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HomeMy WebLinkAbout2008 CON CDC San Diego MTS - Bay Marina Drive Widening� COPY MTS Doc. No. S200-08-354 ADM 160.2 (PC 91013) AGREEMENT BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM, THE CITY OF NATIONAL CITY, AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY THIS AGREEMENT ("Agreement") between the San Diego Metropolitan Transit System, a California public agency ("MTS"), the City of National City, and the Community Development Commission of the City of National City, a municipal corporation and community development commission (collectively "City"), for development review, approval, and construction oversight of certain improvements associated with the Bay Marina Drive Widening Project ("Project") is hereby made and entered into this "a C I" day of AR `2008 ("Effective Date") by and between MTS and City. WITNESSETH WHEREAS, MTS is a public agency operating public transportation in the County of San Diego; WHEREAS, City is the lead agency of the Project; WHEREAS, City desires to gain approval from MTS of the plans and specifications for the construction of certain improvements relating to the Project; WHEREAS, MTS desires to cooperate with City and outline the requirements for cost recovery for MTS's review, approval, and construction oversight efforts; NOW, THEREFORE, in consideration of the mutual covenants herein, MTS and City hereby agree as follows: 1. City shall submit plans and specifications for review and approval to MTS for all improvements affecting MTS facilities. All technical supporting documentation required by MTS to approve the plans shall be furnished to MTS upon request. Plans and specifications shall include detailed construction sequencing information and direction to the contractors that minimizes disruption to railroad operations. MTS shall not unreasonably withhold its approval of the plans and specifications. 2. In the future, construction of the Project will be the subject of one or more of the following: a Construction Agreement, Right of Entry Permit, and/or other real property agreements, as applicable (collectively, "Property Agreements"), to provide for the existence of new facilities created by the Project. 3. City will deposit a sum of fifteen thousand dollars ($15,000) with MTS as an initial payment for MTS staff expenses, consultant expenses, and other direct expenses accrued in reviewing and approving the Project design. Payment shall be made within 30 days of the Effective Date. 4. City will deposit additional funds with MTS as necessary to maintain sufficient funds to cover MTS's support costs as outlined in Paragraph 3. City will deposit additional funds within 30 days of written notice to City by MTS. In no event shall the total amount deposited by City exceed $25,000. At such time as MTS should require funds in excess of $25,000 to complete its services, the parties may mutually agree to amend this Agreement to increase the not -to -exceed amount. 5. MTS will credit any excess deposited funds to future Property Agreements with City covering the construction of the Project. Any deposited funds remaining after the construction of the Project will be refunded to City according to the terms and conditions of the Property Agreements. 6. This Agreement shall terminate if City fails to provide MTS with sufficient funds as outlined in Paragraph 4. MTS shall provide written notice to City of termination and provide City 30 days to deposit the requested funds. If this Agreement is terminated, any excess deposited funds will be retained by MTS. 7. City may also terminate this Agreement by giving 30 days' written notice to MTS and depositing any funds necessary to cover MTS's support costs up to the effective date of termination over and above the funds previously deposited. If there is an excess balance at the time of termination, MTS will refund the remaining balance after all MTS costs are paid. 8. Nothing in this Agreement shall be deemed or construed to create a partnership or joint venture between MTS and City. 9. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 10. This Agreement may not be modified, amended, or otherwise changed unless by an amendment in writing executed by both MTS and City. This Agreement is the complete agreement between MTS and City, and there are no promises, undertakings, representations, or warranties relative to the Agreement that are not expressly set forth herein. 11. This Agreement shall be interpreted according to the laws of the State of California. 12. MTS and the City agree that every effort shall be made to resolve any dispute arising under this agreement informally through their designated representatives. If the informal efforts are unsuccessful, then either party may request mediation by submitting a written request signed by an officer with the authority to bind the City or MTS. Within five (5) business days of the request of any party, the parties shall mutually agree on the person or alternative dispute resolution agency to conduct the mediation. If the parties are unable to agree on the person or alternative dispute resolution agency to conduct the mediation, the initiating party may arrange for the office of the American Arbitration Association in downtown San Diego, California, to perform the mediation. The initiating party shall then schedule the mediation so that it is conducted within fifteen (15) business days of the mediator's appointment. The costs of the mediation and fees of the mediator, if any, shall be borne by the requesting party. Any dispute not resolved through the mediation may proceed to litigation in a court of competent jurisdiction in the County of San Diego, State of California, unless the parties agree in writing to submit the dispute to binding arbitration. Page 2 of 3 MTS Doc. No. S200-08-354 The duties and obligations imposed by this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. No action or failure to act by MTS or City shall constitute a waiver of any right or duty afforded any of them under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder except as may be specifically agreed to in writing. IN WITNESS HEREOF, the parties hereto have caused this Agreement to be executed on the date first above written. AGREED TO AND ACCEPTED: THE CITY OF NATIONAL CITY APPROVED AS TO FORM: (A Municipal Corporation) By: By: Name: Brad Raulston Name. George H. Eiser, 11I Title: Executive Director Title: Legal Counsel SAN DIEGO METROPOLITAN TRANSIT SYSTEM By: Name: Title: E O JGardetto/ AG-S200-08-354.NAT CITY & CDC.TLOREN.doc APPROVED AS TO FORM: By: Name: Title: Page 3 of 3 MTS Doc. No. S200-08-354 / April 30, 2008 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 Ms. Teresa Gonzalez -White Contracts Specialist Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101-7490 Dear Ms. Gonzalez -White, On April 29, 2008, an Agreement was entered between the Community Development Commission of the City of National City and Metropolitan Transit System. We are enclosing for your records a fully executed original agreement. Sincerely, 4, Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Rccy-clr.1 Paper