the q uality or q uantity of the se rvices performed by the City, m ade an e xamination to as certain how or for wha t purpose the City has used mone y previously paid on account by the Dist rict, or constitute a waiver of claims against the City by the District.
20. CAPTIONS. The captions by whi ch t he paragraphs of t his Agreement are identified are f or convenience only and s hall have n o ef fect upon it s interpretation.
21. EXECUTIVE DIRECTOR’S SI GNATURE. It i s an express condition of t his Agreement that said Agreement shall not be com plete nor effective until signed by ei ther the Executive Dire ctor (President/CEO) or Authorized D esignee 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:
City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
(619) 409-5818
[email protected]
c. Written notifica tion t o the o ther Party s hall be p rovided, in advance, of changes in the name or address of the d esignated Authorized Representative.
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
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]
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7
SAN DIEGO UNIFIED PORT DISTRICT CITY OF CHULA VISTA
________________________________ _____________________________ Shaun D. Sumner Maria Kachadoorian
Vice President, Real Estate, Engineering City Manager
and Facilities
Approved as to form and legality: Attest:
GENERAL COUNSEL
________________________________
By: Assistant/Deputy Kerry Bigelow
City Clerk
Approved as to Form:
Glen R. Googins
City Attorney
A manually signed copy of this Agreement transmitted by email or any other mea ns of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
David Jones
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 For
San Diego Bay
San Diego Bay
Nat'l Wildlife
Refuge
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5 W 32nd S
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Walmart
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Bay
Bl
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Walnut A
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Lagoon Dr
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San Diego
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District
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Bayfront
(Signature Park)
Bayside Park
Chula Vista
Harbor
California
Yacht Marina
First Free Will
Baptist Church
H St Trolley
Station
Bayfront E St.
Trolley Station
BayB l v d
Ba
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Bl
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Bayfront (Otay
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Marina View
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Marina View
Park Expansion
Davidson
S
Cedar Ave
Ga
Beec
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Ash A
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Highland Ave
Gua
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Glover
Ave
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4th Ave
thA v e
Eucalyptus Park
Ken Lee
Building
Pilgrim
Evalgelical
Lutheran
Church
South Bay
United
Pentecostal
Church
Coven a
Reform
Churc
Chula V
Halse y St
5th Ave
JS t
Bee
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Jeffer
son Ave
Colo
rado
Ave
Chula Vista
Center
Chula Vista
Junior High
School
Spotlight On
Broadway
Iglesia Palabra
Viva
Filipino &
American Bible
Baptist Church
Chula Vista
Church of God
5 KS t
Si erra Way
Sie
Industr
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d
Oak
lawn
Ave
Bay Blvd
Bay Bl
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Jef
fers
on A
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Col
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do
Av
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Co
lorado Ave
John J Montgomery Fwy
Chula Vista
Social Security
Building
Br
P
Palomar Street
Boal
Esri Community Maps Contributors, City of Chula Vista, San Diego Unified Port District, SanGIS, Esri, HERE, Garmin, SafeGraph, INCREMENT P, METI/NASA, USGS, Bureau of Land Management, EPA, NPS, US Census Bureau, USDA
Port Boundary
City Boundary
0 500 1,000250
Feet
CHULA VISTA BAY FRONTCHULA VISTA BAY FRONT
Chula VistaChula Vista
National CityNational City
San DiegoSan Diego
Chula VistaChula Vista
National CityNational City
Exhibit 1
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 serJite
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Exhibit 2
STATEMENT OF SERVICES
CITY OF CHULA VISTA
. FY:.201243 ...
,S :s;t:�@U,
l J24'l29:
.· .. '$ .. '943;530
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DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 Annmilr.Cosf:pe1<:Beat Officer
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DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 _
EXHIBIT 3
CERTIFICATE OF INSURANCE
San Diego Unified Port District
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 District, the policies include, or have been endorsed to include, the coverages or conditions of coverage noted on page 2 of this certificate. (3) Sig ned 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 c/o Ebix BPO
P.O. Box 100085 – 185
Duluth, GA 30096 – OR –
Email: [email protected]
Fax: 1-866-866-6516
Name and Address of Insured (Consultant)
SDUPD Agreement Number: ____________________
This certificate applies to all operations of named insureds on District property in connection with all agreements between the District and Insured.
CO LTR TYPE OF INSURANCE POLICY NO. DATES LIMITS
Commercial General Liability
Occurrence Form
Claims-made Form
Retro Date __________
Liquor Liability
Deductible/SIR: $_________
Commencement Date:
Expiration Date:
Each Occurrence:
$___________________________________
General Aggregate:
$___________________________________
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 $
Police Professional Liability
Claims Made
Retro-Active Date ______________
Commencement Date:
Expiration Date:
Each Claim
$
Excess/Umbrella Liability Commencement Date:
Expiration Date:
Each Occurrence: $_______________________
General Aggregate:$_______________________
CO LTR COMPANIES AFFORDING COVERAGE A. M. BEST 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:
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 _
Phone: Fax Number:
Signature of Authorized Agent(s) or Broker(s)
Date:
SAN DIEGO UNIFIED PORT DISTRICT
REQUIRED INSURANCE ENDORSEMENT
ENDORSEMENT NO. 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 any and all activities or work performed on district premises
Notwithstanding any inconsistent statement in the pol icy to wh ich this endorsement is attached or in any endorsement now or hereafter attached thereto, it is agreed as follows:
1. The San Diego Unified Port Di strict, its officers, agents, and e mployees are additional insureds in relation to those operations, use s, occupati ons, acts, a nd activities descri bed generally above, including activities of the nam ed insured, its officers, agents, employees or invitees, or activities performed on behalf of the named insured.
2. Insurance under the policy(ies) listed on thi s endorsement is primary and no other insurance or self -insured retention carried by the San Dieg o Unified Port District will be ca lled upon to contribute to a loss covered by insurance for the named insured.
3. This e ndorsement shall include a waiver of trans fer of righ ts of recove ry against the San Diego Unified Port District (“Waiver of Subrogation”).
4. 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.
5. 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 mai l, return rec eipt requested, will be given to the San Diego U nified Port District prior to the ef fective date of cancellation. In the event of cancel lation due to nonpayment of premiu m, ten (10) days writte n 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 li mits, agreements or exclusions of the policy(ies) to which this endorsement applies.
___________________________________________________________________________ (NAME OF INSURANCE COMPANY)
___________________________________________________________________________ (SIGNATURE OF INSURANCE COMPANY AUTHORIZED REPRESENTATIVE)
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7 _
MAIL THIS ENDORSEMENT AND NOTICES OF CANCELLATION:
San Diego Unified Port District
c/o Ebix BPO
P.O. Box 100085 – 185
Duluth, GA 30096 – OR –
Email to: [email protected]
Fax: 1-866-866-6516
DocuSign Envelope ID: 8E860219-8202-478F-92B3-0A721F3B3ED7