13-1001_CLAYTON, RICK A._Release & Waiver of LiabilityRELEASE AND WAIVER OF LIABILITY
This Release and Waiver of Liability ("Release") is executed on this 1st day of October,
2013 by Rick and Nancy Clayton ("Property Owner") and the City of San Juan Capistrano and
its directors, officers, agents, employees, representatives, attorneys, successors, assigns,
subsidiaries, contractors and affiliates (collectively known as the "City").
WHEREAS, the City and Property Owner are parties to that certain "Right of Entry
License Agreement" dated August 15, 2012, by which Property Owner agreed that the City could
access certain portions of the property located at 32151 Via Alicia, San Juan Capistrano, CA
92675 ("Property") in order to construct public improvements; and
WHEREAS, during the course of construction, certain improvements on the Property
were removed. Such improvements are described as:
Four Spring Fed Reinforced Concrete and Cobble Rock Koi Ponds, 800 Square Feet of
4" Thick Concrete Sidewalk and Stairways, Remove and Reinstall Irrigation System, and
Landscaping including 1-12'' dia. Mexican Fan Palm, 1-9' dia. Bottle Brush Tree, 10 -12" dia.
Washingtonia Palms, 1-36" dia. Phoenix Palm, 1-8" dia. Fig Tree, 1-10" dia. Willow, 1-12" dia.
Jacaranda, 1-5 gallon Flax, 6-5 gallon Moraya, 1-5 gallon Oleander, 1-5 gallon New Zealand
Flax, 12-5 gallon Agapanthus and 1-5-gallon Jasmine ("Improvements"); and
WHEREAS, the City has offered to replace or repair said Improvements. However,
Property Owner desires instead to be compensated with a monetary payment in lieu of such
repair or replacement.
NOW, THEREFORE, in consideration of the above-stated recitals, the City and Property
Owner hereby agree as follows:
1. Payment
Within ten (10) business days following full execution ofthis Release, the City shall pay
to Property Owner the sum of $55,000 in full compensation for any damages or losses incurred
to the Improvements by reason of the City's access of the Property for constructing the public
improvements which were the subject of the Right of Entry License Agreement.
2. Release and Waiver
As consideration for payment from the City, the Property Owner does hereby release and
forever discharge the City from and against any and all loss, damage, expense, liability, claim,
injury, settlement, judgment, award, fine, penalty, charge or demand of any nature (hereinafter
collectively referred to as "Claim"), either in law or in equity, which arises due to loss or damage
to the Improvements on the Property, including any Claim which arises, or may hereafter arise,
from the City's activities on the Property conducted pursuant to the Right of Entry and License
Agreement.
668/028428-0002
5914127.2 a09/25113
spouse, children, heirs, representatives, distributes, guardians and assigns. The Property Owner
expressly agrees that this Release is intended to be as broad and inclusive as permitted by the
laws of the State of California, and that this Release shall be governed by and interpreted in
accordance with the laws of the State of California. The Property Owner agrees that in the event
that any clause or provision of this Release shall be held to be invalid by any court of competent
jurisdictioh, the invalidity of such clause or provision shall not otherwise affect the remaining
provisions of this Release which shall continue to be enforceable.
By signing below, the parties have read, understood, and executed this Release as of the
date ftrst writtZ'elow.
