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HomeMy WebLinkAboutNorth Coast Railroad Authority (NCRA) 2015-03-11AJ 0, C Lf tS" I &7 Memorandum of Understanding Between NORTH COAST RAILROAD AUTHORITY and CITY OF UKIAH THIS MEMORANDUM OF UNDERSTANDING ("MOU"), is entered on March 11, 2015 ("Effective Date") in Ukiah, California, by and between North Coast Railroad Authority ("NCRA'), a public authority created by the North Coast Railroad Authority Act (Cal Gov't Code §93000 et seq.) and the City of Ukiah ("City"), a general law municipal corporation, NCRA and City may be called "a Party" in this MOU. Collectively, NCRA and City are called "the Parties." in this MOU. RECITALS 1. The City and its former Redevelopment Agency have expended substantial effort and funds to assist NCRA in developing the Ukiah Railroad Depot Property, consisting of approximately 11 acres, known as Mendocino County Assessor's Parcel Numbers ("APN") 002-232-12, 13 and 002- 282-18, 19, located South of East Perkins and West of Leslie Streets in Ukiah, California ("the Property"), as more particularly described in the attached Exhibit A 2. Those efforts and expenditure of funds have assisted NCRA in getting regulatory approval for the clean-up of contamination on a portion of the Property, rehabilitating the historic railroad depot on the Property, getting Public Utilities Commission approval for Clay Street to cross the railroad tracks to access the Property and having the California State Judicial Council of the Courts (JCC), formerly the Administrative Office of the Courts, select a portion of the Property located on APNs 002-282-19 and 002-232-13 ("the Site"), as more particularly depicted and described in the attached Exhibit B, consisting of approximately 4.1 acres, as the location for a new Courthouse to serve Mendocino County. 3. The City continues to work with NCRA to facilitate the full development of the Property by working with NCRA, JCC and other stakeholders to locate the Courthouse on the Site and to assist in designing the necessary infrastructure, including streets and utilities, to serve the Property. 4. The City has and continues to expend effort and funds to assist NCRA in developing the Property, because the Property is located on the primary gateway to the historic downtown, houses the historic train depot, which is leased and managed by the City, and is immediately adjacent to several City -owned parcels and the rail trail. 5. NCRA is vitally interested in the full development of the Property; because of the revenue it will receive from the sale of parcels comprising the Property or other revenues it may generate from the full development of the Property. It will also benefit from attractive and, financially viable development on the Property in the event rail service is restored to serve Ukiah. 5. The purchase of the Site by the JCC is an essential step in the development of the Property. To secure the funding for that purchase, the sale of the Site to the JCC must close. Before that can occur, the actual cost to construct streets, utilities and storm drain facilities, serving the Property, must be determined. In addition, the JCC has indicated the construction of these improvements will need to begin in 2015 in order to accommodate the anticipated Courthouse construction schedule. 6. To satisfy these requirements, engineering is required to develop a design for the extension of Hospital Drive and Clay Street to intersect on the Property and Low Impact Design ("LID") storm drain facilities and utilities to serve the Property and construction documents sufficient to develop accurate engineer's estimates of construction costs. To commence construction in 2015, NCRA must receive permits from the City and to construct the required structure for crossing Gibson Creek a streambed alteration agreement under Fish & Wildlife Code § 1602 from the California Department of Fish and Wildlife ("DFW"), a permit under Section 404 of the federal Clean Water Act ("CWA") from the U.S. Army Corp of Engineers and concurrence under Section 401 of the CWA from the North Coast Regional Water Quality Control Board. 7. NCRA does not have the funds currently to obtain and pay for these necessary engineering services, but recognizes that without them, it will not be able to sell the Site to the JCC which will adversely affect its ability to redevelop the entire Property. 