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HomeMy WebLinkAboutAGENDA REPORT 2018 1219 REG CCSA ITEM 10FCITY OF MOORPARK, CALIFORNIA City Council Meeting of 12/19/2018 ACTION Approved staff recommendation. Adopted Reso. No. 2018-3777 BY M. Benson F. Consider Settlement Agreement with Sharon White and Resolution Amending the Fiscal Year 2018/2019 Budget. Staff Recommendation: 1) Approve Settlement Agreement with Sharon White and authorize City Manager to execute agreement, subject to final language approval of City Manager and City Attorney; and 2) Adopt Resolution No. 2018-3777, amending FY 2018/19 Budget to fund the work. ROLL CALL VOTE REQUIRED Item: 10.F. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Jeremy Laurentowski, Parks and Recreation Director BY: Jessica Sandifer, Community Services Manager DATE: 12/19/2018 Regular Meeting SUBJECT: Consider Settlement Agreement with Sharon White and Resolution Amending the Fiscal Year 2018/2019 Budget BACKGROUND In 2013, staff was notified by an adjacent resident that a wood retaining wall on the south slope of Arroyo Vista Community Park, above the tennis courts, was failing. Further soil analysis confirmed that the slope was unstable and the retaining wall would have to be replaced. Staff had plans prepared to remove the wood retaining wall and replace it with a more robust concrete retaining wall to shore up the slope. The work began in September 2016 and was completed in December 2016. The construction of the retaining wall required that the City’s contractor have access through two adjacent properties in order to be able to excavate the retaining wall foundation. The City’s Right of Entry Agreement with each homeowner stated that no permanent changes would be made to their properties and that the properties would be returned as close as possible to their pre-construction condition. DISCUSSION Prior to the completion of the retaining wall, the adjacent homeowner at 4494 Summer Glen Court (Ms. Sharon White) informed staff that her property had been modified by construction of the retaining wall and that she wanted it returned to its prior condition. Staff visited the site with the project civil engineer and concurred that the retaining wall would increase the grade of her property adjacent to the park site. During this investigation it was evident that the engineering plans prepared for this project did not establish a final grade that was equivalent to the existing grade of the homeowner’s property prior to construction. Even though all structures for this project were installed Item: 10.F. 65 Honorable City Council 12/19/2018 Regular Meeting Page 2 on the park side of the property line, the grade was raised approximately 12” to 18” in order to ensure adequate drainage of both the wall and the adjacent properties. At the time that this was brought to staff’s attention the concrete piles that form the foundation for the retaining wall were already constructed. In order to alleviate some of the neighbor’s concerns, staff and the civil engineer worked with the contractor to lower the v-ditch, which is used to convey water away from the retaining wall, to the top of the concrete piles. However, the v-ditch could not be lowered any further without compromising the structural integrity of the wall. After this work was completed, staff had a survey conducted that confirmed the project had modified the homeowner’s property by raising the grade approximately 6”. The grade differential occurs along the toe-of-slope adjacent to the park site. Currently, additional work needs to be completed in order for Ms. White’s property to drain adequately. Even though the property drains to a low spot on the property, it does not adequately drain to the v-ditch. The grade needs to be modified in order to provide 2% cross drainage to the concrete v-ditch. Staff has worked with the homeowner and the project civil engineer on a solution for the drainage issue and has prepared a Settlement Agreement with the Homeowner to finalize all issues related to the homeowner’s grade and drainage issue. The terms of the Settlement Agreement are: • City agrees to grade property and provide positive drainage, install decomposed granite at the toe of homeowner’s slope, and installation of four catch basins with drain lines that will be cored through the City’s retaining wall to allow water to drain from Homeowner’s property; • City will pay Homeowner $5,420 to replace the landscaping that was removed as a part of the project. The landscaping and irrigation repairs are to be completed as determined by the Homeowner. The landscape settlement cost was based on a reasonable quote from a landscape company to replace the plants and make the needed irrigation repairs; and • After completion of the improvements, Homeowner agrees to release all further claims regarding drainage on the property. Staff has obtained a quote from The Adjul Corporation dba Lee Construction (Lee Construction) for the grading and drainage modifications. Lee Construction is well qualified to do the work and staff is recommending an Agreement with Lee Construction to perform the work. The value of the contract is within the City Manager’s