Dated: /0 2013
I
Dated: 2013 ------
Dated:
Attest:
668/028428-0002
5914127.2 a08/22/13
2013
~
corporatio
By: ____ +¥~~~~~==~-------
PRO PERT
~11 By: \
k,c_'c_
(print namt)
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City of San Jua
Agen
TO: Karen P. Brust, City~ a
apistrano
ort
10/1/2013
06
FROM: Keith VanDer Maaten, P .. , irector of Public W
Prepared by: Joe Mankawich, Associate Engin r
tilities~
DATE: October 1, 2013
SUBJECT: Consideration of Final Costs and Releases and Waiver of Liability for the
Sun Ranch Drainage Improvement Project (CIP 11503) (Clayton)
(Gartner) (City Council Fiscal Years 2012-2013 and 2013-2014
Additional Priorities)
RECOMMENDATION:
By motion,
1. Approve Release and Waiver of Liability and payment of $55,000 for the cost
of improvements removed by the construction of the Sun Ranch Drainage
Improvement Project (CIP11503), on the Clayton property, located at 32151
Via Alicia; and,
2. Approve Release and Waiver of Liability and payment of $9,554.60 for the
cost of improvements removed by the construction of the Sun Ranch
Drainage Improvement Project (CIP11503), on the Gartner property, located
at 32141 Via Alicia; and,
EXECUTIVE SUMMARY:
On August 7, 2012, the City Council awarded a Construction Contract for the Sun
Ranch Drainage Improvement Project to Spiess Construction Company, Inc. (Spiess),
in the amount of $2,094,645.25. Construction work began in September 2012, and was
completed in April 2013. The execution of work required that the City enter private
properties adjacent to the project. Access and Settlement Agreements were obtained
from each of the 16 property owners that surround the project. The Agreement requires
that the City replace any private improvements removed during the performance of
work. Because of changes to property grades brought on by the Sun Ranch Drainage
Improvement Project, two property owners requested that they be compensated for the
cost of the removed improvements rather than have the City replace them. Staff has
City Council Agenda Report
October 1, 2013
Page 2 of 4
negotiated with these homeowners to determine the fair value of the removed
improvements and they have agreed to a Release and Waiver of Liabilities based upon
the agreed values. Staff therefore recommends approval of the Release and Waiver of
Liabilities for the Clayton property located at 32151 Via Alicia in the amount of $55,000
Attachment 1); and the Gartner property located at 32141 Via Alicia in the amount of
$9,554.60 (Attachment 2).
These costs represent the final costs for construction of the Sun Ranch Drainage
Improvement Project (CIP 11503). There will be future costs of $81,515 for the 5 year
monitoring and maintenance of the habitat area associated with the project. The funding
of these costs has been transferred from the project fund to the General Fund
Operations Budget and will be budgeted from $18,000 to $22,640 annually to cover
these costs from Fiscal Year 2013/2014 through Fiscal Year 2017/2018. The project
can therefore be closed out with a total project savings of $960,006. $900,000 will be
returned to the City's General Capital Improvement Fund Reserve as of June 30, 2013,
and the remaining $60,006 would be returned to the General Fund Contingency
Reserve.
DISCUSSION/ANALYSIS:
Prior to work commencing, the City was required to obtain permission to work within
each of the properties that surround the project. In most cases, this work was minor in
scope, simply requiring a small amount of grading to blend between the existing slope
and new streambed grades. A few properties were more affected by the project as they
had improvements and landscaping within the areas that required filling. In cases where
existing improvements were removed outside of the City's drainage easement, the City
must reestablish these improvements in kind. Staff worked with each of the property
owners to ensure that their properties were returned, as close as possible, to pre-
construction conditions.
On May 23, 2013, staff sent letters to all property owners abutting the project stating
that the City had completed the drainage improvements and has therefore complied
with its obligations under the Access and Settlement Agreements. The letter required
that the property owners contact the City with any issues or corrections prior to the City
filing of a Notice of Completion for the project. The City filed the Notice of Completion
with the County Recorder's Office on July 25, 2013.
During construction two of the property owners requested that the City not replace their
improvements as changes brought on by the project would require redesign of their
backyards. Instead they requested that they be compensated for the cost of the
removed improvements so that they could put these funds towards future
improvements. The remaining fourteen property owners did not have any issues with
the project completion. One of the property owners, Rick Scalzo, provided a letter dated
March 25, 2013, approving work on his property as complete (Attachment 3).
Staff requested cost proposals from its contractor, Spiess Construction, for the
replacement of removed private improvements for these two properties. The property
owners provided cost estimates from their contractors and recently the two parties have
agreed to a fair compensation for the removed improvements.
