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HomeMy WebLinkAboutD-1 Staff Report - HOA License and Reimbursement AgreementSCHEDULED ITEM D-1 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: ROBERT DELGADILLO, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER DATE: NOVEMBER 2, 2020 SUBJECT: CONSIDERATION OF ENTERING INTO A LICENSE AND REIMBURSEMENT AGREEMENT WITH THE MOUNTAIN COVE COMMUNITY ASSOCIATION AND AUTHORIZE CITY MANAGER AND CITY ENGINEER TO PROCURE MATERIALS/ENTER INTO A CONSTRUCTION AGREEMENT TO IMPLEMENT MITIGATION EFFORTS BACKGROUND: On August 13, 2020, the Ranch 2 fires burned over 4,200 acres adjacent to the Mountain Cove Community Association. These fires left the adjacent hillsides bare of vegetation and susceptible to mud flows. On September 3, 2020, City staff performed a site investigation with Los Angeles County Department of Public Works, the United States Department of Agriculture (USDA), and the Mountain Cove HOA representatives to discuss details on how to protect homes that may be affected during a storm event. On September 21, City Council authorized the City Manager to enter into an agreement with the USDA for Federal assistance related to mud flow mitigation efforts. RECOMMENDATION: Staff recommends the City Council take the following actions: 1)Authorize the City Manager to enter into a license and reimbursement agreement with the Mountain Cove Community Association in a form acceptable to the City Attorney. 2)Authorize the City Manager and City Engineer to procure materials/enter into a construction agreement (in a form acceptable to the City Attorney) as needed to implement mitigation efforts recommended by the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS). APPROVED CITY COUNCIL 11/02/2020 Mountain Cove Community Association License and Reimbursement Agreement November 2, 2020 Page 2 ANALYSIS: On August 13, 2020, the Ranch 2 fires burned over 4,200 acres adjacent to the Mountain Cove Home Owner’s Association. These fires left the adjacent hillsides bare of vegetation and susceptible to mud flows. On September 3, 2020, City staff performed a site investigation with Los Angeles County Department of Public Works, the United States Department of Agriculture, and the Mountain Cove HOA representatives to discuss details on how to protect homes that may be affected during a storm event. The EWP Program is a recovery effort aimed at relieving imminent hazards to life and property caused by floods, fires, windstorms, and other natural occurrences. All projects undertaken must have a project sponsor. NRCS may bear up to 75 percent of the construction cost of emergency measures and the remaining costs must be from local sources and can be in the form of cash or in-kind services. The sponsor of these projects must be a legal subdivision of the state such as a city, county, general improvement district, or conservation district. Sponsors are responsible for providing land rights to do repair work, securing the necessary permits, furnishing the local cost share, accomplishing the installation of the work, and performing any necessary operation and maintenance. The license and reimbursement agreement attached to this staff report require the Mountain Cove Community Association to reimburse the City for 25% of the cost for implementing the mitigation efforts. It also allows the City to perform work and maintenance as needed on the Association’s property. Because of the deadlines established by the USDA, it is not possible to attach a form of the proposed construction agreement to this staff report. Likewise, time constraints may make it necessary for the City to procure materials to meet implementation deadlines set by the USDA. FISCAL IMPACT: The Engineer’s estimate for these mitigation efforts is a total of $186,500. The USDA NRCS would cover 75% of the cost up to $139,875. The Mountain Cove Community Association would be responsible to reimburse the City the remaining 25% of the cost up to $46,625. There is no direct fiscal impact to the City. The City is acting as the sponsoring agency which is required by the Emergency Watershed Protection program. Prepared by: Reviewed and Approved: Robert Delgadillo, P.E. Sergio Gonzalez Director of Public Works/City Engineer City Manager Attachment: 1) Mountain Cove Community Association License and Reimbursement Agreement 1 REIMBURSEMENT AND LICENSE AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 ATTN: City Manager (Exempt from Filing Fees – Government Code § 6103) SPACE ABOVE THIS LINE FOR RECORDER’S USE REIMBURSEMENT AGREEMENT by and between MOUNTAIN COVE COMMUNITY ASSOCIATION and CITY OF AZUSA Attachment 1 2 LICENSE AND REIMBURSEMENT AGREEMENT THIS LICENSE AND REIMBURSEMENT AGREEMENT (this “Agreement”) is made and entered into as of November __, 2020 (the “Effective Date”) by and between Mountain Cove Community Association (“Mountain Cove”) and the City of Azusa (the “City”). Mountain Cove and the City are at times referred to herein individually as a “Party” and collectively as the “Parties.” RECITALS A. WHEREAS, on August 13, 2020, the Ranch 2 fires burned over 4,200 acres adjacent to the Mountain Cove (the “Affected Area”) and left the Affected Area bare of vegetation and susceptible to mud flows. B. WHEREAS, following a September 3, 2020 site investigation with the Los Angeles County Department of Public Works and the United States Department of Agriculture (“USDA”), the Parties have determined that the best way to protect homes that may be affected during a storm event is to implement emergency measures with federal assistance from the USDA Natural Resource Conservation Service (“NRCS”)’s Emergency Watershed Protection (“EWP”) Program. C. WHEREAS, under the EWP Program, the NRCS will bear up to seventy five percent (75%) of the construction cost of emergency measures and the remaining costs must be born from local sources and can be in the form of cash or in-kind services. D. WHEREAS, under the EWP Program, the sponsor of the emergency measures to be constructed through the EWP Program must be a legal subdivision of the state, such as a city, county, general improvement district, or conservation district. E. WHEREAS, EWP Program sponsors are responsible for providing land rights to do repair work, securing any necessary permits, furnishing the local cost share, accomplishing the installation of the work, and performing any necessary operation and maintenance (the “Sponsor Responsibilities”). F. WHEREAS, the City is willing to act as the sponsor of the emergency measures by entering into an agreement with the NRCS (the “City-NRCS Agreement”), attached hereto as Exhibit “A,” provided that Mountain Cove agree to reimburse the City for certain costs as specified herein and under the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein, in their entirety, by this reference. 