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13-1001_JOSEPH M. GARTNER_Release and Waiver of LiabilityRELEASE AND WAIVER OF LIABILITY This Release and Waiver of Liability ("Release") is executed on this 1st 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 Owner are parties to that certain "Right of Entry License Agreement" dated August 13, 2012, by which 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. 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 (1 0) business days following full execution of this Release, the City shall pay to Property Owner 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 which were the subject ofthe 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. 3. Miscellaneous 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 668/028428~0002 5914127.2 a09 25 13 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 jurisdiction, 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: /0 /r 2013 Dated: Dated: ' Attest: :JA ans a 1, City Attorney 668 028428-0002 5914127.2 a09'25.'13 (print name) -2- City of San Jua Agen TO: Karen P. Brust, City~a apistrano o.rt 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 ( 1 0%) $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) 1 0% 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 I st 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 I-S-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 (1 0) business days following full execution of this 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 ofthe 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 jurisdiction, the invalidity of such clause or provision shall not otherwise affect the remaining provisions ofthis Release which shall continue to be enforceable. By signing below, the parties have read, understood, and executed this Release as ofthe 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 aOS/22113 CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: ____________________________ _ PROPERTY OWNER ~11 K,~L_ (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 Ov,'ner are parties to that certain '"Riglit of Entry License Agreement" dated August 13, 2012, by which Property Owner agreed that the City could access certain portions ofthe 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 of3 Foot High Gravity Block Retaining WaH ("Improvements"); and WHEREAS, the City has offered to replace or repair said Improvements. [ Iowcver, Property Owner desires instead to he 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 (I 0) business days following full execution of this Release, the City shall pay to Property Owner 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 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 torcver 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. 3. MisceHaneous 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 acknO\vledges that this Release binds not only the Propetiy Owner but also the Property Owner's ~~6g 01 s.1 28 oor;2 s<n.tl27,2 a09 ~5 u 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 perrnittcd by the laws of the State of Califomia, and that this Release shall be governed by and interpreted in accordance with the laws of the State ofCalifomia. The Property Owner agrees that in the event that any clause or provision of this Release sha!1 be held to be invalid by any court of competent JUrisdiction, 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 tlrst written below. Dated: ____ _ 2013 Dated: Attest: By:=~~~==~-== Maria Morris, City Clerk Approved as to fonn: By: _________ --------------- Hans Van Ligten, City Atlomey Q(~:~ 1}2~.!2~·0002 5lJ l·ll 27.~ ~1')(1 25' 13 CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: ______________________________ __ PROPERTY OWNER PROPERTY OWNER -2- To whom It may concern: The Martin E. and Marlon 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 staging and limits of grading during the course of the project build out. The Trust is In the process of selling 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 obllgatlon/s regarding the use of the property as a staging area for this project per our prior agreement. Signed: Tf • ~--D"ed~~ Frederick T. Scalzo, trustee for The Martin E. and Marion E. Scalzo Trust 1987 ATTACHMENT 3 CITY OF SAN JUAN c- CONTRACT TRANSMI' City Council~ S~H/or SACRA Meeting Date (if applicable): /0 ( /3 I , SubmittingDepartment: Ptd) StaffContact: 'J,U ·~ Please sign each original of the aZ: 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 D Approved D Not Approved Director's Initials/Date _______ _ Attorney Approved as to Form Not Approved City Attorney's Initials/Date -----'-F- IA'f CFO/Treasurer CJ Funding Available CJ No Funding Available D Budget Resolution Required Notes: -------,----,------ CFO/Treasurer's Initials/Date _____ _ (JrCity Manager 1:! DApproved ~ DDenied City Manager's Initial's/Date: !)a City Clerk (For Final Routing) Procurement: D $10,000 or less-(Department Head's Authority) c::::J $10,001 -$45,000-(City Manager's Authority) D $45,001 or over-(City Council Approval Required*) *Date of Council Approval: or Resolution. No .. ____ _ CJ Public Contracts $45,000 or less-(City Manager's Authority Required) CJ 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 Profi ssional/Errors and Omissions D Work 's Compensation CJ Additio Insured Endorsement CJ Public Wor Contracts-Labor/Material & Performance Bonds Approval Process Completed-Copy of Contract Transmittal Form with documents forwarded to FS Department. D Denied-Returnefl to submitting department. Please provide the following and return to the City Clerk's Office: . ~ -:: '-" 1. Contractor/Consultant Name: __ ____,1:L'Xl""",+fi.,.~F-------------- 2. Business License: [jJ Yes 0 No License Number: ___ _ Date of Expiration ______ _ 3. Contract Amount: 4. 5. 6. 7. 8. 9. 10. II. 12. 13. 14. --------- Budget Account Number: I City Services and Facilities to be provided (If Applicable): j ~11= Is this a standard City contract? Yes Are two original contracts submitted? 0 Yes p I 0 No If no, explain: 0 No Ifno, explain: Expiration Date: -------Contract Date: --------- Insurance Certificate attached: 0 Yes 0 No Ifno, explain: ?!)At 'I Purchase Requisition attached: 0 Yes / 0 No If no, explain: fJ!Jr Bid Recap Attached: 0 Yes 0 No If no, explain: t·..r[ty= W-9 Fonn Attached: 0 Yes ,.r;;o If no, explain: New Vendor Application Form Attached: 0 Yes 0 No Ifno, explain: __ ,"01= Does this document need to be recorded? [jJ 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 MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493·1053 FAX www.sanjuancapistrano.org TRANSMITTAL TO: Joseph and Karen Gartner 32141 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. SAM ALLEVA TO 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 " \...J Printed on 1 00% recycled paper