City Council Agenda Report
October 1, 2013
Page 3 of 4
FISCAL IMPACT:
The Fiscal Year 2012-2013 Capital Improvement Program budgeted $3.23 million for
the Sun Ranch Drainage Improvement Project (CIP 11503). Value engineering during
the design and construction phases aided in bringing construction costs significantly
under the originally anticipated budget.
The following spreadsheet compares the approved construction costs to actual costs:
Contract Proposed
Construction (Spiess Construction)
Construction Contingency ( 10%)
$2,094,645.25
209,464.00
Construction Engineering Support (Hall & Foreman)
Biological Monitoring and Mitigation (5 Years) (GLA)
Cultural, Archeological Resource Monitoring (Cogstone)
Habitat Area Maintenance (4 years) (Pacific BioScience)
10% Contingency on Support Agreements
City Staff Costs
(Project Management, Inspection, Admin. Services)
Tree Removals (West Coast Arborists, Inc.)
Geotechnical Oversight (Lawson Geotechnical Consulting)
Clayton Property Compensation
Gartner Property Compensation
35,150.00
57,270.00
32,234.00
25,920.00
15,000.00
60,000.00
0.00
0.00
0.00
0.00
Actual
$1,987,011.52
0.00
35,150.00
67,410.00
26,354.50
25,920.00
0.00
32,604.00
26,159.00
4,830.00
55,000.00
9,554.60
Total Project Cost $2,529,683.25 $2,269,993.62
The project came in $259,689.63 under the approved contract cost and $960,006 under
the approved Fiscal Year 2012-2013 Capital Improvement Program budget for the
project. The project can therefore be closed out, with a balance of $900,000 to be
returned to the General Capital Improvement Fund Reserve as of June 30, 2013. The
remainder of $60,006 would be returned to the General Fund Contingency Reserve.
ENVIRONMENTAL IMPACT:
Staff received the California Department of Fish and Wildlife approval on March 21,
2012, and worked closely with the US Army Corp of Engineers and California Regional
Water Quality Control Board to receive its certifications prior to commencing work in
September 2012. As a requirement of the certifications, the City must monitor and
maintain the habitat area.
PRIOR CITY COUNCIL REVIEW:
• On May 17, 2011, the City Council approved a PSA with Hall and Foreman, Inc.
for the design of the project.
• On June 19, 2012, the City Council approved the Plans, Specifications and
City Council Agenda Report
October 1, 2013
Page 4 of 4
Estimates for the project. They also adopted a Resolution approving a Mitigated
Negative Declaration for the project.
• On August 7, 2012, the City Council approved award of the Construction
Contract for the project to Speiss Construction Company, Inc. in the amount of
$2,094,645.25 with a contingency of $209,464.00.
• On September 4, 2012, the City Council awarded contracts for Construction and
Bid Engineering Support (Hall and Foreman, Inc.); Archeological, Paleontological
and Native American Resource Monitoring (Cogstone); Biological Resource
Oversight and Monitoring (Glen Lukos and Associates, Inc.); and Habitat
Maintenance (Pacific BioScience, Inc.).
• On June 18, 2013, staff presented an update of the project to the City Council.
Staff also presented a letter from Rick Scalzo approving the work, as required by
the December 15, 2010 Settlement Agreement, as complete.
• On July 16, 2013, the City Council approved Change Order No. 1 and accepted
work as complete on the project construction contract with Spiess Construction
Company, Inc.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• On March 13, 2012, staff held a Stakeholder scoping meeting for this project.
The meeting was noticed to all residents within 500 feet of the project. Staff
presented the project and took comments and questions from the 10 residents
that attended the meeting.
• On April 10, 2012, staff presented this project to the Planning Commission. At
that meeting, the Planning Commission recommended that the City Council
adopt a Mitigated Negative Declaration for the project.
• On July 17, 2012, staff presented this project to the Utilities Commission. There
were no comments by the Commission.
