CONSENT ITEM E-5 TO: VIA: FROM: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL TROY L. BUTZLAFF, ICMA-CM, CITY MANAGER DANIEL BOBADILLA, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER DATE: OCTOBER 19, 2015 SUBJECT: APPROVE AMENDMENT TO COST SHARING AND MAINTENANCE AGREEMENT AND MEMORANDUM OF UNDERSTANDING WITH THE CITY OF GLENDORA FOR THE EXTENSION OF CITRUS AVENUE AND RELATED IMPROVEMENTS SUMMARY: In 2006, the City of Azusa entered into an Agreement with the City of Glendora to address the maintenance responsibilities associated with extension improvements to Citrus Avenue. In 2011, an amendment was approved to further clarify that the City of Azusa would be responsible for all maintenance responsibilities. This action approves another amendment delineating the project limits and plan check, approval, and inspection responsibilities for both cities. In addition, this action approves a Memorandum of Understanding to transfer $200,000 in Rule 20A Funds to the City of Glendora for their cooperation in facilitating the extension improvements to Citrus Avenue. RECOMMENDATIONS: It is recommended that the City Council take the following actions: 1) Approve the Supplemental Amended Cost Sharing and Maintenance Agreement between the City of Azusa and the City of Glendora for the extension of Citrus Avenue and related improvements; and 2) Approve a Memorandum of Understanding MOU between the City of Azusa and the City of Glendora for the transfer of Rule 20A Funds; and 3) Authorize the Mayor to execute the Supplemental Amended Cost Sharing and Maintenance Agreement and the Memorandum of Understanding. DISCUSSION: On February 3, 2003, the City Council approved the Monrovia Nursery Project, known as the Rosedale Development. As part of the Rosedale Development, the developer was required to extend Citrus
Amendment to Cost Sharing/Maintenance Agreement and MOU with Glendora October 19, 2015 Page 2 Avenue from Foothill Boulevard north into the development. The majority of the Citrus Avenue extension will be within the City of Glendora, but will primarily serve the City of Azusa residents. As a result, on May 15, 2006, the cities of Azusa and Glendora entered into a Cost Sharing and Maintenance Agreement to address the maintenance and care of the Citrus Avenue extension. The agreement requires the City of Glendora to maintain the roadway and also requires the City of Azusa to pay for 100% of the maintenance costs. On November 7, 2011, the agreement was amended to further clarify maintenance responsibilities. Since the Citrus Avenue extension would not provide direct access to the City of Glendora, both parties agreed that the City of Azusa should take full responsibility for maintenance and liability for the Citrus Avenue extension and related improvements. The cities of Azusa and Glendora have agreed on the layout and design of the proposed Citrus Avenue extension improvements. This latest amendment to the Agreement delineates the improvement and indemnification areas based on the latest design. In addition, this amendment defines the responsibilities of both cities in terms of plan check, approvals, and inspections. Both cities will have a role with review, approval, and inspections, but the City of Azusa will take the lead and act as the project manager. For Glendora s cooperation with the latest design, the City of Azusa has offered the City of Glendora $200,000 in Southern California Edison Rule 20A funds to help them with a utility undergrounding project. These funds, which are set aside by Southern California Edison for the sole purpose of undergrounding transmission lines within the City, have been accumulating for several years and there is no plan to utilize them since the City has its own municipal electric utility. Unused Rule 20A funds and can be transferred to another public agency to improve the electrical system within their community. FISCAL IMPACT: The City has approximately $270,884 in Rule 20A funds that can be used for utility undergrounding projects. As part of approving and executing the Supplemental Amended Cost Sharing and Maintenance Agreement and the Memorandum of Understanding, the City of Azusa will transfer $200,000 of its Rule 20A Funds to the City of Glendora. Prepared by: Daniel Bobadilla, P.E. Director of Public Works/City Engineer Reviewed and Approved: Troy L. Butzlaff, ICMA-CM City Manager Attachments: 1) Original Agreement: May 15, 2006 2) Amendment: November 7, 2011 3) Proposed Amendment 4) Rule 20A Funds MOU
ATTACHMENT 1
