13-0618_BLAS AGUILAR ADOBE FOUNDATION, INC._Memorandum of UnderstandingMEMORANDUM OF UNDERSTANDING BLAS AGUILAR ADOBE NATURE EDUCATION FACILITY (NEF) GRANT PROJECT This Memorandum of Understanding ("MOU") is made and entered into by and between the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("City"), and the BLAS AGUILAR ADOBE FOUNDATION, INC., a California non-profit corporation ("BAAF") on June �­,1 , 2013 (the "Effective Date"). The City and BAAF are sometimes individually referred to herein as a "Party" and collectively as the "Parties." RECITALS A. BAAF is a California non-profit corporation that proposes to use volunteer labor, cash donations, and donated services and materials to construct certain improvements on the City's Blas Aguilar Adobe property (the "Project"). The property is located at 31806 EI Camino Real. The BAAF shall cause the Project to be constructed in accordance with the City Council - approved construction plans and specifications ("P&S") as may be subsequently amended. B. At a duly -noticed City Council meeting held on September 4, 2012, the City approved the preliminary design plans for the Blas Aguilar Adobe Nature Education Facility (NEF) Grant project thereby authorizing the preparation of the construction plans and specifications (P&S) for the proposed project. C. The BAAF has offered to construct certain site improvements on the property including the following elements: i. Reconstruction of the historic well. ii. Reconstruction of the historic "horno" oven. iii. Construction of the board -on -board fence along the northern property line. iv. Installation of all landscape plants including trees, shrubs and groundcover but not including soil amendment, irrigation, or other improvements. D. The Parties desire to enter into this Memorandum of Understanding to further define the relationship between the Parties with respect to the construction of the Project. NOW THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Recitals. The above Recitals are true and correct and are incorporated herein by this reference. 2. Term. The "Term" of this MOU shall commence on the Effective Date and shall remain in effect until June 30, 2014 unless extended or terminated earlier in writing by both Parties. 3. Obligations of BAAF. A. BAAF shall cause the Project to be constructed through appropriately licensed persons or entities as required by the California Building Code (CBC). B. BAAF will either construct or fund the full cost of the Project improvements covered by this MOU including all materials, labor, and supervision, except as expressly provided in this MOU. C. Upon completion of the Project improvements, BAAF shall provide written notice to the City that the Project is completed and ready for acceptance by the City. 4. Obligations of City. A. City shall cooperate with BAAF with respect to any grant applications BAAF may undertake for construction of the Project improvements. B. Upon completion of the Project consistent with the approved construction plans and specifications (P&S), the City shall accept the Project. 5. Insurance. BAAF and any subcontractor employed by BAAF ("Insureds") shall, at their sole cost and expense, procure and maintain in effect in full force and effect throughout the term of this MOU, Commercial General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the access and activities contemplated by Insureds. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this MOU or the general aggregate limit shall be at least twice the required occurrence limit. Prior to initiating any construction on the Property, Insureds shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insured's as respects each as to liability arising out of activities performed by or on behalf of Insureds, including products and completed operations of Insureds or automobiles owned, leased, hired by Insureds. The coverage shall contain no special limitations on the scope of protection afforded the City, its officers, employees, or agents, not applicable to additional insureds in general. The insurance shall provide ["tail"] coverage for a period of ten (10) years. 6. Indemnification/Release Hold Harmless. A. From commencement of the Project and until acceptance of the Project by the City, BAAF shall indemnify, defend (with counsel reasonably acceptable to the City), protect and hold harmless City and its managers, directors, officers, and employees (collectively, "City Parties") from and against any and all claims, demands, judgment, actions, damages, losses, penalties, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, (the "Claims") whether based on personal injury, property damages, negligence, nuisance, trespass or pollution, arising at any time during the construction of the Project as a result (directly or indirectly) of or in connection with BAAF's access or use of the Property pursuant to this MOU, or the conduct of BAAF's activity, work, or things done, permitted or suffered by BAAF, in or about the Property pursuant to this MOU, except to the extent caused by City's active negligence or willful misconduct. 2 B. After acceptance of the Project by the City, the City agrees to release and hold harmless BAAF, and their respective officers, directors, members, managers, employees, agents or representatives for any liability from any Claims arising from the BAAF's work on the Project pursuant to the MOU Agreement except such indemnification shall (i) be secondary to the extent that such Claims are covered by insurance provided by Section 5 and all such coverage must be exhausted before any indemnity or defense obligation arises, and (ii) not extend to the intentional misconduct or gross negligence of any indemnified party. 7. Termination. This MOU may be terminated by either the City or by BAAF for material breach of the terms of this MOU. Prior to termination of the MOU pursuant to this Section, the party wishing to terminate this MOU for material breach (the "Terminating Party") shall provide written notice of the material breach to the other party or parties (the "Breaching Party"). The Breaching Party shall have a period of 30 days to cure such material breach, provided however, that if the nature of the material breach is such that more than 30 days are reasonably required for its cure, then it shall not deemed to be a material breach if the Breaching Party commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. If the Breaching Party fails to cure such material breach within the time permitted under this Section, then the Terminating Party may terminate this MOU for cause after such cure period has elapsed. 8. Miscellaneous. A. Entire Agreement, Waivers, and Amendments. This MOU incorporates all of the terms and conditions, and supersedes all negotiations and/or previous agreements between the Parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this MOU must be in writing and signed by the appropriate authorities of the Party. A waiver of the breach of the covenants, conditions or obligations under this MOU by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this MOU. Any amendment or modification to this MOU must be in writing, and must be executed by the appropriate authorities of the City and the BAAF. B. Further Assurances; Mutual Cooperation. The Parties shall perform such further acts, including execution of documents, as are necessary to effectuate the intent of this MOU. C. Approval Authority. The persons executing this MOU on behalf of the Parties hereto warrant that they are duly authorized to execute this MOU on behalf of said Parties, and that by so executing this MOU the Parties hereto are formally bound to the provisions of this MOU. D. Interpretation; Governing Law. This MOU shall be construed according to its fair meaning. This MOU shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this MOU. E. Severability. If any provision of this MOU is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. F. Time of Essence. Time is made of the essence with respect to the performance by the City and BAAF. 3 G. No Third Party Beneficiaries. The Parties intend and agree that no third parties shall have any rights to enforce any provision of or any obligation created by this MOU. H. Notice. Any written notice given under the terms of this MOU shall be either delivered personally or mailed certified mail, postage prepaid, addressed to the party concerned, as follows: To City: City of San Juan Capistrano Attn.: City Manager 32400 Paseo Adelanto San Juan Capistrano, CA 92675 With a copy to: Hans Van Ligten Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92628 To BAAF: Blas Aguilar Adobe Foundation, Inc. Attn.: David Belardes 31805 EI Camino Real San Juan Capistrano, CA 92675 I. Counterparts. This MOU may be executed by the Parties in counterparts, which counterparts shall be construed together, and have the same effect as if all of the Parties had executed the same instrument. [Signature page follows.] 4 IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the date first set forth above. CITY OF SAN JUAN CAPISTRANO, a Califorr" m `'icipal corporation By: AA, 5e� Name: .Eg Its: 0 City APPROVED AS TO FO f Han n'-6gten, Oity-Attorne BLAS AGUILAR ADOBE FOUNDATION, INC. a California nonprofit corporation By: �_ k Name: David Belardes Its: President 5