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HomeMy WebLinkAboutAgr 2012-04-30 (Town of Tiburon / City of Belvedere)SUPPLEMENTAL AGREEMENT Between Town of Tiburon and City of Belvedere Regarding Ned's Way Facility, Tiburon This Supplemental Agreement ("Agreement") is entered into by the Town of Tiburon (the "Town") and the City of Belvedere (the "City"), together the "Parties", on this 30th day of April, 2012. Recitals 1. WHEREAS, the Town and the City created the Belvedere-Tiburon Joint Recreation Committee ("BUR") pursuant to a Joint Powers Agreement ("JPA") executed in June of 1975 and most recently amended on October 8, 2001. The BUR provides programs and services on the Tiburon Peninsula for the residents of the Parties. 2. WHEREAS, BTJR has rented space at local Reed School District school sites, most specifically for after-school programs. Recently, space has become limited at some of the sites. BTJR is facing difficulty maintaining consistent and suitable space for its programs and requires additional programmable space to satisfy and expand local programming to meet the growing needs of the Tiburon Peninsula. 3. WHEREAS, on October 11, 2010, the Parties entered into an Agreement providing that the City would make annual payments to the Town of $30,000 if the Town would use its monetary, land, and staff resources to construct an appropriate structure for BTJR's use ("Original Agreement"). 4. WHEREAS, the Town has developed and is considering a plan to create a facility of approximately 4,800 square feet of building for office, classroom, and related uses, parking for approximately 22 vehicles, and an outdoor play area on Town-owned land located at 600 Ned's Way in Tiburon (the "Facility") for BTJR use, but the project has proven to be considerably more costly than the Parties contemplated at the time of the Original Agreement. The Town's competitive bidding process produced a lowest responsive bid of $1.68 million ("Construction Bid"). 5. WHEREAS, to partially offset the increased costs, the Town has requested and the City has agreed to provide additional financial support for the Facility as set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the City and the Town agree as herein set forth: NEWS WAY' FACILITY' SUPPLEMENTAL AGREEMENT, APRIL 2012 PAGE 1 OF 5 Agreement 1. CONTRIBUTION FROM THE CITY. The City shall contribute the following payments. A. The City will -pay a $250,000 (two hundred fifty thousand dollars) contribution ("Base Contribution") for the costs of the Facility, including, without limitation, design, engineering, construction management, and construction costs (collectively, "Construction Costs"). After the Town has processed and paid any invoice for Construction Costs, the Town will send to the City a written request for payment of 25% of the amount paid by the Town, with appropriate documentation reasonably satisfactory to the City, until the City has fully paid the Base Contribution. The City shall tender the requested payment within 30 days of receipt of the Town's request. B. In the event that any contingencies related to the construction of the Facility arise during the construction phase of the project that obligate the Town to make payments higher than those set forth in the Construction Bid or that the Town believes, in its sole discretion, are necessary and appropriate for the construction of the Facility under the construction contract in place at the time of execution of this Agreement, the City shall also pay 25% of said contingency expenses ("Contingency Contribution") up to a maximum of $50,000 (fifty thousand dollars). As such expenses are incurred, the Town will send to the City a written request for payment of any Contingency Contribution owing under this Agreement, with appropriate documentation reasonably satisfactory to the City. The City shall tender the requested payment within 30 days of receipt of the Town's request. C. The Town's delay in submitting requests for payment to City shall not operate as a waiver of any payment due under this Agreement provided that Town submits all requests within one year of the Town recordation of the notice of completion for the Facility. D. In entering into this Agreement, the Parties contemplate that the Facility will be available for BTJR's use for a minimum of 35 years. The Town reserves the right, in its sole reasonable discretion, to decide that construction of the Facility is not an appropriate use of Town resources or, after constructing the Facility, to decide that BTJR's use of all or a portion of the Facility is not in the public's best interest. In the event that the Town does not begin construction of the Facility within five years, this Agreement will be null