signing authority so Council approval of the Agreement is not required. The cost to make the grading modifications and drainage repairs is $20,238, plus a 15% contingency of $3,036 for a total contract cost of $23,274. In addition, the Settlement Agreement calls for the City to make a $5,420 payment to the homeowner for 66 Honorable City Council 12/19/2018 Regular Meeting Page 3 replacement of landscaping and associated irrigation. The total cost of the repairs and settlement agreement is $28,694. FISCAL IMPACT No funds were appropriated in FY2018/19. Staff is requesting a $28,694 budget amendment from the General Fund (1000) for the grading and drainage repairs and settlement payment to the homeowner. STAFF RECOMMENDATION (ROLL CALL VOTE) 1) Approve Settlement Agreement with Sharon White and authorize City Manager to execute agreement, subject to final language approval of City Manager and City Attorney; and 2) Adopt Resolution No. 2018-_____ amending FY2018/19 Budget to fund the work. Attachments: 1 – Settlement Agreement 2 – Resolution No. 2018-____ 67 ATTACHMENT 1 SETTLEMENT AND RELEASE AGREEMENT BETWEEN SHARON WHITE AND THE CITY OF MOORPARK RELATED TO LANDSCAPING AND DRAINAGE This Settlement Agreement (“Agreement”) is made and entered into as of this _________ day of ________________________, 2018, by and between the CITY OF MOORPARK (“CITY”) and SHARON WHITE (“HOMEOWNER”) (collectively, the “Parties”). RECITALS A. Homeowner is the owner of the property located at 4494 Summerglen Court, Moorpark, California 93021 (APN: 506-0-121-125) (“Property”). B. The City designed and constructed a retaining wall on city-owned park property (“Project”) which abuts the north property line of the Property to address an issue related to a potential slope failure. C. On September 10, 2017, City and Homeowner entered into a Right of Entry Agreement to allow City’s Contractors to access the Property during construction of the Project. Specifically, the Right of Entry Agreement granted access to the Property and contained provisions regarding removal and replacement of the tubular steel fence, and returning the Property to the same condition that existed prior to the project. D. In order to complete the Project, the planned activities were to excavate within the Property, remove the landscaping, and conduct grading. E. The Project plans included the construction of a concrete drainage ditch (‘v’ ditch) on City property, and grading within the Property to provide positive drainage towards the ‘v’ ditch. Prior to completion of the Project, the newly constructed ‘v’ ditch was lowered approximately 6” at the request of the Homeowner in an attempt to bring the Property to pre-existing conditions. F. At the completion of Project, the tubular steel fence was replaced and the Property was graded to provide positive drainage towards the ‘v’ ditch, including use of the natural flow line to a low point located approximately 20’ from the east property line. The newly constructed down drain was constructed at the low point of the Property so that storm water and irrigation runoff would drain away from the property via the ‘v’ ditch, to the down drain, and onto City property. G. Homeowner asserts that water does not drain away from the Property at the low point and seeks to have the grading repaired such that water flows minimum 2% towards the newly constructed ‘v’ ditch, and the landscaping replaced. H. City has ascertained that the elevation of the property after the completion of the Project modified Homeowner’s grade approximately 6” which does not allow the water to enter the ‘v’ ditch and drain. (see Exhibit A and A-1) 68 ATTACHMENT 1 I. The Parties now desire to enter into this Agreement to set forth the terms under which the landscaping will be replaced and the drainage issues modified (“Improvements”) adjacent to the north property line of the Property to settle all disputes related to the Project and with Homeowner regarding the dispute described in these Recitals (collectively the “Dispute”). TERMS AND CONDITIONS In consideration of the matters set forth above, which are acknowledged as correct, the Parties agree as follows: 1. Completion of Improvements 1.1 City shall complete the Improvements, as detailed on Exhibit B and B-1, on or before the date that is 90 days following the signing of this Agreement. 1.2 Homeowner is aware that City will also be constructing a ‘v’ ditch on private property adjacent to the east of Homeowner’s property to further facilitate modification of the drainage issue, and to divert nuisance water from the adjacent private property (APN: 506-0-122-105). 1.3 Homeowner agrees that the Improvements, as detailed on Exhibit B and B-1, are satisfactory and are intended to fix the drainage issues on the property. Homeowner further agrees that once the Agreement is signed, no changes will be made to the plan for Improvements, and the Improvements will be installed as agreed. 1.4 Homeowner grants entry (on the north (rear) of Grantor’s property) to the City and its agents and contractors specifically to complete the Improvements detailed on Exhibit B and B-1, on the north side (rear) of Grantor’s property. Entry shall occur Monday through Friday during the hours of 7:00 a.m. to 3:30 p.m. and shall automatically terminate upon completion of construction of the improvements, unless extended by City and Homeowner upon execution of a written Agreement signed by both parties. 