ATTACHMENT 2 AMENDED COST SHARING AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF AZUSA AND THE CITY OF GLENDORA EXTENSION OF CITRUS AVENUE AND RELATED IMPROVEMENTS 1. PARTIES AND DATE. This Amended Cost Sharing and Maintenance Agreement ("Agreement") i Made and entered into this 7 th day of November, 2011 by and between the City of Azusa, a California municipal corporation located at 213 East Foothill Boulevard, Azusa, California 91702, ("Azusa") and the City of Glendora, a California municipal corporation located at 116 East Foothill Boulevard, Glendora, California 91741 ("Glendora"). Azusa and Glendora are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement 2. RECITALS. 2.1 Monrovia Nursery Project. On February 3, 2003, the Azusa City Council certified the EIR for the Monrovia Nursery Specific Plan, for development of the approximate 489- acre Monrovia Nursery site primarily located in the City of Azusa. The Specific Plan provides for development of up to 1,250 dwelling units, 50,000 square feet of commercial space, parks, open space and a school ("Project"). 2.2 Settlement Agreement. In response to concerns expressed by the City of Glendora, Azusa agreed to incorporate certain modifications and conditions to the Project including the construction of a railroad bridge and grade-separated crossing of the Citrus Ave. extension. On or about March 18, 2003, the City of Azusa, Monrovia Nursery Company, and the City of Glendora entered into a Settlement Agreement addressing Glendora's concerns regarding the EIR. 2.3 Citrus Avenue Extension and Improvements. The developer of the Monrovia Nursery Project ("Developer") desires to develop the Project in accordance with the approved entitlements and the Settlement Agreement. One of the conditions of approval of the Settlement Agreement requires the Developer to construct certain street improvements, including an extension of an existing street known as "Citrus Avenue" and other street improvements ("Citrus Avenue Extension and Improvements") within the corporate boundaries of the City of Glendora, in a manner acceptable to the Glendora City Engineer. Furthermore, the Project also includes the construction of a grade-separated railroad crossing and bridge structure which has been completed. 2.4 May 15, 2006 Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora. On May 15, 2006, the Parties entered into a Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora. This Amended Agreement shall supersede the May 15, 2006 Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora in its entirety. 2.5 General Purpose of Agreement. Since the Citrus Avenue Extension and Improvements will (1) require immediate acceptance into the Glendora street system by the City of Glendora; and (2) require immediate maintenance by an agency. The City of Glendora no longer directly benefits from the Citrus Avenue Extension and Improvements. Therefore the Parties have agreed to enter into this Amended Agreement which shall supersede the May 15, 2006 Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora. The City of
Azusa shall perform all maintenance and pay for all maintenance costs for the Citrus Avenue Extension and Improvements upon the terms and conditions set forth in this Agreement. 3. DEFINITIONS. 3.1 "Citrus Avenue Extension and Improvements." "Citrus Avenue Extension and Improvements," as used in this Agreement refers to the portion of Citrus Avenue to be extended from the future Monrovia Place to Foothill Boulevard. 3.2 "Maintenance" or "Maintain." "Maintenance" or "Maintain," as used in this Agreement, means repair, replacement or removal of any of the following items related to the Citrus Avenue Extension and Improvements: sidewalks, retaining walls, sump pumps, pavement, curb & gutter, catch basins, graffiti, parkways, landscaping, lighting, striping, signage, sewer and storm drain. 3.3 "Maintenance Costs" "Maintenance Costs" as used in this Agreement, means the costs associated with the repair, replacement or removal of any of the following items related to the Citrus Avenue Extension and Improvements, including, but not limited to maintenance, repair or replacement of sidewalks, retaining walls, pavement, curb & gutter, catch basins, graffiti, parkways, lighting, landscaping, retaining wall maintenance, striping, signage, sump pumps, sewers and storm drains. 4. TERMS. 4.1 Recitals. The Parties agree that the Recitals stated above are true and correct. The Recitals and Exhibits are hereby incorporated herein and made an operative part of this Agreement, 4.2 Acceptance by Glendora. Glendora shall undertake all actions necessary to secure acceptance of the Citrus Avenue Extension and Improvements and related rights-of-way located within the boundaries of the City of Glendora into the Glendora street system. Glendora's acceptance of the Citrus Avenue Extension and Improvements shall be contingent upon finding that the Citrus Avenue Extension and Improvements were constructed in accordance with Glendora's standard specifications for such streets and improvements, as approved by the Glendora City Engineer in -accordance with the Settlement Agreement, Glendora's acceptance shall not be unreasonably withheld. 4.3 Responsibility for Maintenance Costs. The Parties agree that the City of Azusa shall pay one hundred percent (100%) of the Maintenance Costs for the Citrus Avenue Extension and Improvements beginning on the date of acceptance by the City of Glendora of the Citrus Avenue Extension and Improvements into the Glendora Street system. 4.4 Term. The term of this Agreement shall be in perpetuity unless earlier terminated as provided herein, The Parties shall meet all the responsibilities established under this Agreement. 4.5 Responsibilities of Azusa. 4.5.1 Maintenance and Payment. Azusa agrees to Maintain and to pay for one I I -07-I I - Attachment - Citrus Ave Agreement with Glendora.doc
