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Home My WebLink AboutORANGE COUNTY FLOOD CONTROL District (2) -1998 - PROJECT: Edna Park City of Santa Ana Project No. EF03464 Facility E01, Parcel 1501 Amended and Restated Agreement For Use Of Orange County Flood Control District Property July, 1998 - Amended and Restated Agreement No. 097-116 (limncr!y ('7{) 7) - - PROJECT: Edna Park City of Santa Ana Project No EF03464 Facility E01, Parcel 1501 Amended and Restated Agreement No. 097-116 TABLE OF CONTENTS PARAGRAPHS PAGE NO Purpose 2 2 Term 3 3 Responsibilities 4 4 Allowahle Uses of Property 6 5 Notices 6 6 Non-Discnmination 7 7 Hold Harmless 7 8. Termination 7 9. Condition of Area Upon Termination 7 10 Assignment 7 11. Applicable Law 8 12 Entire Agreement/Modifications 8 Signature Page 9 EXHIBITS Exhibit A - Location Map Exhibit B - HanHlluus MClteriClls Assessment for Edna Park, doted April 9 1 g98 Project Edna Park - City of Sarlld A7';; Projf'ct No. [F03464 Facility E01, Parcel 1 !'ill 1 -- Agreement No. D97-116 {Formerly No, C7G7} 3 AMENDED and RESTATED AGREEMENT FOR USE OF ORANGE COUNTY FLOOD CONTROL DISTRICT PROPERTY 4 This Amended and Restated Agreement replaces Agreement No. C767 in Its entirety, and is made and entered into this Qj':j- day Of~, 1998. BY and BETWEEN (-J The Orange County Flood Control District, a body corporate and politic, hereinafter referred to as "DISTRICT," 8 9 AND ~O The City of Santa Ana, a municipal corporation, hereinafter referred to oS "CITY." II Which are sometimes hereinafter referred to individually as "PARTY" or jointly as "PARTIES." I/' RECITALS 14 WHEREAS, DISTRICT owns certain real property, hereinafter referred to as "PROPERTY," located in the 15 City of Santa Ami, which has been determined to be not yet required for the needs of DISTRICT, and which is shown b on Exhibit "A," attached hereto and incorporated by reference herein: ,md j WHEREAS, in accordance with the Orange County Flood Control Act, DISTRICT's Board of Supervisors, 1 determined previously that recreational use of the PROPERTY would not impair or diminish Its existing or probable 1'-) future use requirements for flood control or water cunservation purposes; and 20 WHEREAS, on January 15, 197::, DISTRICT and CITY entered into Agreement C767, hereinafter to b 21 referred to ::IS "Original Agreement," wherein CITY, at no cost to DISTRICT, was given the rigtlt tu Bnter, develop and use the PROPERTY as a CITY park facility for a period of twenty-five (25) years, pruvided that the plans tor sLlch 23 recreational use be subject to careful review by DISTRICT; and 24 WHEREAS, the term of s::Iid Original Agreement expired on January15, 1998, and since that time the CIT /'~ has expressed a willingness to continue to operate and maintain the public park facility, more commonly known a Hmm:erlniipk!sa (rev4/15) Project: Edna Park ~ City of Santa An"a' ProJed No EF01464 Facility E01, Parcel 1501 1 "Edna Park," on DISTRICT PROPERTY, forthe enjoyment and bel1efit of the citizens of Santa Ana and the County 0 - Agreement No. D97-116 (Formerly No. C767) 2 Orange; and 3 WHEREAS, the PARTIES have fig reed however, that prior to extending the term of the Original Agreement, 4 it would be in their best interests, to amend and restate the terms and conditions of said Original Agreement, so as t ensure that the document is consistent with more recerlt agreements entered into by the PARTIES; and b WHEREAS, as part of the PARTIES' plan lo update Hle information contnined in the Original Agreement CITY requested that DISTRICT authorize prepal'ation of a Hazardous Materials Assessment (HMA) of th 8 PROPERTY; and Q WHEREAS, a PhAse I Environmental Assessment, entitled "Hazardous Materials Assessment for Edna l;J Park" dated April 9, 1998, has been prep8red by Public Facilities and Resources Department (PFRD), Program II Developmenl Division/EnvirullfTlental Resources. a copy of which is <:lttached 8S Exhibit B, and incorporated b .:..: reference herein; and u WHEREAS, based upon the results of the HMA discussed in Exhibit B, it has been determined that no 14. evirJence of environmental degradation as a result of hazardous materials contamination, is currently present on the 15 PROPERTY; and ~G WHEREAS, the PARTIES further agreed that at the proposed conclusion of the term of thiS Amended andl Restaled Agreernent, or uriless lerminated sourll::!r by either PARTY. DISTRICT shall authorize another such Phase i' 17 It: HMA be performed, to ensure that CITY's continued use of PROPERTY, has flot furlher degraded or deter-iarated 111 H condition of the PROPERTY. 