NOTIFICATION:
Rick A. Clayton
Joseph M. Gartner
ATTACHMENTS:
Attachment 1 -Release and Waiver of Liability -Clayton
Attachment 2 -Release and Waiver of Liability -Gartner
Attachment 3 -Scalzo Release Letter
RELEASE AND WAIVER OF LIABILITY
This Release and Waiver of Liability ("Release") is executed on this 1st day of October,
2013 by Rick and Nancy Clayton ("Property Owner") and the City of San Juan Capistrano and
its directors, officers, agents, employees, representatives, attorneys, successors, assigns,
subsidiaries, contractors and affiliates (collectively known as the "City").
WHEREAS, the City and Property Owner are parties to that certain "Right of Entry
License Agreement" dated August 15, 2012, by which Property Owner agreed that the City could
access certain portions of the property located at 32151 Via Alicia, San Juan Capistrano, CA
92675 ("Property") in order to construct public improvements; and
WHEREAS, during the course of construction, certain improvements on the Property
were removed. Such improvements are described as:
Four Spring Fed Reinforced Concrete and Cobble Rock Koi Ponds, 800 Square Feet of
4" Thick Concrete Sidewalk and Stairways, Remove and Reinstall Irrigation System, and
Landscaping including 1-12" dia. Mexican Fan Palm, 1-9' dia. Bottle Brush Tree, 10 -12" dia.
Washingtonia Palms, 1-36" dia. Phoenix Palm, 1-8" dia. Fig Tree, 1-10" dia. Willow, 1-12" dia.
Jacaranda, 1-5 gallon Flax, 6-5 gallon Moraya, 1-5 gallon Oleander, 1-5 gallon New Zealand
Flax, 12-5 gallon Agapanthus and 1-5-gallon Jasmine ("Improvements"); and
WHEREAS, the City has offered to replace or repair said Improvements. However,
Property Owner desires instead to be compensated with a monetary payment in lieu of such
repair or replacement.
NOW, THEREFORE, in consideration of the above-stated recitals, the City and Property
Owner hereby agree as follows:
1. Payment
Within ten (10) business days following full execution ofthis Release, the City shall pay
to Property Owner the sum of $55,000 in full compensation for any damages or losses incurred
to the Improvements by reason of the City's access of the Property for constructing the public
improvements which were the subject of the Right of Entry License Agreement.
2. Release and Waiver
As consideration for payment from the City, the Property Owner does hereby release and
forever discharge the City from and against any and all loss, damage, expense, liability, claim,
injury, settlement, judgment, award, fine, penalty, charge or demand of any nature (hereinafter
collectively referred to as "Claim"), either in law or in equity, which arises due to loss or damage
to the Improvements on the Property, including any Claim which arises, or may hereafter arise,
from the City's activities on the Property conducted pursuant to the Right of Entry and License
Agreement.
668/028428-0002
5914127.2 a09/25/13
ATTACHMENT 1
spouse, children, heirs, representatives, distributes, guardians and assigns. The Property Owner
expressly agrees that this Release is intended to be as broad and inclusive as permitted by the
laws of the State of California, and that this Release shall be governed by and interpreted in
accordance with the laws of the State of California. The Property Owner agrees that in the event
that any clause or provision of this Release shall be held to be invalid by any court of competent
jurisdictioh, the invalidity of such clause or provision shall not otherwise affect the remaining
provisions of this Release which shall continue to be enforceable.
By signing below, the parties have read, understood, and executed this Release as of the
date first written below.
Dated: 2013 ------
Dated: 2013 ------
Dated: _____ 2013
Attest:
By: _________ _
Maria Morris, City Clerk
Approved as to form:
By:
~---------------Hans Van Ligten, City Attorney
668/028428-0002
5914127.2 a08/22/13
CITY OF SAN JUAN CAPISTRANO, a municipal
corporation By: ______________________________ _
PROPERTY OWNER
(print namt)
-2-
RELEASE AND WAIVER OF LIABILITY
This Release and Waiver of Liability ("Release") is executed on thislst day of October,
:2013 by Joseph and Karen Gartner ("Property Owner'') and the City of San Juan Capistrano and
its directors, officers, agents, employees, representatives, attorneys, successors, assigns,
subsidiaries, contractors and affiliates (collectively known as the ''City").