hundred percent (100%) of the Maintenance Costs for the Citrus Avenue Extension and Improvements. If Glendora pays for some of the maintenance Costs, Azusa shall reimburse Glendora for said costs within sixty (60) days of Azusa's receipt of an invoice from Glendora. 4.5.2 Standard of Care; Performance of Employees. Azusa shall perform all maintenance obligations under this Agreement in a skillful and competent manner, consistent with the standards employed for other streets in the Azusa street system. Azusa represents and warrants that it shall use employees, contractors-and subcontractors that possess the skill in the professional calling necessary to perform the maintenance obligations required under this Agreement. Finally, Azusa agrees and represents that it, its employees, contractors and subcontractors shall be required to have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the maintenance obligations. 4.6 Responsibilities of Glendora. 4.6.1 Encroachment and Excavation Permit. Glendora agrees to grant Azusa an annual no fee encroachment and excavation permit within the Citrus Avenue Extension and Improvements for maintenance of the Citrus Avenue Extension and Improvements using the same maintenance standards as other similar streets in Glendora. 4.7 Azusa's Representative. Azusa hereby designates its City Manager or designee to act as its representative for the performance of this Agreement ("Azusa's Representative"). Azusa's Representative shall have the power to act on behalf of Azusa for all purposes under this Agreement. Glendora shall not accept direction or orders from any person other than Azusa's Representative. 4.8 Glendora's Representative. Glendora hereby designates its City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("Glendora's Representative"). Glendora's Representative shall have full authority to represent and act on behalf of Glendora for all purposes under this Agreement 4.9 Notices. All notices permitted or required under this Agreement shall be given to the respective parties at-the following address, or at such other address as the respective parties may provide in writing for this purpose: GLENDORA: AZUSA: City of Glendora 116 East Foothill Blvd. Glendora, CA 91741 Attn: City Manager City of Azusa 213 East Foothill Boulevard, Azusa, CA 91702 Attn: City Manager Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the US Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice 11-07-11 - Attachment - Citrus Ave Agreement with Glendorasloc
occurred, regardless of the method of service. 4.10 Cooperation; Further Acts, The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement 4.11 Indemnification. (a) Azusa shall defend, indemnify and hold Glendora, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of the Azusa, its officials, officers, employees, agents, consultants and subcontractors arising out of or in connection with the performance of the this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Azusa shall defend, at Azusa's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Glendora, its directors, officials, officers, employees, agents or volunteers. Azusa shall pay and satisfy any judgment, award or decree that may be rendered against Glendora or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Azusa shall reimburse Glendora and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Azusa shall not be required to indemnify and hold harmless Glendora for liability attributable to the sole fault of Glendora, provided such fault is determined by agreement between the Parties or the findings of a court of competent jurisdiction. In cases where it has been shown that Glendora is shown to have been at fault and where Glendora's fault accounts only for a percentage of the liability involved, the obligation of Glendora will be for that entire portion or percentage of liability not attributable to the fault of the Azusa. (b) Glendora shall defend, indemnify and hold Azusa, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, darhage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Glendora, its officials, officers, employees, agents, consultants and subcontractors arising out of or in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Glendora shall defend, at Glendora's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Azusa, its directors, officials, officers, employees, agents or volunteers. Glendora shall pay and satisfy any, judgment, award or decree that may be rendered against Azusa or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Glendora shall reimburse Azusa and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided, Glendora's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Azusa, its directors, officials officers, employees, agents or volunteers, Glendora shall not be required to indemnify and hold harmless Azusa for liability attributable to the sole fault of the Azusa, provided such fault is determined by agreement between the Parties or the findings of a 11-07-11 - Attachment - Citrus Ave Agreement with Glendora.doc
