DATE: June 21, 2006
TO: Board of Supervisors
SUBJECT: APPROVAL OF MEMORANDUM OF AGREEMENT BETWEEN COUNTY AND DEPARTMENT OF THE NAVY RELATED TO CONVEYANCE OF LAND CONTAINING STOWE TRAIL TO COUNTY

SUMMARY:
Overview
The historic Stowe Trail is located on the eastern portion of Marine Corps Air Station Miramar and links the County’s Goodan Ranch and Sycamore Canyon Preserves to the north with Mission Trails Regional Park to the south.  On May 17, 2005, the Board of Supervisors unanimously approved funding to initiate the due diligence necessary before the County can take title to approximately 230 acres of land containing this trail.  On January 6, 2006, federal legislation was passed that allows the Department of the Navy to convey the land to the County in exchange for in-kind consideration equal to the value of the land conveyed.  The next step in acquiring the Stowe Trail is approving a Memorandum of Agreement (MOA) between the County of San Diego and the Department of the Navy.  This MOA sets forth the steps that each party will take before the parties enter into a contract for conveyance of the property to the County. 

Today’s action will approve the MOA between the County of San Diego and the Department of the Navy. Under the MOA, the Navy will survey and appraise the property.  The County will prepare the environmental documents and the plans and specifications for a fence project, the in-kind consideration that the Navy requested.  The County will reimburse the Navy for the costs it incurs to prepare the survey, appraisal, and real estate and legal costs.  The County will pay for the preparation of the environmental documents.  
Recommendations

SUPERVISOR DIANNE JACOB:

1. Approve the Memorandum of Agreement Between the County of San Diego and Marine Corps Air Station Miramar of the United States Department of the Navy Regarding Transfer of Stowe Trail Property (Attachment A).
2. Authorize the Director of Parks and Recreation to sign the Memorandum of Agreement and any amendments to the Agreement that do not increase the County’s costs. 

Fiscal Impact
Implementation of the Memorandum of Agreement will result in direct and indirect project costs, including due diligence for land acquisition, preparation of the environmental documents and the value of the in-kind project, which will be determined once the appraisal is complete.

BACKGROUND:
The historic Stowe Trail is located on the eastern portion of Marine Corps Air Station (MCAS) Miramar and links the County’s Goodan Ranch and Sycamore Canyon Preserves to the north with Mission Trails Park to the south.  Because the property is restricted to military use, any recreational use of the trail is trespassing.  Acquisition of the land by the County will open the trail for legal use by the public and will preserve the area as a wildlife corridor between Goodan Ranch and Sycamore Canyon Preserves to the north and Mission Trails Regional Park to the south. 

On May 17, 2005 (Item 1), the Board of Supervisors unanimously approved $365,000 in funding to initiate the due diligence necessary before the County can take title to approximately 230 acres of land containing this trail.  On January 6, 2006 Federal legislation (Public Law 109-163) was passed that allows the Department of the Navy to convey the land to the County in exchange for in-kind consideration equal to the value of the land conveyed.  The Navy decided that it wants a fence constructed along a portion of the MCAS Miramar boundary as the in-kind consideration for conveyance of the property. 
 
The next step in acquiring the Stowe Trail is approving a Memorandum of Agreement (MOA) between the County of San Diego and the Department of the Navy.  The MOA sets forth the steps that each party will take before the parties enter into a contract for conveyance of the property to the County. 

According to the MOA, the Navy will survey the property, prepare an appraisal for the property and complete a questionnaire for the Phase I hazardous materials assessment of the property.  The County will prepare the environmental documents for the proposed fence project.  These documents will comply with both the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The County will also prepare a Phase I hazardous materials assessment for the property and will prepare the construction plans and specifications for the fence project. 

The County will reimburse the Navy for the costs it incurs for the survey, the appraisal, the real estate and legal costs.   The County will also pay for the costs to prepare the environmental documentation and for the County’s real estate and related legal expenses. Staff will determine the costs once it has sufficient information. 

