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HomeMy WebLinkAbout2004 CON CDC MOU (Amendment #2) SD Unified Port District - Harrison Ave ExtensionSan Diego Unified Port District Document No. 4672,5 Filed MAR 0 3 2004 Office of the District Clerk AMENDMENT NO. 2 TO AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE SAN DIEGO UNIFIED PORT DISTRICT RELATIVE TO THE EXTENSION OF HARRISON AVENUE, THE NATIONAL CITY MARINA, OTHER POSSIBLE DEVELOPMENT AND RELATED PUBLIC IMPROVEMENTS AND CAPITAL DEVELOPMENT PROGRAMS IN THE VICINITY OF 24' STREET AND HARRISON AVENUE, NATIONAL CITY RECITALS WHEREAS, the Community Development Commission of the City of National City ("CDC") and the San Diego Unified Port District ("District") entered into a Memorandum of Understanding dated June 10, 1997 ("1997 MOU") and recorded in the office of the District Clerk as Document No. 36077; and WHEREAS, CDC and District determined to expedite the projects described in the 1997 MOU to give more control to CDC to manage these projects and to that end, CDC and District modified the 1997 MOU and entered into an Amended and Restated Memorandum of Understanding ("2000 Amended MOU"), recorded on January 18, 2000, in the office of the District Clerk as Document No. 39834; and WHEREAS, on December 22, 1999, the District acquired the National Distribution Center property ("NDC"), and is now in the process of amending its Port Master Plan to incorporate NDC into the Port Master Plan; and WHEREAS, CDC and District have decided to further modify, clarify, and coordinate activities and work in concert regarding the "Marina Property" project and the NDC as described in the 2000 Amended MOU; and 1 DUPLICATE - ORIGINAL WHEREAS, CDC and District, on July 31, 2001 entered into Amendment No. 1, the purpose of this Amendment No. 1 to Amended and Restated Memorandum of Understanding ("Amendment") is to further define the roles and obligations of CDC and the District relative to the Marina Property project. NOW THEREFORE, in consideration of the mutual benefit to be derived therefrom, CDC and District hereby agree as follows: All other terms, obligations, and understandings of the parties as set forth in the 2001 Amended MOU shall remain in full force and effect and shall be applicable to this Amendment provided, however, Parcel No. 2 is excluded from the Amended and Restated MOU, which exclusion will permit the District and CDC to discuss alternative uses for Parcel No. 2. This Amendment No. 2 to the Amended and Restated Memorandum Of Understanding shall terminate on November 30, 2005, unless it is extended by mutual agreement prior to August 31, 2005. Dated: MAR 0 3 2004 Approved as to form: PQ$T ATTORNEY Dated: MAR 0 3 2004 Approved as to form: CITY ATTORNEY 4R-,- 0- SAN DIEGO UNIFIED PORT DISTRICT COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: F:\Project\National City Comm Devel Commission (MOUI\Documents\445369 v1 - MOU Amendment No. 2 8.14.03.doc 2 AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE SAN DIEGO UNIFIED PORT DISTRICT RELATIVE TO THE EXTENSION OF HARRISON AVENUE, THE NATIONAL CITY MARINA, OTHER POSSIBLE DEVELOPMENT AND RELATED PUBLIC IMPROVEMENTS AND CAPITAL DEVELOPMENT PROGRAMS IN THE VICINITY OF 24TH STREET AND HARRISON AVENUE, NATIONAL CITY RECITALS WHEREAS, the Community Development Commission of the City of National City ("CDC") and the San Diego Unified Port District ("District") entered into a Memorandum of Understanding regarding 24th Street and Harrison Avenue dated June 10, 1997 ("1997 MOU") and recorded as District Document 36077; and WHEREAS, CDC and District have decided to expedite the projects described in the 1997 MOU and give more control to CDC to manage these projects; WHEREAS, it is in the best interests of the District and CDC to coordinate activities and work in concert in order to achieve development that is truly beneficial. In this respect, CDC and the District have decided to modify the 1997 MOU and replace it with this Amended and Restated MOU ("MOU"). WHEREAS, the purpose of this MOU is to define the roles of CDC and the District relative to participation in the planning, implementation, and funding of certain projects in the City. The tasks listed below are necessary to make decisions relating to the extent of public improvements, the acquisition of properties, and the sources and uses of required funds. NOW THEREFORE, in consideration of the mutual benefit to be derived therefrom, District and CDC hereby agree as follows: Document No. 39834 Filed JAN 18 2000 SD UNIFIED PORT DISTRICT Clerk's Office DUPLICATE -ORIGINAL I. PLANNING The District shall undertake a Port Master Plan Amendment of all property it owns or has a real property interest in within the City limits collectively and all properties to be purchased and conveyed to the District ("District Property"), but not currently in the Port Master Plan. The CDC shall conduct a Master Plan of the areas contemplated for development by CDC and within City's jurisdiction but not on District Property. Both District and CDC shall conduct EIRs on their own properties as