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HomeMy WebLinkAboutMOU AgreementAMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BETWEEN SAN DIEGO UNIFIED PORT DISTRICT AND THE CITY OF NATIONAL CITY REGARDING THE NATIONAL CITY AQUATIC CENTER THIS AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING, made and entered into this th day of , 2013, by and between the SAN DIEGO UNIFIED PORT DISTRICT, a pubiic corporation, hereinafter called "District," and the CITY OF NATIONAL CITY, a municipal corporation, hereinafter called "City,": WHEREAS, both the San Diego Unified Port District (District) and the City of National City (City) have worked cooperatively to develop the National City Aquatic Center (Project); and WHEREAS, the District has approved the Project's concept plan; and WHEREAS, the District certified the Project's Port Master Plan Amendment Mitigated Negative Declaration, SDUPD Cierk's Document No. 51129 filed on October 11, 2006; and WHEREAS, the Port Master Plan Amendment for the Project was certified by the California Coastal Commission, SDUPD Clerk's Document No. 51129 filed on October 11, 2006; and WHEREAS, the District granted the Community Development Commission of National City a thirty (30) year lease for the Project's site, with the condition that the project commenced construction before December 31, 2012, SDUPD Clerk's Document No. 56735 filed on July 29, 2010 (Lease); and WHEREAS, the District has consented to the transfer of the Lease to the City of National City; and WHEREAS, the District and City entered into an amendment to the Lease on January 11, 2013, extending the date of commencement of construction to December 31, 2013; SDUPD Clerk's Document No. 59801 filed on January 18, 2013; and WHEREAS, the District has issued the Project's Coastal Development Permit, SDUPD Clerk's Document No. 57961 filed on August 10, 2011 and has additionally granted a two-year extension of the Permit through August 2, 2015; and WHEREAS, the District and the City, on the 13th day of September, 2011, entered into a Memorandum of Understanding ('`MOU") regarding the Project, 1 ORIGINAL which MOU is on file in the Office of the District Clerk bearing Document No. 58060; and WHEREAS, District, on the 26th day of September, 2011, fulfilled its MOU obligation to transfer funds to City in the amount of $830,000; and WHEREAS, District and City, on the 11kh day of December, 2012, mutually agreed to MOU Amendment No. 1 which extended the deadline for commencement of construction to the Project, which is on file in the Office of the District Clerk bearing Document No. 59802; and WHEREAS, City has requested the District increase its financial support for the Project by reallocating its planned financial support for a separate National City Park project to the Project; and WHEREAS, the parties have agreed to amend and restate their agreement regarding the Project in this Amended and Restated MOU. NOW THEREFORE, the parties agree that all terms of the MOU are hereby replaced in their entirely with the following: 1, City agrees to design and construct the Project. City shall advertise, award, and enter into a Construction Contract with Contractor including all construction of the Project and commence construction by December 31, 2013. District shall not be a party to Construction Contract and shall, in no way, be liable under Construction Contract to City, Contractor, or anybody. City shall complete construction of Project on or before the expiration of the Coastal Development Permit, unless the District and City mutually agree to file for an extension. 2. District agrees to contribute a total amount not to exceed $3,910,000 to the Project for design and construction as follows: (a) District shall transfer to City $830,000 to be used towards design and/or construction costs. City acknowledges that this obligation of the District has previously been satisfied in full by a transfer on September 26, 2011. (b) District shall reimburse City for Project construction costs in an amount not to exceed $3,080,000 in accordance with and subject to Section 5 herein. 3. City agrees to be solely responsible for any Project costs in excess of the $3,910,000 contribution from the District. City shall not be relieved of any obligations under this MOU due to increased expenses or cost overruns. 4. Due to the wind down of redevelopment and the California Department of Finance's refusal to recognize the Aquatic Center as an enforceable obligation of what was formerly the City's redevelopment agency, City requested District significantly increase its financial support for the Project. 2 City acknowledges that, District has accommodated City's request and that District's previously planned financial support for a separate National City Park project has been reallocated to this Project. 5. District reimbursement of City's construction costs (a) District shall only reimburse City's payments to Contractor pursuant to the Construction Contract, including change orders; (b) City sha!! submit Contractor's pay application and City's proof of payment to District along with any request for reimbursement. (c) District shall reimburse City in the amount of the construction costs incurred by City up to the amount of the Construction Contract, but such reimbursement will not exceed $3,080,000 should the Construction Contract exceed this amount. (d) Any credits or adjustments subsequently agreed upon between City and Contractor shall be reflected in reimbursement requests to District. (e) In addition to the total not -to -exceed limit, District's reimbursement of City's construction costs shall not exceed $1.2 million in District's Fiscal Year 2013/2014 (July 1, 2013 through June 30, 2014). If City requests reimbursement exceeding $1.2 million in District's Fiscal Year 2013/2014, the amount exceeding $1.2 million may be reimbursed in District's Fiscal Year 2014/2015. (f) District's obligation to reimburse City shall not commence until City has completely spent the $830,000 previously paid by District for design and/or construction costs. City shall first provide District documentation that such has been spent. 6. Change Orders. City agrees to give District no less than five business days' notice prior to executing any change order or otherwise agreeing to an increase in contract price. In the event `unforeseen conditions" arise, or due to other conditions a change order needs to be expedited, the City may waive this notice requirement.. City will notify District as soon as practicable in the event of a waiver of this provision. 7 If City fails to meet any of the deadlines in Section 1 above, City shall return all funds District has paid to City under this MOU regardless of expenses actually incurred by City related to the Project within sixty (60) calendar days. 8. This MOU shall commence effective on the date set forth above and shall continue until the Project is constructed and litigation and claims, if any, are settled. 3 9. All obligations of the parties under the terms of this MOU are subject to the appropriation of the required resources by the parties and the approval of their respective Councils or Board of Commissioners. 10. This MOU shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this MOU, the action shall be brought in a state or federal court situated in the County of San Diego, State of California. 11.AII terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 12.For purposes of this MOU, the relationship of the parties is that of independent entities and not as agents of each other or as joint ventures or partners. The parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. 13. No alteration or variation of the terms of this MOU shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 14. Nothing in the provisions of this MOU is intended to create duties or obligations to or rights in third parties to this MOU or affect the legal liability of the parties to this MOU to third parties. IN WITNESS WHEREOF, parties hereto have executed this Amended and Restated Memorandum of Understanding as of the day and the year first above written. Port Attorney SAN DIEGO UNIFIED PORT DISTRICT N Karen J. Weymann Director, Real Estate APPROVED AS TO FORM: CITY OF NATIONAL CITY By By Claudia G. Siiva Ron Morrison City Attorney Mayor SDUPD Doc. No. 590442 4