The Navy indicates that it is very interested in and committed to following through, in good faith, with the provisions of the MOA, even though both parties agree that this is based upon a mutual understanding and not subject to any contractual enforcement.  Because this MOA is not a formal contract, the County would be in the position to “terminate” the MOA at any time if it appears that the cost to prepare the environmental documents is too high or that the value of the Stowe Trail property significantly exceeds what the County expected.  Such action may be taken by the County without incurring any contractual liability because of the mutual understanding nature of this MOA. 

As noted above, the Navy wants the County to construct a fence as the in-kind consideration for the conveyance of the Stowe Trail property.  The value of the fence must be equal to the value of the property to be conveyed.  Under the MOA, the Navy agrees that the value of the fence project will include not only the construction costs (materials, labor and equipment), but also the costs the County incurs to prepare the construction plans and specifications and costs for permits, mitigation, mitigation monitoring and project management for both the County and the Navy.

The MOA states that after the environmental review process has been completed and the Navy approves the fence project (a Record of Decision), the parties intend to enter into a real estate contract to convey the Stowe Trail property for the in-kind consideration (fence project).  Once the Navy and the County have entered into the real estate contract, the County would put the fence construction contract out to bid and would enter into a contract with the lowest responsive, responsible bidder.   The MOA also states that after the Navy accepts the completed fence project, the Navy will begin the process to transfer title to the property to the County.  The parties will discuss the terms for the real estate contract after the MOA has been approved.

The ultimate goal of acquiring this corridor is truly a rare opportunity. Returning the Stowe Trail and surrounding habitat to the people of San Diego County creates a win-win situation for both the public and the Marine Corps.

I urge your support.

Respectfully submitted,

                                                   
DIANNE JACOB
Supervisor, Second District

MEMORANDUM OF AGREEMENT BETWEEN
THE COUNTY OF SAN DIEGO AND
MARINE CORPS AIR STATION MIRAMAR OF
THE UNITED STATES DEPARTMENT OF THE NAVY
REGARDING TRANSFER OF STOWE TRAIL PROPERTY

This Memorandum of Agreement (MOA) between the Marine Corps Air Station Miramar United States Department of the Navy (DON), and the County of San Diego, a political subdivision of the State of California (County), is entered into on ______, 2006.  

WHEREAS, the Stowe Trail is an historic multi-use trail, that lies within the boundaries of Marine Corps Air Station Miramar (MCAS Miramar), under the jurisdiction of the DON and is restricted to military use; and

WHEREAS, on January 6, 2006, Public Law 109-163 was signed into law authorizing DON to transfer the approximately 230-acre property from the boundaries of MCAS Miramar, to accept in-kind consideration from the County for the value of the property conveyed and to permit the County to preserve the entire property as a public passive park/recreational area known as the Stowe Trail (Property); and 

WHEREAS, the Property provides a wildlife corridor connecting the County’s Goodan Ranch and Sycamore Canyon Preserves in the north to the City of San Diego’s Mission Trails Regional Park and Santee Lakes Recreational Area in the south; and

WHEREAS, County is willing provide in-kind consideration (construction of the fence project as described in Section VI. of this MOA)

WHEREAS, the parties wish to set forth their respective obligations and the procedures and schedule related to the conveyance of the Property and construction of the in-kind project.   

NOW, THEREFORE, DON and County mutually agree and understand as follows:

I.   Obligations of Conveyance. 
DON and County will carry out Property conveyance actions and County will fund or reimburse DON for costs incurred in carrying out the conveyance of the Property, including appraisal costs, survey costs, costs related to environmental documentation, and other administrative costs related to the conveyance, as listed in Exhibit A.

II.   Establishment of Property Boundaries. 
Within five months from the execution date of the MOA, County and DON will determine the Property boundaries as follows:

1. DON shall survey and map the Property in accordance with DON procedures which incorporate the North American Datum of 1983 and California Public Resources Code sections 8801 through 8819.  The survey shall include preparation of a topographic map that covers 20 feet on each side of the new proposed MCAS Miramar property line.   Within 30 business days from the date of receipt, County shall provide written comments to DON on the draft legal description and draft topographic map which DON shall review and consider for incorporation into these documents. DON shall provide digital and paper versions of the final survey, legal description, topographic map, field notes, calculations, and project summary supporting the accuracy of proposed Property boundaries.  Within 30 business days of receipt of the final survey and supporting documents, County shall review and submit written comments to DON, which DON shall review and consider for incorporation into the final survey to the County.
2. DON shall also prepare a Record of Survey and file it with the County Surveyor in the Department of Public Works.  