appropriate to accomplish the purposes of the development contemplated by this MOU. All such Master Planning and EIR processes shall be at the own expense of the respective parties. The Master Planning efforts of both CDC and District are to be coordinated and compliment each other. As to properties CDC or District currently own, such Master Planning shall be completed by January 31, 2001, not including Coastal Commission approval. For any other properties acquired, such Master Planning process shall be completed expeditiously. II. HARRISON AVENUE PROJECT A. The District has entered into a contract for engineering services for the widening of 24t Street from I-5 to Harrison Avenue and for the construction of Harrison Avenue from 24th Street South to 32nd Street. This contract has been assigned to CDC. The CDC bid the Harrison Avenue Extension and 32nd Street portion of the project as a package with an expanded scope from that which was initially contemplated in the 1997 MOU. The expanded project, including 32nd Street improvements to Tidelands Avenue ("Harrison Avenue Project") is now to be completed as described herein. B. CDC shall continue to be responsible for the completion of the engineering services related to the Harrison Avenue Project and for the awarding and management of the construction contract. CDC and District will keep each other advised as to the progress of the construction and environmental review processes and will jointly agree on mitigation measures and modifications to the plans as they are implemented. CDC is exclusively responsible for: preparing plans, specifications, and bid documents; calling for bids; entering into a construction contract; and supervising the construction of the improvements regarding the Harrison Avenue Project. 2 C. CDC and District agree that the Harrison Avenue Project will now include improvements to 32nd Street outside the scope of 1997 MOU and as described in the bid package to be awarded on or about December 7, 1999. District shall be exclusively responsible for all costs for 32nd Street improvements as shown on Exhibit H. D. During the design phase of the Harrison Avenue Project, certain issues have arisen with the design and engineering firm. CDC and District shall cooperate in negotiating with the design and engineering firm to negotiate a credit towards billing on the project for perceived errors and omissions in the project, including, but not limited to, problems with storm drain planning and the need for a detention basin. E. CDC shall arrange the construction schedule to put the construction of the detention basin, if needed, at the end of the project. If a detention basin is needed on District property, then it shall be permitted for a maximum of six months following completion of the Harrison Avenue Project. CDC shall immediately apply for an U.S. Army Corps of Engineers 404 Permit for the storm drain necessary for this project, while the District, concurrently processes, subject to its sole discretion, a Coastal Development Permit and a Supplemental EIR, if required, for the new storm drain outfall. All costs associated with the District's processing of the new storm drain outfall shall be charged against Harrison Avenue Extension MOU funds on Exhibit H. District will act as lead agency on any CEQA documents necessary for construction of the new storm drain outfall. Also, CDC shall consult with the engineering and design firm to evaluate the possibility of modifying the permanent outfall to be at "Goesno Place" or other appropriate location in order to save money on the permanent outfall rather than continuing the permanent outfall to Tidelands Avenue. The relocation of the permanent outfall shall be done in cooperation and with the agreement of the District. F. CDC has opened the bids for the Harrison Avenue project and currently must award the bids on or before November 20, 1999 in order for the prices to be held at the bid amounts. CDC shall contact the three lowest bidders and confirm that they will hold their prices at least until the CDC Board meeting on December 7, 1999. G. On or before completion of the construction of the Harrison Avenue Extension, CDC must use its best efforts to obtain all entitlements for the Harrison Avenue Project and all necessary permits including, but not limited to, an easement for the stone drain outfall 3 pipeline, Coastal Development Permits, a Regional Water Quality Control Board Discharge Permit, and an Army Corps of Engineers 404 Permit. Notwithstanding the foregoing, CDC must obtain an appropriate easement from the Burlington Northern Santa Fe Railway Company ("BNSF") in a form acceptable to CDC and District and signed by the City and BNSF before commencement of construction of the Harrison Avenue Project. III. PROPERTY ACQUISITIONS A. CDC shall acquire the Ace Metals, Cleveland Associates, Beaty Trust, and Cuyamuca Meats properties as depicted in Exhibits A and B. The CDC and District shall cooperate in the acquisition of these properties and any legal proceedings related to their acquisition. CDC shall be responsible for all