20 NOW THEREFORE, in an effort to maintain the cooperative relationship Ihal DISTRICT alld CITY hav 21 developed regarding CITY's use, operation and maintenance of the PROPERTY as a recreational facility, the '>-' ':L PARTIES do herehy agree to amend and restate the terms and conditions of said Original Agreement as follows: .2 -~ 1. PURPOSE 24 The purpose of this Amended and Restated Agreement is to extend tile term for CITY's use of ;"," DISTRICT's PROPERTY, and to update, amend and restate the terms and conditions of said Original Agreement. Hmm:ednapkJsa ? (rev4/15) Project Edna Park - Cily of S"mla A~ ProJPct No. [F03464 Facility E01, ParceI1~,Q1 - Agreement No. D97-116 (Formerly No, C767) 2. TERM a The term of this Amended and Restated Agreement shall commence upon executiufl b o DISTRICT's B031-d of Supervisors, and shall remain in full force and effect through January 14, 2018, subject to th ~. 1) DISTRICT's Director of PFRD, hereinafter referred to as "DIRECTOR," or hi 4 following conditions: G designee, shall at all times have the autllUlity tu IBVlew and evaluate this Amended and Restated Agreement tOI determine whether it is in DISTRICT's best interest to continue said relationship with CITY for use of DISTRICT' 7 8 PROPERTY, and to detennine whether such usage is consistent with DISTRICT's flood control or water preservation 9 purposes, or with any proposed future uses for the PROPERTY, 10 2) if DIRECTOR determines ttlClt continuation of this Amended and Restated 1" Agreement is not in DISTRICTs best interest, DiSTRICT shall deliver to CITY a written Notice of Termination, ir 1:0' accordance with the procedures outlined if) Paragraphs 5 and 8, (NOTICES) and (TERMINATION), respectively, below, stating the renson(s) for termination, if any such reason IS required, and the date upon wtlich said termination L4 shall become effective. 1S b. The term of this Amended and Restated Agreement shall not exceed twenty (20) year 1f unless extended in writing upon mutual8greement by butt1 PARTIES, l7 c Either PARTY has Hie authority to terminate this Amended and Restated Agreement prior t lli the termination date specified above, if the PARTY initiating the termination serves a thirty (30) days Notice 0 I 'J Termination to the other PARTY, as described In Paragraphs 5 and 8, (NOTICES) and (TERMINATION), 20 respectively, below 2 _ 3. RESPONSIBILITIES 22 a CITY shall 15 1) designate the Executive Director of Recreation and Community Services Agency, or an 24 authorized designee, to be CITY's liaison for all matters pertaining to this Amended and Restated Agreement. >~L~ 2) maint<:lin the right to enter upon, develop and use H18 PROPERTY as a CITY park facility, at Hmm:ednapk/s<.l J (rcv4/15) -- Project Edl1d Pdrk - City of Santa Ana Project No. EF03464 Facility [01, Parcel 1501 1 no cost to DISTRICT, so long ClS Hlis Amended and Restated Agreement remains in effect. This right shall be - Agreement No, D97-116 (Formerly Nu. C767) subject to the condition that all plans for development or improvement of said PROPERTY, shall first be approved i _~ writing by DIRECTOR. so as to ensure that the use does not impair DISTRICT's troadworks adjacent tn th. 4 PROPERTY. ') 3) maintain and operate all facilities within CITY pork at no cost to DISTRICT, in Clccurdance 6 with Paragraph 4, (ALLOWABLE USES OF PROPERTY), below. 