1.5 Prior to Homeowner sign off on the completed Improvements, City will water test improvements to insure positive drainage is achieved. At the completion of the Improvements, Homeowner will sign off acceptance of the Improvements, in the form attached as Exhibit C (“Acceptance Certification”). Homeowner understands that once the Improvements are accepted, Homeowner shall be responsible for any maintenance associated with the Improvements, and City shall not be responsible to repair or replace the Improvements due to lack of, or deferred, maintenance. 1.6 To satisfy the requirement to replace Homeowner’s removed landscape material and modifications to the irrigation system, upon the full execution of this Agreement and within 30 days of the City’s receipt of the Acceptance Certification, the City shall pay Homeowner five thousand four hundred twenty dollars ($5,420.00). Homeowner shall use these funds to complete landscape and irrigation repairs as determined by homeowner. 69 ATTACHMENT 1 2. Limited Release 2.1 Upon the City’s full performance of its obligations set forth in Section 1 hereof, this Agreement shall serve as a full release and discharge by Homeowner on behalf of herself, trustees, heirs, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the City of Moorpark, its officers, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries and successors in interest, from all claims and all causes of action, including those for damages, refunds, compensation, attorney’s and expert’s fees and costs, and interest, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes and cause of action of whatever kind, at law or in equity, known or unknown, with respect to the Dispute. 2.2 Homeowner acknowledges that she has fully read this release and knows the contents therein and hereby expressly waives any and all rights and benefits to which it may be entitled under Section 1542 of the Civil Code, if any, which reads as follows: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE- “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MIGHT HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” 3. HOLD HARMLESS AGREEMENT City agrees to defend, indemnify and hold Homeowner harmless from any and all liability to, or claim of, any person or entity, which may result from City’s entry upon Homeowner’s land for the purposes authorized herein during construction of the Improvements. 4. INTERPRETATION OF AGREEMENT Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the Parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. 5. RIGHT TO INDEPENDENT COUNSEL The Parties acknowledge and represent that they have had the right to and benefit of consultation with independent legal counsel and expert consultants. The Parties have read and understand the entirety of this Agreement, and have been 70 ATTACHMENT 1 advised as to the legal effects of this Agreement, as to, for example, their rights and obligations, and hereby willingly and voluntarily agree to every term of this Agreement. 6. ENTIRE AGREEMENT This Agreement and the Exhibits attached hereto contain the entire understanding between the Parties relating to the obligations of the Parties described in this Agreement as it relates to the change in grade on Homeowner’s property and subsequent remedy. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. 7. TIME OF THE ESSENCE All Parties concur that time is of the essence with respect to this Agreement and each Party shall promptly take all actions required of that Party with respect to execution and approvals of this Agreement. 8. SEVERABILITY Should any provision of this Agreement be declared or determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable then the entire Agreement shall become invalid. 9. VENUE AND GOVERNING LAW This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions, or covenants referred to herein shall be filed in the applicable court in Ventura County, California. The City and Homeowner understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the Parties to this Agreement and also govern the interpretation of this Agreement. 10. AMENDMENTS Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by both Parties to this Agreement. 11. NO ADMISSION OF LIABILITY Nothing in this Agreement shall be construed as an admission of liability or wrongdoing by any Party to this Agreement or an admission of any claim against any party hereto. 71 ATTACHMENT 1 12. CAPTIONS OR HEADINGS The captions and headings of the various Articles, Paragraphs, and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof. 13. COST RECOVERY In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover its actual and reasonable costs and expenses, including attorney’s fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. 14. AUTHORITY TO EXECUTE The person or persons executing this Agreement on behalf of Homeowner warrants and represents that he/she has the authority to execute this Agreement on behalf of Homeowner and has the authority to bind Homeowner to the performance of obligations hereunder. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK Troy Brown, City Manager HOMEOWNER Sharon White, Property Owner Attest: Maureen Benson, City Clerk 72 ATTACHMENT 1 EXHIBIT A & A-1 Exhibit A – Pre-Construction Survey Exhibit A-1 – Post Construction Survey 73 ATTACHMENT 1 EXHIBIT B IMPROVEMENTS SCOPE OF WORK DRAINAGE MODIFICATION AND DECOMPOSED GRANITE INSTALLATION • Excavate, remove and grade soil as needed for planting and installation of decomposed granite. • Install up to 200sf Heavy Duty landscape fabric and staple under decomposed granite. • Install up to 5 tons of decomposed granite pathway (4” section with binder), along property line, as marked. Vibrate and compact. Pathway to be installed with a 2 percent grade towards the north property line fence for proper drainage. • Remove railroad tie step at the bottom of each stairway. Decomposed granite shall not be installed higher than the top of the bottom step. • Install up to 120 linear feet of 2x4 plastic header along length of property as marked. Header to be installed at the bottom of slope and along fence to contain decomposed granite. Maintain 18” wide planter between existing fence and decomposed granite. • Install 18” metal stakes every 4’ on center and at the end of each header board. • Install four (4) 8” square catch basins along decomposed granite walkway. Catch basins shall be located in the field by City representative and approved by homeowner. Install 4” drain line to connect all catch basins. Drain line shall be cored through concrete header wall and ‘V’ ditch on park side to drain. See Exhibit B-1 for Project Plans and Details 74 ATTACHMENT 1 EXHIBIT C ACCEPTANCE CERTIFICATION FORM Sharon White, Homeowner at 4494 Summerglen Court, has reviewed the Improvements, and Homeowner is satisfied that the work has been completed as agreed. The signature below represents Homeowner’s acceptance of the Improvements as installed. Homeowner understands that the nature of Improvements are such that there could be cracking and wear of the decomposed granite material, particularly due to erosion from water or sloughing of soil from the slope above the Improvements Homeowner understands that once the Improvements are accepted, Homeowner shall be responsible for the Improvements, including ensuring all installed drains are kept clear of dirt and debris to allow for them to function properly and City shall not be liable to repair or replace the Improvements. The undersigned warrants that she is the Homeowner or the authorized signatory of the Homeowner of the Property identified herein and is authorized accept the Improvements. HOMEOWNER ___________________________ Sharon White 75 ATTACHMENT 2 RESOLUTION NO. 2018-____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, AMENDING THE FISCAL YEAR 2018/19 BUDGET TO APPROPRIATE $28,694 FROM THE GENERAL FUND (1000) FOR OBLIGATIONS RELATED TO A SETTLEMENT AGREEMENT WITH SHARON WHITE WHEREAS, in September 2016 the City constructed a retaining wall at Arroyo Vista Community Park, adjacent to Sharon White’s home at 4494 Summer Glen Court; and WHEREAS, the construction of the retaining wall created undesirable conditions to the property at 4494 Summer Glen Court; and WHEREAS, on June 20, 2018, the City Council adopted the Operating and Capital Improvement Budget for Fiscal Year 2018/19; and WHEREAS, the City and homeowner, Sharon White, have negotiated a settlement agreement to repair the undesirable conditions to the property at 4494 Summer Glen Court; and WHEREAS, a staff report has been presented to City Council recommending approval of the proposed Settlement Agreement; and WHEREAS, the terms of the Settlement Agreement require the City to make repairs to the property and pay a cash settlement to the homeowner for landscape replacement for a total cost of $28,694; and WHEREAS, a budget expenditure increase of $28,694 is requested from the General Fund (1000) to fund these obligations; and WHEREAS, Exhibit “A” hereof describes said budget amendment and its resultant impact to the budget line items. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. An aggregate budget amendment of $28,694 from the General Fund (1000) to fund the Settlement Agreement obligations, as more particularly described in Exhibit A, attached hereto, is hereby approved. 76 Resolution No. 2018-____ Page 2 SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. PASSED AND ADOPTED this 19th day of December, 2018. __________________________ Janice S. Parvin, Mayor ATTEST: ___________________________________ Maureen Benson, City Clerk Attachment: Exhibit A – Budget Amendment 77 Resolution No. 2018 - Page 3 EXHIBIT A BUDGET AMENDMENT FOR GENERAL FUND TO ALLOCATE FUNDS FOR SETTLEMENT AGREEMENT WITH SHARON WHITE FISCAL YEAR 2018/19 FUND BALANCE ALLOCATION: Fund Title Fund Account Number Amount General Fund 1000-000-00000-33990 28,694.00$ Total 28,694.00$ EXPENDITURE APPROPRIATION: Account Number Current Budget Revision Amended Budget 1000-541-00000-51510 -$ 5,420.00$ 5,420.00$ 1000-541-C0043-53000 -$ 23,274.00$ 23,274.00$ -$ -$ Total -$ 28,694.00$ 28,694.00$ 78