environmental testing including Phase I, and if necessary, Phase II reports on these properties. CDC shall obtain a reuse analysis of the property located in the southwest quadrant of I-5 and 24th Street that may be acquired. CDC shall cause these properties to be remediated pursuant to its Polanco Act authority. CDC ultimately has the decision whether to complete acquisition of each one of these properties with the exception of the Beaty Trust property. B. CDC is to pay for all expenses for the acquisition of the Ace Metals property out of its own funds and is not to use any of the funds provided by District. Except for Marina MOU and Marina Building Cost Index Escalator funds (`BCI"), CDC may use funds provided by the District as described in Exhibit H for acquisition of the Beaty Trust, Cuyamuca Meats, and Cleveland Associates properties. CDC has acquired the Beaty Trust property and shall expeditiously process documents to transfer title to the Beaty Trust property to the District. C. Subsequent to acquisition of any or all of these properties, CDC shall demolish any improvements, cause the properties to be remediated, complete public improvements as provided in this MOU and, after consultation with the District, consider the sale or lease to individuals and/or entities, including the District, for redevelopment purposes of any of these properties upon terms and conditions acceptable to the District. Such terms and conditions may include, but shall not be limited to, the financial capability and development experience of the proposed purchaser or lessee; the nature, scope, timing, and scale of the proposed development, including the uses proposed to be developed on 4 the property; and the compatibility of the proposed development with adjacent and nearby District activities, specifically including the proposed National City Marina ("Marina"). Such criteria will not apply to property acquired for right-of-way purposes. In the event of any such sale, the net proceeds shall be credited to the National City CIP funds available for the Marina development or any other National City projects funded by District under the Memorandum of Understanding between the San Diego Unified Port District and the City of National City dated July 18, 1995, and recorded as District Document No. 33007 ("1995 MOU"). D. In carrying out any property acquisitions pursuant to this MOU, the District and CDC acknowledge and agree that neither party is obligated to exercise its eminent domain authority except as it deems consistent with the requirements of the law, and each shall retain its full and unfettered discretion to reject the use of eminent domain. IV. MARINA PROPERTY A. In cooperation with the District, CDC shall market the District's available marina -related property depicted in Exhibit C. CDC shall have the right to advertise for request for proposals on developing a National City Marina ("Marina Project"). District shall cooperate in assisting in drafting any such requests for proposals and give recommendations regarding marketing of the Marina Project. CDC shall evaluate the proposals in cooperation with the District and they shall jointly agree on the criteria for evaluating the request for proposals. Such criteria shall include at least those criteria listed in Exhibit D and rent terms consistent with the then applicable District Board Policies for marina leases. It is understood the Marina MOU funds cannot be used for purposes other than development of the Marina Project. B. CDC may instead find an operator through the request for proposal process described above. Such operator must also meet the applicable criteria in Exhibit D and rent terms consistent with the then applicable District Board policies for marina leases. 5 V. PASHA RELATED PARCELS A. CDC and District further agree that the District may use the 3.4 acre, Commercial/Recreation-Zoned Property (delineated in Exhibit E attached hereto) for Maritime Operations. District shall make the Exhibit E property available to a qualified developer within six months of acceptance of a proposal by CDC for a Commercial/Recreation-Zoned use approved by the District. B. District may apply to pave Parcel B-2 approximately 4.48 acres, as delineated on Exhibit F, and approximately 8.9 acres, delineated in Exhibit G, in order for District to use these properties in connection with the District's Maritime Operations. To that end, CDC shall use its best efforts to assist District in its request for a Coastal Development Permit ("CDP") and any other necessary City Engineering or Building Permits for these parcels. As to the 4.48 acres, Parcel B-2, CDC shall use its best efforts to assist District in its request to the City for a CDP, Conditional Use Permit, and a City Engineering Permit to allow for the paving of this property. C. On the date a lease is executed for construction of the Marina Project or when CDC begins construction of the marina for itself, District agrees to make Parcel B-2 available at a fair market value to a qualified developer for purposes either associated with marina development or