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