court of competent jurisdiction, In cases where it has been shown that the Azusa is shown to have been at fault and where the Azusa's fault accounts only for a percentage of the liability involved, the obligation of the Azusa will be for that entire portion or percentage of liability not attributable to the fault of the Glendora. 4.12 Attorneys' Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs and expenses Of such action. 4.13 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof This Agreement may only be modified in writing and signed by both Parties. 4.14 Governing Law; Venue This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a court of competent jurisdiction situated in Los Angeles County, California. 4.15 Construction; References; Captions. Since the Parties or their agents have participated fully in preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Part. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 4.16 Amendment; Modification.-No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 4.17 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 4.18 Authority to Enter into Agreement. Each Party represents that they are fully competent and capable to execute, deliver, and perform this Agreement. 4.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 11-07-11 - Attachment Citrus Ave Agreement with Glendora.doc
CITY OF AZUSA CITY OF GLENDORA BY:,Ce. Joe R. Rocha Mayor Doug & F. Te sitor Mayor Attest: -of Attest: Vera Mendoza City Clerk Approved as to Form: Kathlken Sessrnan City Clerk Approved as to Form: rtm1-te O By: ca,dt Sonia Carvalho City Attorney By: DI) Gkit4 D. Wayne Leech City Attorney 11-07-11 - Attachment - Citrus Ave Agreement with Glendoraidoc
ATTACHMENT 3
ATTACHMENT 4 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF AZUSA AND THE CITY OF GLENDORA FOR THE TRANSFER OF RULE 20A FUNDS This Memorandum of Understanding ( MOU ) is entered into as of, 2015, for reference purposes only, by and between the City of Azusa, a California municipal corporation with its principal place of business at 213 E. Foothill Boulevard, Azusa, CA 91702 ( Azusa ) and the City of Glendora, a California municipal corporation with its principal place of business at 116 E. Foothill Boulevard, Glendora, CA 91741 ( Glendora ). Azusa and Glendora are sometimes individually referred to herein as Party and collectively as Parties. RECITALS A. Electric utilities collect and annually allocate funds to communities to convert overhead electric facilities to underground electric facilities ( Rule 20A Funds ). B. Glendora is actively planning one or more projects to underground overhead electric facilities that qualify for the application and use of Rule 20A Funds (collectively the Projects ); however, Glendora s current allocation of Rule 20A Funds is insufficient to move forward with such Projects as planned. C. Southern California Edison ( SCE ) currently holds a balance of two hundred seventy thousand eight hundred eighty four dollars and no cents ($270,884.00) in Rule 20A Funds for the benefit of Azusa ( Azusa Allocation ). D. Glendora desires to receive only a two hundred thousand dollars and no cents ($200,000.00) portion of the Azusa Allocation ( Glendora Portion ) to use for Glendora s intended purpose of undergrounding electric facilities in connection with the Projects and Azusa desires to transfer the Glendora Portion to Glendora in exchange for Glendora s execution of that certain Supplemental Memorandum of Understanding Regarding the Construction of Improvements Identified in the Amended Cost Sharing and Maintenance Agreement ( Supplemental MOU ). E. The parties intend by this MOU to memorialize the nature of their respective roles, promises and obligations relating to the transfer of the Glendora Portion. AGREEMENT Now THEREFORE, based on and in consideration of the recitals set forth above, the Parties hereto agree as follows: 1. Intention and Purpose. The intention of this MOU is for Azusa to transfer the Glendora Portion to Glendora in consideration for Glendora s execution of the Supplemental MOU. The Parties hereto intend for the execution of this MOU to be a condition precedent to the execution and effectiveness of the Supplemental MOU. 2. Term. The term of this MOU shall commence on the Effective Date, as defined in Section 3(A), and shall expire when the transfer of the Glendora Portion is complete. 45635.01000\10977977.7