other compatible uses. The CDC shall have the right of first refusal to lease the following marina -related property for a period of five years, commencing July 1, 1997, and ending June 30, 2002, as follows: 1. If the District receives an offer to lease all or part of this marina -related property for commercial/recreation uses (Exhibit F, Parcels B-1 and B-2), for which District staff is prepared to recommend acceptance to the District's Board of Port Commissioners, then the District shall notify the CDC in writing of the price, terms and conditions of the lease. Within 30 days of the date that CDC is notified in writing of said lease offer, CDC may submit its own lease offer to the District containing, rent, terms and conditions identical to the lease offer already received by District. If the CDC fails to timely submit its own lease offer, the CDC's right of first refusal in this MOU is null and void and of no further force or effect. 6 D. CDC acknowledges that any such right of first refusal for lease of the described marina - related property may be subject to State Lands Commission approval. VI. PIPELINE RIGHT-OF-WAY CDC shall use its best efforts to assist District in its application for the grant of an easement to District for a pipeline right-of-way for the pipeline formerly covered by a franchise agreement to SDG&E under Ordinance No. 1737 passed by Resolution No. 13,496 and 13,497 on file in the Office of the City Clerk, City of National City. The form of easement or franchise shall be agreed upon between City, CDC and the District. VII. 24TH STREET WIDENING CDC's project to widen 24th Street shall not commence unless and until CDC obtains the appropriate PUC or Caltrans permits, all land entitlements, and all other permits for construction, drainage, outfalls, etc. as needed for construction of the project. VIII. REMOVAL OF STRUCTURES CDC shall promptly remove the buildings on the North side of 24th Street within 90 days after all necessary permits and land entitlements are obtained and relocation of remaining businesses (as required by the Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended) on the north side of 24th Street is complete. IX. NATIONAL DISTRIBUTION CENTER CDC will not oppose District acquiring the National Distribution Center property described in Exhibit I and incorporation of this property into the Port Master Plan. The District will not object to collection of property taxes generated from businesses on the property (possessory interest) by the appropriate taxing jurisdiction. 7 X. BEATY TRUST PROPERTY As described above, CDC is obligated to acquire title to the Beaty Trust Property (Exhibit A, parcel 1). Once CDC acquires title to the Beaty Trust property, title is to be transferred to the District as soon as possible for purposes of the Historic Railcar Plaza Project. CDC will cooperate in the development of this project and use its best efforts to assist District in its applications to the City for a Coastal Development Permit, Building Permit, and Planned Development Permit to construct the project. XI. BUDGET FOR MOU PROJECTS A. The District has previously allocated under the 1997 MOU $9,100,000 for the projects listed on Exhibit H. Exhibit H reflects the current balances available. CDC may use the monies described in Exhibit H for any or all of the MOU projects listed therein as they see fit, except Marina and Marina BCI funds shall only be used for the Marina Project. All funds forwarded by the District for projects listed in Exhibit H, with the exception of the Marina Project, shall be deemed an unsubordinated loan, evidenced by the Master Loan Agreement and Promissory Note as further described in Article XIII herein, and shall be secured with a Deed of Trust. CDC shall notify the District if it reallocates monies from one project to another and cooperate in ensuring that the monies are expended for Public Trust purposes only. CDC shall be responsible for implementing and establishing priorities for all the projects in Exhibit H. District does not warrant that enough funds will be available to complete all the projects in Exhibit H. CDC is solely responsible for any cost beyond the amounts, plus BCI, listed in Exhibit H. B. Notwithstanding Paragraph XIII, A., $400,000 of the monies listed in Exhibit H shall be set aside for use only on the 24th Street Widening Project and shall be disbursed to CDC only for expenses related to the 24th Street Widening Project. However, in the event the cost of the 24th Street Widening Project is less than $400,000, any excess funds may be used for other projects listed in Exhibit H. C. The monies described in Exhibit H shall be increased by the BCI escalator accrued on this money while in District accounts. District shall advise CDC and City of the BCI amounts accrued to these accounts and shall make those funds available for the aggregate 8 budget for all of these projects, except that Marina BCI funds shall only be used for the Marina Project. D. District shall reimburse CDC for any expenses consistent with this MOU which CDC incurs for MOU projects listed