8. Recognizing the importance of retaining the Courthouse in the downtown area of the City and considering the time and investment the City and its former Redevelopment Agency have already expended, the Ukiah City Council, at its meetings on November 5, 2014, and March 4, 2015, has approved contracts, utilizing Rau & Associates and GHD, Inc., totaling $85,844.00, to design and prepare construction documents for these infrastructure improvements and obtain the permits required for their construction. 9. The Parties recognize that there may be additional expenses to complete these engineering tasks before NCRA can sell the Site to the JCC and subsequently generate sufficient funds to repay the City. (Collectively, the costs for the engineering described in Recital No. 6 and referenced in this Recital No. 9 are called "Development Costs" in this MOU.) 10. NCRA has certain priority obligations incurred in connection with developing the Property which it must satisfy before it will have sufficient funds from the sale or development of the Property to repay the City for the Development Costs. Those obligations total $982,000 ("Prior Obligations") and are listed and described in the attached Exhibit C. 11. The purpose of this MOU is to memorialize NCRA's obligation to reimburse the City for the Development Costs from the revenue derived by NCRA from the sale, lease or other use or disposition of parcels comprising the Property ("Property Revenue"), after NCRA has satisfied the Prior Obligations. AGREEMENT 4 In consideration of and reliance upon the above recitals and other valuable consideration, the adequacy and receipt of which is hereby acknowledged, the Parties agree as follows. 1. Reimbursement of Development Costs. NCRA agrees to reimburse the City for Development Costs as further provided in this MOU. The total undisputed Development Costs incurred and paid by City shall be considered a debt owed to the City by NCRA. 2. Documentation of Development Costs. City shall provide NCRA with documents evidencing that the City has incurred and paid Development Costs. NCRA shall have ten (10) days from the date such documents are received to request additional information or dispute the expense. If, within said ten (10) days, the City does not receive a request for additional information or written notice that NCRA disputes the expense, the documented expense shall be deemed approved by MCRA. The City shall respond to all requests for information or disputes within ten (10) days of their receipt. If NCRA continues to dispute a documented expense after it receives the City's response, the Parties shall meet through designated representatives and make their best, good faith effort to resolve the dispute. If the dispute is not resolved within thirty (30) days from the City's response, either party may initiate dispute resolution. 3. NCRA Use of Property Revenue. Until NCRA has reimbursed the City in full for undisputed Development Costs: a. NCRA shall only use Property Revenue to pay Prior Obligations or to reimburse the City for Development Costs. b. NCRA shall account to the City as follows: (1). Within the ten (10) days of its receipt, NCRA shall provide the City with notice that it has received revenue from the sale, lease or other use or disposition of the parcels comprising the Property. The notice shall include the person or entity from whom the payment was received, the amount and the date of receipt. (2) The disposition of each payment reported to the City pursuant to Section 2.b(1), above, including any amounts applied to satisfy in whole or in part a Prior Obligation and the balance of the Priority Obligations remaining after the payment was applied. 4. Miscellaneous. a. Assi ent. Neither parry to this MOU may assign, transfer or convey any interest in this MOU to a third party without the written consent of the other party to this MOU. Should any assignment, transfer or conveyance be approved, an additional or subsequent assignment, transfer or conveyance must also be approved in writing by the Parties. b. Entire MOU. This MOU contains the entire agreement of the parties concerning its subject matter and there are no other promises or conditions in any other agreement 3 whether oral or written. This MOU supersedes any prior written or oral MOUS between the parties. C. Amendment. This MOU may be modified or amended, if the amendment is made in writing, approved by all Parties and signed by authorized representatives of the Parties. d. Severability. If any provision of this MOU shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this MOU in invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, and enforced as so limited. e. Waiver of Contractual Right. The failure of any party to enforce any provision of this MOU shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this MOU. f. Construction