WHEREAS, the City and Property Ow·ner are parties to that certain ''Right of Entry
License Agreement" dated August 13, 2012, by \Vhich Property Owner agreed that the City could
access certain portions of the property located at 32141 Via Alicia, San Juan Capistrano, CA
92675 ("Property'') in order to construct public improvements; and
WHEREAS, during the course of construction, certain improvements on the Property
were removed. Such improvements are described as:
Two Hundred (200) Square Foot Brick Patio Area and 20 Feet of 3 Foot High Gravity
Block Retaining Wall (''Improvements"'): and
WHEREAS, the City has offered to replace or repair said Improvements. II<)\vever,
Prope11y Owner desires instead to be compensated vvith a monetary payment in lieu of such
repair or replacement.
NOW, THEREFORE, in consideration of the above-stated recitals, the City and Property
Owner hereby agree as follows:
1. Payment
Within ten (I 0) business days following full execution of this Release, the City shall pay
to Property 0\vncr the sum of $9,554.60 in full compensation for any damages or losses incurred
to the Improvements by reason of the City's access of the Property for constructing the public
improvements \Vhich were the subject of the Right of Entry License Agreement.
2. Release and Waiver
As consideration for payment from the City, the Property Owner does hereby release ami
forever discharge the City from and against any and all loss, damage, expense, liability, claim,
injury, settlement, judgment, mvard, fine, penalty, charge or demand of any nature (hereinafter
collectively referred to as "Claim"), either in law or in equity, which arises due to loss or damage
to the Improvements on the Property, including any Claim which arises, or may hereafter arise,
from the City's activities on the Property conducted pursuant to the Right of Entry and License
Agreement.
3. i\liscellaneous
The Property Owner understands and acknowledges that this Release is a binding legal
document that affects legal rights and remedies. The Property Owner further understands and
acknowledges that this Release binds not only the Property Owner but also the Property Owner's
:'6X O_?S~:?:) OUC:?
)QJ.fJ27,2 :l0925 1)
ATTACHMENT 2
spouse. children, heirs, representatives, distributes, guardians and assigns. The Property Owner
expressly agrees that this Release is intended to be as broad and inclusive as pennittcd by the
Jaws of the State of California, and that this Release shall be governed by and interpreted in
accordance \Vith the laws of the State of Califomia. The Propetiy Owner agrees that in the event
that any dause or provision of this Release shall be held to be invalid by any court of competent
jurisdiction, the invalidity of such clause or provision shall not otherwise aftect the remaining
provisions of this Release which shall continue to be enf()rceablc.
By signing beknv, the parties have read, understood, and executed this Release as of the
date tirst written below.
Dated: 2013 -----
Dated:
Attest:
By:==========
Maria Morris, City Clerk
Approved as to t<.1nn:
By: __ ·-·········
Hans Van Ligten, City Attomcy
{'0,,'\ <)2~42~~0{102
50!-1127..? ;i<fi 25 13
CITY OF SAN JUAN CAPISTRANO, a municipal
corporation
By:----------------
PROPERTY OWNER
PROPERTY 0\V'NER
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(ptint namt)
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To whom it may concern:
The Martin E. and Marion E. Scalzo Trust 1987 is presently the owner of the property at 32281 Del
Obispo Street, San Juan Capistrano Ca., which is adjacent to the Sun Ranch Dedicated Drainage
Improvement project.
The Trust has provided the City of San Juan Capistrano and Spiess Construction Co. Inc., Its contractors
etc., the use of Its property for staalns and limits of grading durins the course of the project build out.
The Trust is in the process of sellins the property to The New Homes Co. and the Trust Is satisfied with
the condition with which the City and Spiess Construction have left the property and releases them and
the City of San Juan Capistrano from any further obllption/s regarding the use of the property as a
staging area for this project per our prior agreement.