III.   Establishment of Property Value.
County and DON will establish a value for the Property within 5 to 7 months from the date of execution of the MOA as follows:

1. Upon execution of this MOA, DON shall obtain an appraisal in accordance with DON procedures and will inform County of the cost of the appraisal in advance of commencing the appraisal.  A written set of assumptions and information related to the Property will be agreed to by the County, DON and the appraiser before commencement of the appraisal.
2. Concurrent with preparation of the appraisal, County, at its cost, will conduct a Phase I hazardous materials assessment of the Property.  Upon execution of this MOA, DON will provide County with all reports and other information DON has regarding unexploded ordnance on or near the Property for County to use in preparing the Phase I assessment.  DON will complete a Transaction Screen Questionnaire provided by County regarding the Property, and DON will authorize County to enter the Property to conduct the Phase I assessment. 
3. After the appraisal has been completed, County and DON shall meet and negotiate in good faith to reach an agreed fair market value of the Property. 
4. If the parties do not reach agreement on the fair market value of the property or if County determines that the results of the Phase I hazardous materials assessment are unacceptable, either party may terminate this MOA on written notice to the other party.

IV.    Environmental Documentation and Mitigation.
DON will be the lead agency under the National Environmental Protection Act (NEPA) for the environmental analysis of the Federal Action to convey the Stowe Trail Property and to accept security fencing as in-kind consideration for the value of the property conveyed, however, the County will prepare a document that will conform with NEPA, Department of Defense guidelines and a separate document that will conform with the California Environmental Quality Act (CEQA). 

1. The parties will closely coordinate and cooperate on the preparation of the environmental documents; however, DON and County will be responsible for each respective agency’s requirements under NEPA and CEQA for preparation, review, public noticing and approval of the draft and final environmental documents.
2. Initiation of the environmental review shall begin after the parties agree on the fair market value of the Property and DON provides County with the written description of the fence project as specified in section V a i 1   below. The estimated schedule for preparation of the environmental documents is shown in Exhibit B. The County, with input from DON, will prepare the environmental documents and conduct environmental review to DON standards as more fully set forth below.
3. County will retain a consultant to prepare the environmental documents.  If County determines that the cost to prepare the environmental documents is too high, County may terminate this MOA on written notice to DON.
4. After receiving an administrative draft of the environmental document, DON and County will have 30 days to review the document and submit written comments to the consultant.
5. After receiving the second administrative draft of the environmental document, DON and County will have 15 business days to review the document and submit written comments to the consultant. This same procedure for review and comment shall continue for each successive administrative draft of the environmental documents until the consultant has addressed all of the comments from County and DON. 
6. Once a NEPA/CEQA consultant has been hired, the parties may modify this section of the MOA with a letter signed by both County and DON.                            
7. DON shall authorize County and its consultant to enter the Property during the period when the consultant is preparing the environmental documents.
8. Costs of mitigating environmental impacts associated with construction of the fence shall be paid by the County and shall be included in the determination of the final value of the fence.  If one or more mitigation measures requires the dedication of land for habitat restoration or other environmental mitigation purposes, the mitigation land shall not be located in the boundaries of MCAS Miramar.  Costs of mitigating environmental impacts associated with the use of the trail following conveyance of the Property to County shall be paid by the County and shall not be deducted from the value of the Property.  If one or more mitigation measures requires the dedication of land for habitat restoration or other environmental mitigation purposes, the mitigation land shall not be located within the boundaries of MCAS Miramar.

V.  Real Estate Contract
Upon completion of the environmental review process described in this MOA and the execution of a Record of Decision, the parties intend to enter into a real estate contract to convey the Property for the in-kind consideration described below. 

