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15-1020_BLAS AGUILAR ADOBE FOUNDATION_F10_Agenda ReportTO: FROM: DATE: SUBJECT: City of San Juan Capistrano Agenda Report 10/20/2015 F10 Honorable Mayor and Members of the City Council Thorn Coughran P.E, Interim Public Works and Utilities DirectorPf Prepared by: Paul Meshkin P.E, Senior Civil Enginee~ October 20, 2015 Consideration of an Amendment to the Memorandum of Understanding (MOU) with the Bias Aguilar Adobe Foundation for the Bias Aguilar Adobe Nature Education Facility (NEF) Grant Project (CIP 07403) RECOMMENDATION: By motion, approve an amendment to the Memorandum of Understanding (MOU) with the Bias Aguilar Adobe Foundation for the Bias Aguilar Adobe Nature Education Facility (NEF) Grant Project (CIP 07403). EXECUTIVE SUMMARY: In May 2011, the State of California awarded the City of San Juan Capistrano a $498,434 Nature Education Facility (NEF) Grant for repairs to the Bias Aguilar Adobe for certain site improvements. The State approved grant application included a site development concept for the Bias Aguilar Adobe property that included installing a stairway at the front of the adobe, landscape improvements, reconstructing the historic well, reconstructing the historic "homo" oven, defining the perimeter of the former Casa Tejada Adobe and installing a California native plant garden. IS Architecture, has prepared the adobe rehabilitation/ repairs plans as well as the construction plans for the well and "homo". RJM Design Group has prepared the site development plans. The Bias Aguilar Adobe Foundation has offered to provide volunteer services for certain site improvements including constructing the "homo" oven and the historic well. The Bias Aguilar Adobe Foundation entered into a Memorandum of Understanding (MOU) with the City to complete the proposed improvements but the MOU expired on June 30, 2014, before any work could begin due to delays caused by construction of the Site Improvements portion of the Project. Currently, it is anticipated that this work will begin by March of 2016. Staff recommends that the City Council approve an amendment to the MOU with the Bias Aguilar Adobe Foundation to extend the original expiration time from June 30, 2014, to June 30, 2016. City Council Agenda Report October 20, 2015 Pa e 2 of 4 DISCUSSION/ANALYSIS: In 2008, State voters approved Proposition 84, a major parks bond measure placed on the ballot by the State of California entitled the "Statewide Park Development and Community Revitalization Program of 2008." Under the "umbrella" of the Proposition 84 Grant Program, the State established the Nature Education Facilities (NEF) Grant Program. The NEF Grant is a competitive grant program intended to fund a broad range of open space and recreation projects that focus on "inspiring environmental stewardship." The NEF Program was funded by the State with $93 million in Proposition 84 Park Bond funds and was created to "encourage the development of parks, facilities, and programs that educate visitors, inspire environmental stewardship, and promote public understanding and knowledge of California's resources." On May 18, 2010, the City Council directed staff to submit grant applications to the State of California for funding under the Proposition 84 Grant Program. The City's grant application submission included a request for $498,434 in funding for the Bias Aguilar Adobe Repair as well as site improvements. As part of the grant application submission, City staff designed a site development concept for the Bias Aguilar Adobe property that included substantial input from both the Bias Aguilar Adobe Foundation and the City's Cultural Heritage Commission including: • Removing landscaping at the front of the Adobe and installing a ladrillo tile (or other material) patio which would create a larger, safer gathering area near the Adobe's entrance; • Reconstructing the above-ground, platform and hoist over the historic well; • Reconstructing an authentic homo oven near the Adobe's south wall; • Outlining the perimeter of the foundation of the former Casa Tejada Adobe; and, • Installing interpretive and educational enhancements including a California native plant garden. The plans also include the potential for re-creating a zanja (irrigation channel) water feature in that area and a design-compatible, free-standing storage building. The storage would allow the existing garage to be used as exhibit space for collections. The City subsequently entered into a grant contract for the project with the State of California. Archaeological testing to support the landscaping and cultural feature re- creation and interpretation, as well as the project's CEQA analysis, have been completed. The Bias Aguilar Adobe Foundation, curator of the Bias Aguilar Adobe Museum, entered into a Memorandum