and void. In the event that construction of the Facility is abandoned for any reason during the construction phase of the project, the Town shall refund the City the full amount of the City's Contributions paid pursuant to this Agreement at the time of the abandonment of construction. In the event that the Town constructs the Facility but decides to terminate or reduce BTJR's use thereof, or if BTJR's use of the Facility is terminated or reduced for any other reason, after less than 35 years, the Town shall refund the City's Contributions on a prorated basis as set forth below: NED'S WAY FACILITY SUPPLEMENTA[. AGREEMENT, APRIL 2012 PAGE 2 OF 5 i. The Parties will calculate the amount of any refund by (a) dividing the total amount of the City's Contributions, Base and Contingency, by 35; (b) subtracting from 35 the number of years that the Town allowed BJTR to use the Facility; and (c) multiplying the quotient from operation (a) by the difference from operation (b). ii. Example: If the Contingency Contribution is $10,000, the City's total Contributions will equal $260,000. $260,000 = 35 = $7428.57. If the Town allowed BTJR to use the Facility for 20 years, the amount of refund that Town will owe the City will be (35-20) x 7429 or $111,429. iii. Should a portion of the building be withdrawn from BTJR use, the formula set forth above shall be pro-rated accordingly. 2. ORIGINAL AGREEMENT. The Original Agreement shall remain in full force and effect. 3. NO THIRD PARTY BENEFICIARIES. This Agreement is solely between the Town and the City to promote the interests of their respective residents. No other party, including, without limitation, BTJR, is a third party beneficiary of this Agreement. 4. CONTINUATION OF JOINT POWERS AGREEMENT. This Agreement is subject to the JPA between the Parties as it exists at the time of execution or as it may be amended from time to time. Should either the Town or the City terminate the JPA as set forth in Section 16 of said JPA, this Agreement shall become null and void. 5. MISCELLANEOUS A. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorneys' fees, costs, and expenses incurred. B. The Parties acknowledge that this Agreement does not give the City any ownership or control of the Facility or the property on which it sits. Accordingly, the Town shall release and defend, indemnify, and hold harmless the City and its officers, employees, and agents, from and against, any litigation, claim, or legal proceeding and all losses, liabilities, fines, penalties, damages, or judgments, including attorneys' fees, arising out of or resulting in any way from the Facility, the property on which is sits, or any condition thereof (collectively, "Claims") provided that said Claims arise from the alleged ownership or control of the property from this Agreement, subject to the following exceptions: 1. The Parties contemplate that in the event of a Claim covered by this Section, their interests would be sufficiently aligned to be represented by the same counsel. The Town shall have sole reasonable discretion to select and supervise said counsel, subject to the reasonable approval NEWS WAY FACILITY SI PPLEMENTAI. AGREEMENT, APRIL 2012 PAGE 3 OF 5 of the City. In the event that the Parties' interests are not sufficiently aligned to share counsel, this Section 5.13 shall not apply. 2. Notwithstanding anything in this Agreement to the contrary, this Section 5.13 shall not apply to any Claim against the City for any alleged acts _and omissions other than those based on the alleged ownership or control of the property from this Agreement, including, without limitation, (a) any City use of the Facility; or (b) the City's status as the co-parent agency of BTJR. C. The laws of the State of California shall govern the interpretation, validity, and enforcement of this Agreement. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Marin. D. This Agreement constitutes the entire Agreement and understanding between the Parties and may not be modified orally or in any manner other than by an agreement in writing signed by both Parties. E. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the -Town and the City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. ,,,/N~F ~F TIBURON Dated: it M CITY O E VE E Geral Mayor Dated: SIGNATURES CONTINUED ON NEXT PAGE NEWS WAv FACILITY SUPPLEMENTAL, AGREEMENT, APRIL 2012 PAGE 4 OF 5 SIGNATURES CONTINUED FROM PREVIOUS PAGE APPROVED AS TO FORM: By Ann R. Danforth, Esq. Town Attorney, ? of Tiburon By Robert Ep ein, E City Attorney, City of Belvedere Dates: ~ / ~ Dated: L(! 0 'r ATTEST: DIANE CRANE IACOPI TIBURON TOWN CLERK ATTEST: LESLIE CARPENTIERS BELVEDERE CITY CLERK NED'S WAY FACILITY SUPPLEMENTAL AGREEMENT, APRIL 2012 PAGE 5 OF 5