4) be fully responsible, at no cost to DISTRICT, for keeping the PROPERTY free and clear 0 8 all litter and trash generated from use of CITY's park, to the satisfaction of DIRECTOR 5) have the option to remove any and all pRrk improvements from the PROPERTY. (, llotwithstandirll::j their becoming affixed to and pal1 of the realty, witt)in a reasonable time after receipt of a Nolice 0 11 Termination from DISTRICT L' 6) not store or permit toxiL: UI 1-laLardous matel-ials within the PROPERTY, from the date tha 1.3 this Amended and Restated Agreement is executed, except that CITY may store solvents, fuels and other materinlc- _4 normally required or used in its operation at the park on the PROPERTY in accordance with all applicable laws. I c , CITY breaches the obligations stated herein, or if r:ontarnination of the PROPERTY by toxic or haL81-dous material iC otherwise occurs tor which CITY is legAlly liable to DISTRICT for damage resulting tbel-efrom, then CITY shal 1"/ indemnify, defend and hold DISTRICT harmless from any and all claims, judgements, damages, penalties, fines, 18 costs, liabilities, or losses (including without limitation sums paid in settlement of claims, attorneys fees, consultan 19 fees, and expert witness fees) which arise during or after the lease term as a result of such contamination. Thi 20 indemnification includes without limitation costs and penalties paid, if any, incurred by DISTRICT in corHlec:tion wit any investigation of site conditions or ElIlY cleanup, remedial, removnl, or restoration wurk required by any federal, 22 state, or-local governmental entity because of toxic or ha7ardous materi<lls being preser\l in the soil or ground wate 2'3 of ttle PROPERTY. CITY stlall promptly take all actions at its sole cost and expense as are necessary to clean. ~~ 4 remove, and restore the PROPERTY to its condition prior to the introduction of such toxic or ha7ardous materials by 25 CITY, provided CITY shall first have obtained DISTRICT's approval and the approval of any additional, necessary Hmm:ednapk/sa 4 (rev4/15) - Project" Erin;; Park - City of Santa Ana Project No. EF03464 Facility E01, f-'arcel15Ul governmental entities. As used her-ein, the tenn "toxic or hazardous material" means any tOXIC or hazardous - Agreement No. 097-116 (Form~rly No. C767) " substance, material, or waste which is or shall become regulated by any governmentAl entity, including withau limitation, DISTRICT acting in its governmental capacity, the State of California or the government of the United .; StAtes of America. .'l 7) acknowledge that the primary purpose of PROPERTY is for flood control, and accordingly, 6 CITY agrees to f81ease DISTRICT from any and all damages, costs, and expenses arising out of or relating to 7 UclfTlage to CITY property, or damage or injury ot any kind to CITY's invitees, lir;ensees, employees, agents :l resulting from overflow conditions or erosion along the adjFlr;ent r;hannels, except to the extent caused by the willfu '-i or sole negligence or misconduct of DISTRICT. ~ 0 b, DISTRICT shall: 11 1) designate the DIRECTOR to be DISTRICT's liaison for all mAtters pertaining to thi 12 Amended and Restated Agreement 2) retain the right to enter on or disturb the surface or sub-surface of the PROPERTY at an 4 time in order to maintain, repAir, reconstruct, or enlmge the flood control facility. DISTRICT shall only be responsihle for restoring any section of ttle affected PROPERTY to the same grade or level that existed prior to l.\J DISTRICT's entry on PROPERTY, and is not responsible for replacing park improvements 17 3) r-eview this Amended and Restated Agreement periodically for the purpose of determiflirlg ttl<olt CITY's usage of PROPERTY IS not 111 consistent with DISTRICT's existing or proposed future uses for th 19 PROPERTY, :'(: 4) be responsible for acquiring or granting easements, <'HId/or making adjustment{s) to the )1 boundary lines, as deemed necessary in order to carry out DISTRICTs duties, responsibilities and/or the plJrpose r) of the Omnge County Flood Control District Act. If necessary, any such changes and/or adjustments