of this MOU. The Parties agree and their respective advisors believe that this Agreement is the product of all of their efforts, that it expresses their agreement and that it should not be interpreted in favor of or against either Parry. g. Application of Law, Jurisdiction and Venue and Dispute Resolution. This MOU shall be governed by the laws of the State of California. Notwithstanding Code of Civil Procedure Section 394, the parties irrevocably consent to jurisdiction and venue in the state courts in Mendocino County. Disputes under Section 2 of this MOU shall be resolved by binding arbitration conducted pursuant to Parti, Title 9 of the California Code of Civil Procedure, commencing with Section 1280. h. Paragraph Headings. The paragraph headings contained herein are for convenience and reference only and are not intended to define or limit the scope of this MOU. i. Third Party Beneficiaries. This MOU is for the sole and exclusive benefit of the Parties and their permitted successors and assigns. No other person or entity, private or public, has any rights under this Agreement or any standing to enforce the terms thereof. Notices. All notices required or permitted under this MOU shall be in writing and shall be deemed received when delivered in person, or by overnight courier, fax or email, if receipt has been acknowledged in writing, or 48 hours after deposited in the United States mail, postage prepaid, addressed as follows: Contact Information North Coast Railroad Authority Partner representative: iA kJk-r-'h 5iO!E�ifK C Position: FriC-C u`fi v,A ni+- m* r 4 Address: u 1 q - M IoSvyto`. - }Z� l� h < A a -a Telephone: L-Ilo -'308p Fax: -?0-7 - iI o 3 - 3 ;?S3 E-mail: or ra, o rn S 4n' i sbc,(,- 1 n ::,X • ne+ The_City of Ukiah Partner representative: Position: Address: tom' d�z 'le Telephoner Fax: E-mail: WHEREFORE, the Parties have entered this MOU on the Effective Date. CITY City of Ukiah ne Chambers, xec5e Director ATTEST: Kristine Lawler, City Clerk Approved as to form: Davi apport, City ttorney NCRA NORTH COAST RAILROAD AUTHORITY By: �C A roved to if Christoph r). Ne 0 Q Exhibit 4 Exhibit rrgn All that certain real property lying and being in the City of Ukiah, County of Mendocino, State of California, more particularly described as follows: Any and all lands and any and all interest thereto lying within the following described -real property.- TRACT roperty: TRACT ONE: Commencing at a point on the southerly right-of-way line of East Perkins Street, said point of commencement being the northwest comer of the real property described as Parcel 55 in a deed recorded in Mendocino County Official Records in Book 2328 at Page 251; said point of commencement also shown on a Record of Survey filed in Maps, Drawer 67, Page 50, Mendocino County Records; thence, easterly along the said southerly right-of-way line, North 7858'28" East, 6220 feet; thence, continuing along said southerly right-of-way line, North 78041'04° East, 22.51 feet; thence, leaving the said right -of way line, South 09°30'00" East, 750.43 feet, to the POINT OF BEGINNING; thence, South 09030'00" East, 267.19 feet, more or less, to a point on the westerly projection of the north boundary of the lands of Rancho Del Rey Asset Partners LP, as described in a grant deed recorded January 11, 2012 in Document No. 2012-00465, Mendocino County Records; thence, continuing along the said northerly boundary, North 87°55'00" East, 232.96 feet; thence, leaving said boundary, North 10043'38" West, 294.06 feet; thence South 81 °19'56" West, 224.74 feet, to the Point of Beginning, containing 1.47 acres, more or less. TRACT TWO: Commencing at a point on the southerly right -o€ -way line of East Perkins Street, said point of commencement being the northwest corner of the real property described as Parcel 55 in a deed recorded in Mendocino County Official Records in Book 2328 at Page 251; said point of commencement also shown on a Record of Survey filed in Maps, Drawer 67, Page 50, Mendocino County Records; thence, easterly along the said southerly right-of-way line, North 78°58'28" East, 62.20 feet; thence, continuing along said southerly right-of-way line, North 78041'04° East, 22.51 feet; thence, leaving the said right -o€ way line, South 09°30'00" East, 258.42 feet, to the POINT OF BEGINNING; thence, South 09030'00" East, 438.00 feet; thence, North 8119'56" East, 207.89 feet; thence, North 35034'13"East, 21.69 feet; thence, North 10043'38" West, 389.22 feet; thence, along a curve to the right, with a radius of 430 feet, through a central angle of 6`01'28", and an arc length of 45.21 feet; thence North 