3 2. Reimbursement. a. Mountain Cove agrees to reimburse the City for one-hundred percent (100%) of the costs of the Sponsor Responsibilities that the City will incur under the City-NRCS Agreement (the “Reimbursable Expenses”). Mountain Cove shall pay such Reimbursable Expenses to the City within thirty (30) days of receipt from the City of a written invoice therefor, together with reasonable backup documentation supporting such Reimbursable Expenses. Any Reimbursable Expenses not paid when due shall accrue interest until paid at an annual rate equal to the lesser of ten percent (10%) and the maximum rate permitted by applicable law. b. Notwithstanding subsection (a) above, the Reimbursable Expenses shall not include the costs for the protective system for the City’s Light & Water Department tank. Additionally, the Parties agree that the City’s Light & Water Department shall also be responsible for a percentage of the mobilization costs, to be mutually agreed upon by the Parties once the final cost is determined. 3. License. Mountain Cove grants the City a non-exclusive license to perform the Sponsor Responsibilities, including, but not limited to, the installation, operation, and maintenance of the emergency measures, on Mountain Cove’s property. Notwithstanding Mountain Cove’s approval of the City’s use of the property, nothing in this section shall be deemed to grant, convey, create, or vest in the City a real property interest in land, including any fee, leasehold interest, or easement. 4. Insurance. Mountain Cove is required to obtain and maintain indemnity insurance coverage with limits of One Million Dollars ($1,000,000.00) per occurrence. Said policy of insurance shall name, by endorsement, the City as an additional insured. Additionally, said policy of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days’ prior written notice by certified or registered mail to the City. Within five (5) business days of the execution of this Agreement, Mountain Cove shall provide the City with a certificate of insurance evidencing the required coverage and the naming the City as additional insured, and shall additionally provide the City with a copy of the endorsements naming the City as additional insured. In addition, Mountain Cove, upon reasonable notice by the City, shall make available for inspection by the City at Mountain Cove’s office, copies of said insurance policy. 5. Indemnification. Mountain Cove shall defend, indemnify, and hold harmless the City, its elected officials, officers, employees, agents and volunteers from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, delay, or injury, to property or persons, including wrongful death, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Mountain Cove, its officers, personnel, employees, agents, or contractors arising out of or in connection with this Agreement or the design, construction or 4 installation of any and all emergency measures constructed pursuant to the City-NRCS Agreement and the City’s participation in the EWP Program, including without limitation, the payment of all consequential damages, attorney’s fees and other related costs and expenses. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorney’s fees, and related costs or expenses, and the reimbursement of the City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Mountain Cove's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its elected officials, officers, employees, agents or volunteers. 6. Notices. Each notice, invoice, request, demand, or other communication required or permitted by this Agreement shall be given in writing and be delivered by means of personal delivery, U.S. mail, or nationally recognized overnight courier. Notices shall be delivered to the following address (as the same may be updated by the Parties from time to time by written notice): If to Mountain Cove: If to the City: Mountain Cove Community Association City of Azusa C/O FirstService Residential 213 E. Foothill Blvd. 9130 Anaheim Pl., Suite 110 Azusa, CA 91702 Rancho Cucamonga, CA Attention: City Manager 7. No Assignment. Neither Party may assign any of its rights under this Agreement, except with the prior written consent of the other Party. 8. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument. 9. Binding Effect; Entire Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors, and permitted assigns. This Agreement is the entire agreement of the Parties regarding the subject matter of this Agreement. This Agreement may only be amended or changed if such amendment or change is in writing and signed by both Parties. 10. Relationship of the Parties. The Parties, in performing their respective duties and obligations under this Agreement, are at all times acting and performing as independent contractors with respect to each other, and nothing in this Agreement is intended to create, nor will be construed to create, an employer-employee relationship, a partnership, a joint venture, or any other form of relationship between the Parties to this Agreement. 5 11. Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California applicable to contracts made and performed in the State. 12. No Waivers. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies. [Signatures on following page] 6 SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT BY AND BETWEEN MOUNTAIN COVE COMMUNITY ASSOCIATION AND CITY OF AZUSA IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the Effective Date. MOUNTAIN COVE: MOUNTAIN COVE COMMUNITY ASSOCIATION By: Name: ______________________________ Title: _______________________________ Attest: By: Name: ______________________________ Title: _______________________________ CITY: CITY OF AZUSA By: Name: Sergio Gonzalez Title: City Manager Attest: By: Name: Jeffrey Cornejo Title: City Clerk Approved as to Form: By: Name: Marco A. Martinez Title: City Attorney 7 EXHIBIT A CITY-NRCS AGREEMENT [Attached]