to the 23 boundary lines shall be ac.;complished upon mutual agreement between the PARTIES, in writing and in ac..;cordance 2,1 with Paragraphs 5 and 12, (NOTICES AND ENTIRE AGREEMENT! MODIFICATIONS), respectively, below, and r, shallllot require additional Board Action Hmm.f:.'dndpk/5a s (rev4/15) Project Edna P"uk - City of Santa Ari'r Project No. EF03464 Facility E01. Parcel 1501 1 5) be responsible for obtaining a "Phase I Environmental Assessment" of the PROPERTY. at - Agreement No. 097-116 (Formerly No. C7G?) .2 the time that this Amended and Restated Agreement expires, or is terminated in accordance with Paragraph (TERMINATION) below, in order to assess and/or verify that the condition of the PROPERTY has not deteriorated 4 as a result of hazardous materials contamination, since the date that this Amended and Restated Agreement wa executed by DISTRICT's Board of Supervisors u 4. ALLOWABLE USES OF PROPERTY 7 a. CITY shall have the exclusive right to 01-l8late and maintain Edna Park on DISTRIC t" PROPERTY as a recreational facility, in accordance with the terms and conditions contained herein. Accordingly, [, CITY is strictly prohibited from entering intu allY business activity or venture on the PROPERTY. fur lhe purpose 0 I (j generating revenue or profits. jj b. CITY agrees that no business shall be conducted or ol-lerated at the facility, which would be 12 considered in violation of the terms of this Amended and Restated Agreement, or of any park regulation, CITY or 14 DISTRICT code or POliCY, order of law, statute, bylaw ur ordinance of a governmental agency having JUriSdiction j 5. NOTICES a. Notices or other communicatIons which may be reqUired or prOVided under the terms ot th! ! .' ~ ..J 1 (~ Arm~nded and Restated Agreement shall be given as follows DISTRICT: DIrector Public FaCilities And Resources Del-l<:lrtl1lenl County of Granoe P.O. Box 4048 Santa Ana, CA 92702-4048 FaCSimile No (714) 834-2395 18 10 20 CITY: Executive Director Recreation and Community Services Agency City of Santa Ana P.O. Box 1988 - M23 Santa Ana, CA 92702 Facsimile No. (714) 571-4235 21 2 :; All notices :;hall be deemed effective when in writing and delivered in person or deposited in the United Stales mail, 7,1 first class, postage prepaid and addressed as above. Notwithstanding the above, DISTRICT and CITY may als ',!r .c._I provide notices by facsimile transmittal. and any such notice so given. shall be deemed to have been given upon Hrllln:ednapk/sa 6 (rev4.'15) Project: Edna Park - City of Santa A~ Projf'ct No EF03464 Facility E01, Parcel 1501 - Agreement No. 097-116 (Formerly No. C767) 1 receipt Any notices. correspondence. reports and/or stAtements authorized or required by this Amended and RestAted Agreement, <:lddressed in any other tasrllon shall be deemed not ~iven. 3 b. The PARTIES hereto may change the addresses to which notices Are to be sent by giving 4 notice of such change to the other PARTY. 6. NON-DISCRIMINATION , b CITY agrees not to discriminate as to hours of use, fees. reselvation privileges or any other use 7 privileges. based upon race, color, religion POlitiCAl pmsuasion or residence. 8 7. HOLD HARMLESS :;1 CITY agrees to save, defend with counsel and hold harmless 311 elected and appuinted officials. If:. employees, aoents, and officers of DISTRICT and County of Orange, from all claims or actions of any kind 0 11 nature including, but not limited to, costs ot defending such claims or actions arising from the development or use 1? of PROPERTY as a park facility. I' , 8. TERMINATION 14 During the term of this Amended cHId Restated Agreement, either PARTY may terminate thi c Amended and Restated Agreemerlt with or without cause, upon delivery to the other PARTY of a thirty (30) day_ u; notice of intent to terrnirlate. Notice of termination shall be in writing and shall state the cause for termination i l cause is required, cmu the date upon which such termination is effective. Notice shall be served as provided in 18 Paragraph 5. (NOTICES), above. q 9. CONDITION OF AREA UPON TERMINATION 20 Except as otherwise agreed to rlerein, upon termination of this Amended and Restated Agreement, .!