of Understanding (MOU) with the City to complete several improvements with volunteer labor and donated plant/building materials including the fence along the north property line, the installation of California native landscaping, construction of the "horne" oven, and construction of the historic well. Those improvements would be completed by the Bias Aguilar Adobe Foundation after the City Council Agenda Report October 20, 2015 selected contractor completes repair work on the adobe and completes other planned site improvements by March of 2016. The MOU expired on June 30, 2014, and in order for the Bias Aguilar Adobe Foundation to implement the proposed improvements, the MOU needs to be extended to June 30, 2016. FISCAL IMPACT: There are no fiscal impacts by extending the expiration date of the MOU to June 30, 2016. ENVIRONMENTAL IMPACT: The City has complied with all applicable provisions of the California Environmental Quality Act (CEQA) and on May 15, 2012, the City Council adopted a Mitigated Negative Declaration (MND) and approved a Mitigation Monitoring & Reporting Program (MMRP) for the proposed project (see Attachment 2). PRIOR CITY COUNCIL REVIEW: • On April 7, 2015, The City Council awarded a construction contract to MSC Construction Inc. for the Bias Aguilar Adobe Repair/Restoration project • On September 4, 2012, the City Council conditionally approved the preliminary design plans for the Bias Aguilar Adobe property. • At its May 15, 2012 meeting, the City Council approved a Mitigated Negative Declaration (MND) for the project and directed staff to assure signage would be provided along the property frontage. The project plans and specifications include the design and location of the sign. • On February 7, 2012, the City Council approved a Personal Services Agreement with Ed Almanza & Associates for performing the California Environmental Quality Act (CEQA) review of the Bias Aguilar Adobe project • On November 15, 2011, the City Council approved a Personal Services Agreement with RJM Design Group to prepare the development plans for the proposed project • On May 18, 2010, the City Council directed staff to submit grant applications to the State of California for funding under the Proposition 84 Nature Education Facilities (NEF) Grant Program including the Bias Aguilar Adobe. • On October 21, 2008, the City Council approved a Personal Services Agreement with IS Architecture to prepare the adobe roof and wall repair plans for the proposed project City Council Agenda Report October 20, 2015 Pa e 4 of 4 COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Both the Cultural Heritage Commission and the Planning Commission have previously reviewed and recommended City Council approval of the preliminary design plans for the Bias Aguilar Adobe project NOTIFICATION: Domingo Belardes, Bias Aguilar Adobe Foundation ATTACHMENTS: Attachment 1 -Memorandum of Understanding (MOU) with Bias Aguilar Adobe Foundation MEMORANDUM 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 July __ , 2015 (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 Bias Aguilar Adobe property (the "Project"). The property is located at 31806 El Camino Real. The BAAF shalt 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 Bias 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 shalt commence on the Effective Date and shalt remain in effect until June 30, 2016 unless extended or terminated earlier in writing by both Parties. 1 ATTACHMENT 1 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. Licensees 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 Licensees. 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, Licensees 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 Licensees, including products and completed operations of Licensees or automobiles owned, leased, hired by Licensees. 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 (1 0) 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 Licensees' access or use of the Property pursuant to this MOU or License Agreement, or the conduct of Licensees' activity, work, or things done, permitted or suffered by Licensees, in or about the Property pursuant to this MOU or the License Agreement, 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 atthe 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: With a copy to: ToBMF: City of San Juan Capistrano Attn.: City Manager 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Jeff Ballinger 88 & K, LLP 18101 Von Karman Ave, Suite 1000 Irvine, CA 92612 Bias Aguilar Adobe Foundation, Inc. Attn.: Doming Belardes 31805 El 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 California municipal corporation By: Nam_e_: ______________________ __ Its: ---------------------- ATTEST: City Clerk APPROVED AS TO FORM: BLAS AGUILAR ADOBE FOUNDATION, INC. ~~~ Na~~ · Its: fu I 5