04°42'10" West, 117.25 feet; thence, along a curve to the left, with a radius of 370 feet, through a central angle of 0°28'01 ", and an arc length of 3.02 feet; thence South 80'30'00" West, 150.33 feet, thence South 09030'00" East, 128.44 feet, thence South 80'30'00" West, 76.01 feet, to the Point of Beginning, containing 2.63 acres, more or less. A plat of the described parcel is shown on Exhibit B, attached hereto. PTN_ APN_ 002-282-18; PTN. APN. 002-232-12; PTN. APN. 002-282-19; PTN, APN. 002-232-13 R11003.21SurveyANord/Exhibit A -AOC Parcels The basis of bearings for this legal description is between two found monuments as shown on that certain Record of Survey Map, filed for record on May 24, 2000, in Maps, Drawer 67, Page 50, Mendocino County Records. This description of real property was prepared by me, or under my direction, in conformance with the Professional Land Surveyor's Act. George C. Rau R.C.E. 21908 Date My License Expires 09-30-2015 Ri 1003.2iSurveyWord/Exhibit A -AOC Parcels EXHIBIT C NCRA PRIOR OBLIGATIONS The following are obligations of the NCRA that have prior claim to funds derived from the proposed sale of 4.1 acres to the Judicial Council of the Courts. Such proposed sale is to be at fair market value as determined by professional appraisal and approved by the parties. The appraisal has not been received as of the entry into this MOU, causing some variability and the notation of approximate amounts, factored from an assumed appraisal of $2,000,000. Where noted, the percentage listed will be effective. (1.) CA Transportation Comm / CalTrans Repayment of previous advances per agreement (2.) Northwest Pacific Railroad Co. Reimbursement of capital cost and interest for remediation of soil contamination per agreement. Direct cost of $628,288.06. Interest of $24,406 incurred through January 31, 2015. (3.) Guillon Inc. Project management fee to create and oversee project from program inception through sale of JCC parcel. Approximate Total of Prior Obligations 10% of sale proceeds .approx. $196,000 $668,400 including estimated interest to July31,2015 6% of sale proceeds approx. $117,400 $982,000 RECORDING REQUESTED BY AND MAIL. TO: City Clerk City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Document transfer Tax $0.00 and the value is less than $100.00 Signature of City of Ukiah agent determining tax GRANT OF EASEMENT North Coast Rail Authority, ("GRANTOR(S)"), do hereby grant to the City of Ukiah, a Municipal Corporation, ("GRANTEE"), its successors and assigns forever, a non-exclusive easement for public street and public utility purposes, over, under, and through land situated in the City of Ukiah, Mendocino County, California, owned by Grantor and which is described as follows: ALL THAT CERTAIN REAL PROPERTY situated in the County of Mendocino, State of California, more particularly described in Exhibit "A" attached hereto and made a part hereof. Said grant of easement includes the right to use, construct, reconstruct, repair, maintain, and inspect curb, gutter, sidewalk, and other public street appurtenances; storm drain, facilities and public utilities including, but not limited to, water lines; sewer lines; storm drains; electric power lines, poles and appurtenances; street lights; gas lines, and communication lines, poles and appurtences; and the right to erect, maintain, and replace signs and markers warning of the location of said facilities and utilities, and the right to survey within said easement and to place or replace surveying stakes and monuments of a permanent nature therein. Grantor(s) shall not obstruct or conduct any operation which will interfere with the use of such easement for the purposes as stent forth herein. Dated: Grantor Dated: Granton ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Sonoma Ont© —moo Gs— before me, Richard Langhals, Notary Public , (insert name and title of the officer) personally appeared &L c cr who proved to me on the basis of satisfactM evidence to be thesonywhose name r subscribed to the within instrument and acknowledged to me tha /s /t executed t e same in ,Aj1IXr/t (eir authorized capacity(), and that byttp/tl6r signatureA on the instrument the person or the entity upon b alf of which the personacted, execiGted the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. RICHARD LANGHALS WITNESS my hand and official seal. a COMM. #2014733 `m- Uj NOTARY PUBLIC - CALIFORNIA SONOMACOUNTY -� tl My Comm. Expires Mar. 26, 2017 Signatur (Seal) CERTINCATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant of Easement dated from North Coast Rail Authority, to the City of Ukiah, general law