Signed:
Tl -~~-~~
Frederick T. Scalzo, trustee for
The Martin E. and Marion E. Scalzo Trust 1987
ATTACHMENT 3
CITY OF SAN JUAN c-
CONTRACT TRANSMir
or SACRA Meeting Date (if applicable):
/~
Brief description ofservices to be provided: <2t::? ~0? ..... ,./'v -CC
Submitting Department: Pt1) Staff Contact: r -, . .:r::-I 'J,v ,£-~11-
1 / Please sign each original of the atr'ached Agreement/Contract, where indicated and circulate in the below route order
(Please note the procurement limitations below). When the contract is fully executed, the City Clerk will provide a
signed copy to the submitting department and to the Financial Services Department, and will mail a signed original
to the contractor/consultant.
Route To:
¢;Department Head
r,;t:'\t:~; .. :-::;:<.K/,dk~'t\<1 ~
'· D Approved
D Not Approved
Director's Initials/Date _______ _
Attorney
Approved as to Form
Not Approved
City Attorney's Initials/Date --------L=--
!;& CFO/Treasurer
D Funding Available
D No Funding Available
D Budget Resolution Required
Notes:----------~
CFO/Treasurer's Initials/Date-----~
[JYCity Manager
DApproved
DDenied
City Manager's Initial's/Date:
~ City Clerk (For Final Routing)
Procurement:
D $10,000 or less-(Department Head's Authority)
D $10,001 -$45,000-(City Manager's Authority)
D $45,001 or over-(City Council Approml Required*)
*Date of Council Approval: or Resolution. No .. ____ ~
D Public Contracts $45,000 or less-(City Manager's Authority Required)
D Public Contracts over $45,000-(City Council's Authority Required*)
*Date of Council Approval: or Resolution. No.: ____ ~
Insurance Requirements:
Commercial/General Liability
uto Liability
D Prof! ssionai!Errors and Omissions
D Work 's Compensation
D Additio Insured Endorsement
D Public Wor Contracts-Labor/Material & Performance Bonds
1. Contractor/Consultant Name: -----"'~<--=-171--'/~"", =----------------
2. Business License: [j] Yes 0 No License Number: ____ _
Date of Expiration ______ _
3. Contract Amount:
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
--------
Budget Account Number:
I
City Services and Facilities to be provided (If Applicable):/
il.f[--
Is this a standard City contract? Yes
Are two original contracts submitted? 0 Yes
·.p
I
0 No Ifno, explain:
0 No lfno, explain:
Expiration Date: ______ _ Contract Date: ---------
Insurance Certificate attached: D Yes D No If no, explain:
Purchase Requisition attached: D Yes / D No If no, explain:
P;fr
I
Bid Recap Attached: 0 Yes 0 No Ifno, explain:
r~ltr= ------
W-9 Form Attached: 0 Yes ~o If no, explain:
New Vendor Application Form Atta~hed: 0 Yes 0 No If no, explain: __
14. Does this document need to be recorded? [j] Yes 0 No
The Financial Services Department will issue a Purchase Order (PO) to the submitting department, once all of the
information on this Contract Transmittal Form has been received by finance through the City Clerk's Office.
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493·1171
(949) 493·1053 FAX
www.sanjuancapistrano.org
TRANSMITTAL
TO:
Rick and Nancy Clayton
32151 Via Alicia
San Juan Capistrano, CA 92675
DATE: October 3, 2013
FROM: Christy Jakl, Deputy City Clerk (949) 443-6310
RE: Release and Waiver of Liability-Right of Entry License Agreement
Enclosed is an original document for your records.
MEMBERS OF THE CITY COUNCIL
SAMALLEVATO
ROY L. BYRNES, M.D.
LARRY KRAMER
DEREK REEVE
JOHN TAYLOR
If you have questions concerning the agreement, please contact Joe Mankawich, Associate
Engineer at (949) 487-4313.
Cc: Joe Mankawich, Associate Engineer
San Juan Capistrano: Preserving the Past to Enhance the Future
n
\...,. Printed on 100% recycled paper