VI.  In-Kind Consideration
DON intends to accept security fencing as in-kind consideration for the conveyance of the Property to County.  The value of the project shall include the costs for the items listed under Project Administrative Costs and Project Construction Costs in Exhibit C.  The value of the project shall be equal to the agreed fair market value of the Property to be conveyed.  DON can change the type and scope of the project, but all money expended before the change and money expended after the change pursuant to an existing contractual obligation, will be calculated as part of the value of the project. 

1. Fence Project.
   The Fence Project will proceed as follows:
   
   
   1. Plans and Specifications
      
      
      
      
      1. Within 30 days of establishing the Property value, DON shall provide County with a written description of the fence project including a map showing the location of the proposed fence and the type, length, and height of the fence.  DON shall also provide County with written authorization for County and its consultants and contractors to enter the Property. This authorization shall include contractors that may want to bid on the project and consultants that may want to respond to County solicitations for the project. 
      2. County or its consultant shall prepare construction plans and specifications for the fence project in accordance with Standard Specifications for Public Works Construction, aka the “Greenbook,” and a written estimate of the cost for the fence.  The estimate of the cost for the fence shall include all construction costs, including materials, labor and equipment, and shall also include a construction timeline and construction options/alternatives for the bid document.  The County is responsible for costs related to the preparation of the plans and specifications for the fence project, as well as the costs to construct the fence, as shown on Exhibit C.
      3. Within 60 days after receiving the plans and specifications and cost estimate for the fence from the County, DON may provide written comments and/or questions regarding the plans and specifications and cost estimate.  Within 30 days of receipt of DON comments, the County shall respond in writing to DON’s questions and comments and make any needed changes to the plans and specifications and cost estimates.
      4. DON and County shall agree on the plans and specifications, as well as a final cost estimate.
         
         
   2. Construction Contract
      
      
      
      
      1. The County will give the DON a draft of the bid book based on the plans and specifications for constructing the fence project.
      2. Within 15 days of receipt of the bid book, DON shall provide County with comments and questions. 
      3. Within 10 business days of receipt of DON’s comments, County will advise DON of any changes made to the bid book.  DON will have five business days to respond to County regarding the changes. 
      4. Within 3 business days of receiving DON’s second set of comments, County will advise DON if additional changes have been made.  After so advising DON, or if no comments are received from DON, and after execution of a real estate agreement between DON and County for conveyance of the Property in exchange for the in-kind consideration, County will commence with the bidding process and award a construction contract to the lowest responsive, responsible bidder.  The County will provide DON with the name of the firm selected.
      5. County will provide DON with monthly reports by electronic mail on the status of the construction work.  The reports shall include a description of the work completed and a projection of whether the project will be completed on time and on budget.  After construction of the fence has been completed, County will invite DON to join County to inspect the work completed and, if necessary, prepare a “punch list” of items remaining to be completed.  County shall promptly notify DON in writing after the construction of the fence has been completed and the contractor has completed any “punch list.”   DON shall inspect the fence project and notify County when DON agrees that the fence has been completed in accordance with the plans and specifications.  DON shall then accept the project as complete for the Federal action to convey the Property and accept the in-kind consideration in accordance with this MOA.
      6. Upon acceptance of the fence project, DON shall commence process to transfer title of the Property to the County as specified in the real estate contract.  Upon completion of the process, title to the Property shall be transferred to the County. The process is estimated to take four months.
   
   
2. Reimbursement for Administrative Costs.
   In accordance with Public Law 109-163, in addition to the in-kind consideration, County will reimburse DON for costs incurred carrying out the conveyance and implementing the receipt of in-kind consideration, including appraisal costs, survey costs, costs related to environmental documentation, and other administrative costs related to the conveyance and receipt of in-kind consideration as follows:
   
   
   
   
   1. Administrative services that are eligible for reimbursement are shown on Exhibit C. One or more of these costs may be increased, but only if both parties agree in writing to the increase before the DON incurs the increased cost. 
   2. No later than 90 days after title to the Property is transferred to County, DON shall submit the required documentation to the County's administrator for reimbursement.  DON may submit this documentation on a monthly or quarterly basis.   County shall not be obligated to reimburse DON for the costs of administrative services that exceed the estimated amounts specified in Exhibit C unless DON obtained County’s prior written approval to exceed those amounts.  To be eligible for payment, the documentation shall include a copy of invoices or receipts for administrative services documenting work performed on this project, including dates of work performed and amount due for the work. County’s administrator will review DON’s expenditure documentation and will approve payment for all costs for administrative services that are properly documented and that comply with this MOA.  County shall have no obligation to reimburse DON for any expense for which documentation is not provided by the 90-day deadline specified above.
   3. No later than 60 days following County’s receipt of DON’s documentation, County shall pay DON for approved administrative services.
      