municipal corporation, is hereby accepted by order of the undersigned officer on behalf of the City Council pursuant to authority conferred by resolution of the City Council adopted on February 1, 1961, and the Grantee consents to recordation thereof by its duly authorized officer and agrees to be bound by the terms of such Grant of Easement. This document is presented for recordation by the City of Ukiah pursuant to Section 27281 of the Government Code. By: Jane A. Chambers, City Manager Date: ACKNOWLEDGMENT State of California ) ) 5S - County of ) On , before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be theperson(s) whose name(s) islare subscribed to the within instrument and acknowledged to that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERIURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal EXHIBIT "A„ All that certain real property lying and being in the City of Ukiah, County of Mendocino, State of California, more particularly described as follows: A non-exclusive easement for public street and public utility purposes over the area described as follows: Commencing at a point on the southerly right-of-way line of East Perkins Street, said point of commencement being the northwest corner of the real property described as Parcel 55 in a deed recorded in Mendocino County Official Records in Book 2328 at Page 251; said point of commencement also shown on a Record of Survey filed in Maps, Drawer 67, Page 50, Mendocino County Records; thence, easterly along the said southerly right-of-way line, North 78058'28" East, 62.20 feet; thence, continuing along said southerly right-of-way line, North 7841'04" East, 230.58 feet to the POINT OF BEGINNING; thence, continuing along said southerly right-of-way line, North 78°41'04" East,101.34 feet; thence, leaving said southerly right-of-way line, South 35°49'54 West, 30.19 feet; thence, South 9015'35 East, 92.43 feet; thence, along a curve to the right, with a radius of 430.00 feet, a central angle of 040 33'25 an arc distance of 34.20 feet; thence, South 4042'10" East, 117.25 feet; thence, along a curve to the left, with a radius of 370.00 feet, a central angle of 060 01'29", an are distance of 38.91 feet; thence, South 10°43'38" East, 391.65 feet; thence, South 54006'55" East, 244.61 feet; thence, North 81 °19'56" East, 30.62 feet; thence, along a curve to the right, with a radius of 426.00 feet, a central angle of 060 06'32", an are distance of 45.42 feet; thence, North 87026'28" East, 33.02 feet; thence, South 11°03'15" East, 52.58 feet; thence, South 8726'28" West, 40.79 feet; thence, along a curve to the left, with a radius of 374.00 feet, a central angle of 060 06'32", an are distance of 39.88 feet; thence, South 81 '19'56" West, 394.86 feet, more or less, to the western edge of the real property described as Parcel 55 in a deed recorded in Mendocino County Official Records in Book 2328 at Page 251; said point also being on the eastern terminus of East Clay Street as it existed on November 24, 2014; thence, along the said western boundary and eastern terminus, North 11°03'14" West, 54.05 feet; thence, leaving the said wester boundary and eastern terminus, North 81'19'56" East, 273.77 feet; thence, North 35034'13" East, 21.69 feet; thence, North 10'43'38" West, 389.22 feet; thence along a curve to the right, having a radius of 430.00 feet, a central angle of 06° 01'28", an arc distance of 45.21 feet; thence, North 4*42'10" West, 117.25 feet; thence, along a curve to the left, having a radius of 370.00 feet, a central angle of 04° 33' 25", an arc distance of 29.43 feet; thence, North 9°15'35" West, 90.76 feet; thence, North 55°03'16" West, 27.75 feet, more or less, to a point on the southerly right-of-way line of East Perkins Street, and to the point of beginning. A plat of the described parcel is shown on Exhibit B, attached hereto: PTN. APN. 002-282-18; PTN. APN. 002-232-12; PTN. APN. 002-282-19 PTN. APN. 002-232-13 R11003.2/SurveyMtord/Exhibit A -Easement The basis of bearings for this legal description is between two found monuments as shown on that certain Record of Survey Map, filed for record on May 24, 2000, in Maps, Drawer 67, Page 50, Mendocino County Records, This description of real property was prepared by me, or under my direction, in conformance with the Professional Land Surveyor's Act. George C. Rau R.C.E. 21908_ Date My License Expires 09-30-2015 R11003.2/SurveyMord/Exhibit A-Easement Xrefs: 811003.3-Prelim-Layout-Alt-02.dwg( R11003.3-PtatS-REV.dwg Path: 4:\K11003.3\Drawings\Survey\K710U3.d-Kvw_rarcel-txnioit.owg riot nate: heD ZD. 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