3. Party Obligations. A. Azusa agrees to transfer and assign its rights and interest in the Glendora Portion to Glendora, and Glendora agrees to receive the Glendora Portion and execute the Supplemental MOU in accordance with the terms of this MOU. Azusa agrees to cooperate with Glendora and SCE in order to effectuate the transfer of the Glendora Portion to Glendora. This MOU shall be subject to the approval of the City Council of Azusa and the City Council of Glendora and shall become effective on the date when both such approvals have been obtained (the Effective Date ). Notwithstanding the foregoing, if this MOU has not become effective as of December 31, 2015, then either Party may terminate this MOU on five (5) business days written notice to the other Party. B. Within five (5) business days of the Effective Date, Azusa shall deliver a written request to SCE, with a copy to Glendora, making a formal request to transfer and assign the Glendora Portion of the Rule 20A Funds contained in the Azusa Allocation to and for the benefit of Glendora. Azusa shall cooperate in good faith with Glendora to provide any additional documentation or information that is reasonably requested by SCE to complete the transfer. Glendora acknowledges and agrees that it has conducted its own investigation as to the applicability and transferability of the Glendora Portion for use in the Projects and that Azusa has not made any representation or warranty to Glendora with respect to same. The actual use of the Glendora Portion by Glendora shall be subject to the rules and procedures adopted by SCE and such other conditions or requirements as are set forth in the Public Utilities Code. 4. Indemnification. Glendora shall indemnify, defend and hold harmless Azusa, its elected and appointed officials, officers, employees and agents, from any claim, damage or liability arising in connection with the transfer or the use of Rule 20A Funds in the Glendora Portion from the Azusa Allocation in connection with the Projects. 5. Notices. All notices to be given pursuant to this MOU shall be delivered in person or by commercial overnight delivery to the address of the Party set forth above and addressed to the City Manager of such Party and shall be effective upon receipt. Notice may further be given by electronic means, provided, however, that such notice shall not be deemed effective unless it is acknowledged in writing by the recipient of such notice. 6. Termination. In the event that either Party is in breach of its obligations as set forth in this MOU, then the Party not in breach shall have the right to terminate this Agreement on ten (10) business days written notice to the defaulting Party in breach unless the default is cured within such notice period. Upon termination for breach, the non-defaulting Party may exercise any right or remedy which it may have under applicable law. 7. Counterparts. This MOU may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this MOU attached thereto. 8. Severability. If any term, covenant or condition of this MOU shall, to any extent, be invalid, void, illegal or unenforceable, the remainder of this MOU shall not be affected thereby, and each other term, covenant or condition of this MOU shall be valid and be enforced to the fullest extent permitted by law. 45635.01000\10977977.7
9. Governing Law. This MOU is made and entered into in the State of California and shall be governed by and construed and enforced in accordance with the laws of the State of California. The venue for resolving any disputes regarding this agreement shall be within the County of Los Angeles. 10. Amendment. No modification, variation or amendment of this MOU shall be effective without the written consent of all of the parties to this MOU at the time of such modification, variation or amendment. 11. Successors. This MOU shall be binding on and inure to the benefit of each of the Parties successors and assigns. 12. Attorneys Fees. If any legal proceeding, including an action for declaratory relief, is brought to enforce or interpret provisions of this MOU, the prevailing party will be entitled to reasonable attorneys fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which the party maybe entitled. [Signatures on following page] 45635.01000\10977977.7
SIGNATURE PAGE TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF AZUSA AND THE CITY OF GLENDORA FOR THE TRANSFER OF RULE 20A FUNDS Date. IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the Effective CITY OF AZUSA, a California municipal corporation CITY OF GLENDORA, a California municipal corporation By: By: Name: Joseph R. Rocha Title: Mayor Attest: Name: Karen K. Davis Title: Mayor Attest: By: By: Jeffrey L. Cornejo, City Clerk Kathleen R. Sessman, City Clerk Approved as to form: Approved as to form: By: By: City Attorney City Attorney Best Best & Krieger LLP Leech & Associates 45635.01000\10977977.7