-.i DISTRICT shall have the right to require tl1at CITY shall redeliver possession of said PROPERTY to DISTRICT in 22 substantially the same condition H1Clt existed immediately prior to CITY's entry thereon, reasonable wear and tear L::! acts of God or war, excepted. 1.4 10. ASSIGNMENT 2'J Any request for transfer or assigrunent of CITY's II1terest And/or responsibilities in facility, or any pArt Hmm:ednapk/s<:l 7 (rev4i15) "- Project: Edna Park - City lIf Scinta Ana Project No EJ-U:3464 Facility E01, Parcel 1501 -- Agreement No. 097-116 (Formerly No. C767l 1 or portion thereof, shall be in writing and 3pproved by DISTRICT. FClilure tu olJtaill DISTRICT's written approval 0 any proposed transfer or assignment will render Il1is Amended and Restated Agreement terminated, as specified in Paragraph 8, (TERMINATION), above. 4 11. APPLICABLE LAW , This Amended and Restated Agreement has been negotiated alld executed in the Stale of California 6 and shall be governed by and construed ill accordance with the laws of the State of California. In the event of an " . legal action to enforce or interpret this Amended and Restated Agreement, the sole and exclusive venue shall be 8 court of competent jurisdiction located ill Oran~e County, California, and the PARTIES hereto agree to and do q hereby submit to the jurisdiction of such COlllt, notwithstandIng Code of Civil Procedure Section 394. 1U The PARTIES have specifically agreed, as pdrt of the consideration given and received for entering jJ into this Amended and Restated Agreement. to waive any and all ri~hts to request that an action be transferred fo 12 trial to another county under Code of Civil Procedure Section 394. 13 12. ENTIRE AGREEMENT/MODIFICATIONS ~ .:I This Amended and Restated Agreement, together with nny exhibits attactwd hereto and " incorporated by reference, S1'% forth all of the understandings of the PARTIES with regard to its subject matter. N 1(', verbal agreement or implied covenant shall be twld tu vary the provisions hereof. Any modification of thiS Amended 17 and Restated Agreement must be in writing and properly executed by both PARTIES. 18 III I ~, III 20 II/ 21 23 24 " L' Hmm:ednapk/Sd 8 (rev4/15) Project Edna Park - City of Santa AM Project No. EF03464 F<:lcility E01. Parcel 1501 - Agreement No. D97-116 (F ormerly No. C767) IN WITNESS WHEREOF, the PARTIES hereto have executed Ihis Amended and Restated Agreement, bl duly authorized representatives, as of the delte shown above, ATTEST: THE CITY OF SANTA ANA A municipal corporation of the State of California 4 G Janice C. Guy Clerk of the COlJncil " , APPROVED AS TO FORM APPROVED AS TO CONTEN p: (/~ ~ 1:-: ~~~ f /}Zo-""L .fl, Joseph W Fletcher City Attorney David . Ream City Manager jj RECOMM/;l/fD FO~ APPROVAL ~/J)jt \ ~ Cleve Williams. Executive Director Recreation 3fld Community Services Agpncy 1', " , 4 ORANGE COUNTY FLOOD CONTROL DISTRICT A body corporate and politic in the State of California E> .:..6 17 DATE: JUL 2 1 19911 BY: H SIGNED AND CERTIFIED THAT A APPROVED AS TO FORM: COPY OF THIS DOCUMENT HAS LAURENCE M, WATSON BEEN DELIVERED TO THE COUNTY COUNSEL CHAIRMAN OF THE BOARD ~ BY ,\)"LVlnl/nvJz ,[(;l~BY~/ ~ Darlene J Bloom T Deputy Clerk of the Boal-d of Supervisors Orange County Flood Control District Orange County, California to.J7-J9F: Dale 1 ~) )Ij 21 22 " 24 HMM:ednapkfsa Attachment. Exhibit A (Location Map) Exhibit 8 (HaZArdOUS Materials Assesstnellt for Edna Park, dated April 9, 1998) >", Hmm:ednapklsa 9 (rev4l15) - TRASK WESTMINSTER 1~-r:-,..". ~ " r" Y ...-1~ +- y~ 21ST A'/~ ~ ' ,,'<J ,'" "" .:' <';; ./ < ",'i/ (, 20TH >-'V~ -,..V'~ ~ ~ 18TH - ~~ ~~i>~ AV. '" on & ~ Q:' 17TH EXHIBIT A ST, ST. ~ z o " I LOCATION MAP I EXHIBIT B - - COUNTY OF ORANGE PUBLIC FACILITIES AND RESOURCES DEPARTMENT HAZARDOUS MATERIALS ASSESSMENT FOR EDNA PARKIN THE CITY OF SANTA ANA April 9, 1998 Prepared By Environmental Resources