in Exhibit H within forty-five (45) days of submittal of CDC's request for reimbursement. CDC shall maintain true, accurate, and complete records to support payment requests for MOU funds. Such records shall include, but are not limited to, a general ledger, vendor invoices, canceled checks, construction inspection documentation, agreements with consultants or third -party contractors, and contractor progress payment billings. These records shall be maintained and made available for inspection and copying during normal business hours either at the CDC offices or at such other location as is agreeable to District. Further, District shall have the right at any and all reasonable times to examine and audit these records, without restriction, for the purpose of determining the accuracy thereof. XII. DEFENSE AND INDEMNITY To the fullest extent allowed by law, CDC shall indemnify and hold harmless the District for all uses of the monies described in Exhibit H against any litigation or claims filed against the District alleging these monies are not being properly spent for a trust purpose or pursuant to Port Act Authority as described in Harbors and Navigation Code, Appendix 2, and Public Trust Doctrine. CDC shall reimburse District for all expenses, including attomey's fees and costs, if any, for any litigation or claims filed against the District alleging these monies are not being properly spent for a trust purpose or pursuant to Port Act authority as described in Harbors and Navigation Code, Appendix 2, and Public Trust Doctrine. XIII. AMENDMENT AND RESTATEMENT OF MASTER LOAN AGREEMENT AND PROMISSORY NOTE The Master Loan Agreement (District Document No. 39455) dated July 23, 1999, and the sample Deed of Trust, attached to the Master Loan Agreement as Exhibit C, and the Promissory Note (District Document No. 39462) dated July 26, 1999 between the District and the CDC are to be amended and restated to conform to this MOU. 9 xv. GENERAL PROVISIONS A. District and CDC agree to cooperate and expedite the processes described above. This MOU shall become effective as of the date below and shall terminate on November 30, 2001, provided that the right of first refusal granted to CDC pursuant to Section V, C.1., shall survive the expiration or termination of this MOU. Any extension of this MOU must be mutually agreed upon in writing by District and CDC prior to August 1, 2001. B. CDC and City acknowledge that some of the expenditures and actions contemplated by this MOU may require the approval of the State Lands Commission. CDC shall cooperate with District in obtaining any necessary State Lands approvals and shall defer to District's decision as to which expenditures require such approvals. DATED: i J U R-e..Y l g� 2000 SAN DIEGO UNIFIED PORT DISTRICT ByT e,4--a- Senior Director, Adm native Services/ Treasurer Appr. -d as to Form: By DEPUTY PORT A,% ORNEY COMMUNITY DEVELOPMENT Approved as to Form: COMMISSION By: "th,et-ilr /d C� By: I EXHIBIT "A" Interstate 5 : SEE 760-106-63 Bo F ftw,( Cleveland Avenue POR. PAR.13 58E. MAP 883-37-2O1.1 1S 22 17 280 1 }..5,-, 11 I z"S , CC1 6 , Ct) I : N 4I,Li3i 415 1 1 t I 1 90 ft1, I,a t L1v u1 I6 Its 1 1 12' t I Harrison Avenue EXHIBIT "B" SAN DIEGO UNIFIED PORT DISTRICT RFP WITHIN CORPORATE LIMITS OF NATIONAL CITY EXHIBIT "C" DATE 25 MARCH 190e SCALE 1.250. LW 664: ROS eaa DRAWING NO. 028-010 Marina Request for Proposals Criteria Proposer must: 1. Submit an Economic Feasibility Study prepared by an independent professional individual or firm with appropriate experience demonstrating viability of proposed development. 2. Have sufficient equity and financing capability to complete project. 3. Have successfully developed a minimum 100-slip recreational boat marina. 4. Have successfully operated a minimum 100-slip marina for at least 3 years or contracted with a marina operator having like qualifications. 5. Have adequate experience and willingness to comply with all project. conditions and any mitigation measures contained in the Final Environmental Impact Report "National City Marina Project and Port Master Plan Amendment," District Document No. 31077. 6. Have clear financial history. EXHIBIT "D" NATIONAL CITY PARCEL 27 32ND STREET Pepper Park EXHIBIT "E" • SAN 01E00 BAY U.S. CAMTNN !TIC- R UNE iNATIONAL CITY MARINE TERMINAL • h SAN DIEGO BAY U3. PIERIKAD UNE S.D.U.P.D. limns BJU(NEAD LINE EXHIBIT "G" MOU PROJECTS Harrison Ave. Extension/24`h St. Widening National City Marina Traffic Signal -Cleveland & Civic Center Dr. TOTALS: CAPITAL DEVELOPMENT PROJECT 32nd Street Extension: $340,0003 REMAINING BUILDING COST INDEX BALANCE AS OF ESCALATOR FUNDS 9/30/99 AS OF 10/31/99 $5,252,394.161 2,409,648.65 150,000.00 $1,012,323.00 469,823.00 25,869.00 $7,812,042.812 $1,508,015.00 1. Includes $50,000 transferred from NC1219 (HDSAP Preparation) 2. This balance may not include District expense liability incurred but not yet deducted. 3. Increase from $260,000 to $340,000 tentatively scheduled for approval at 12/14/99 Board of Port Commissioners meeting. EXHIBIT "H" ' -^ S�Ix National City MarkwTsfn*W - - - / / EXHIBIT "I"