      
3. In-Kind Project Costs.
   The County shall pay the Fence Project Administrative Costs and Fence Project Construction Costs as detailed on Exhibit C, but only up to an amount that does not exceed the agreed fair market value of the Property.

VI.  Exhibits. 
Exhibit A lists the obligations of DON and County.  Exhibit B describes the Project Schedule.  Exhibit C is a description of costs for administrative services and the fence project.

VII.  Term of MOA. 
The term of this MOA shall be 5 years starting on the date first written above.  The schedules and deadlines specified in this MOA may be changed with the written approval of both parties.

VIII.     Transfer title to County. 
DON shall transfer title to the Property to County promptly after DON completes the Congressional Notification (Title 10) process.  The transfer of title is not complete until County accepts the deed.

IX.       Administrator of MOA. 
The Commanding General or designee at MCAS Miramar shall administer this MOA on behalf of DON.  The Director of Parks and Recreation, or designee, shall administer this MOA on behalf of County.

X.        General Provisions. 

1. Exhibits.  All exhibits referred to herein or attached hereto are incorporated by reference.
2. Further Assurances.  The parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required to carry out the provisions of this MOA and the intentions of the parties.
3. Modification or Waiver.  No modification, waiver, amendment or discharge of this MOA shall be valid unless the same is in writing and signed by both parties.
4. No Other Inducement.  The making, execution and delivery of this MOA by the parties hereto have not been induced by any representations, statements, warranties or agreements other than those expressed herein.
5. Notices.  Notice to either party shall be in writing and either personally delivered or sent by mail, postage prepaid, addressed to the administrator of the party to be notified at the address specified herein.  Any such notice shall be deemed received on the date of personal delivery to the administrator or three business days after deposit in the U.S. Mail.
   
               County:                                                     DON:
               Director, Parks and Recreation                    Mr. Jack Harkins, MCAS Miramar
               5201 Ruffin Road, Suite P                           P.O. Box 452007
               San Diego, CA  92123                                San Diego, CA  92145-2007
   
   
6. Time Period Computation.  All periods of time referred to in this MOA shall include all Saturdays, Sundays and state or national holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice or approval falls on a Saturday, Sunday or State or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or State or national holiday.
7. Not a Contract.   This MOA is a statement of mutual understanding regarding an agreed-upon course of action to be taken in carrying out actions toward the conveyance of the Property in exchange for the in-kind consideration.  This MOA is not a contract.  The DON signatory to this MOA is not a contracting officer.  Nothing in this MOA binds the United States to obligate or expend federal appropriated funds. 
8. Termination.  Either party may terminate this MOA on 60 days prior written notice to the other party

MARINE CORPS AIR STATION MIRAMAR
UNITED STATES DEPARTMENT OF THE NAVY

By:  __________________________________

       Colonel Paul C. Christian, U. S. Marine Corps
       Commanding Officer, Marine Corps Air Station Miramar


COUNTY OF SAN DIEGO

By:  _______________________________
            Renée E. Bahl,
            Director of Department of Parks and Recreation

EXHIBIT A
Obligations of DON and County

1. If survey year is deemed unacceptable to Fish & Wildlife Service this schedule would be postponed by one year.
2. Quino checkerspot butterfly surveys are valid for one year.
3. Required if take of listed species, i.e., California gnatcatcher, Quino checkerspot, fairy shrimp.

EXHIBIT C
COSTS PAID BY COUNTY

In-Kind Consideration

Note:

County will also pay for the costs to prepare the NEPA/CEQA documents, including environmental surveys, and for County’s real estate and legal expenses.  These expenses are in addition to those included as in-kind consideration.