HomeMy WebLinkAbout25E - AGMT - OPERATION AND MAINTENANCE OF PROPERTIESREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 4, 2012
TITLE:
AGREEMENT WITH ORANGE COUNTY
FLOOD CONTROL DISTRICT FOR
OPERATION & MAINTENANCE OF
PROPERTIES LEASED BY THE CITY OF
SANTA ANA
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 1" Reading
? Ordinance on 2"d Reading
? Implementing Resolution
? Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute agreement with the Orange County
Flood Control District for operation and maintenance of properties leased by the City of Santa Ana
for bike trails and rest areas along the Santa Ana River and Flood Control Channels, subject to non-
substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The City of Santa Ana approved the Santa Ana River Vision Plan on August 7, 2006 and has leased
properties from the County of Orange to construct parks, bicycle rest areas and landscaping to
enhance the open space along the river. In addition, the City has leased County Flood Control
properties in flood channels to construct Class I Bike Trails and has plans to develop additional trail
systems and rest stops on County property. These properties were leased at different times under
different types of maintenance agreements or permits. The County is requesting a master
maintenance agreement be approved for all the properties that will also be used for future
properties the City may be leasing from the County for bikeway and landscape improvements.
Approval of this agreement will not significantly change the current maintenance obligation the city
has with the county on the leased properties.
ENVIRONMENTAL IMPACT
Environmental Review #ER-2012-32 has been completed and Notice of Exemption has been filed
pursuant to the California Environmental Quality Act.
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RFCA - Agmt with OC Flood Control District
September 4, 2012
Page 2 of 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
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Rec. and Com. Svcs. Agency
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Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
AGREEMENT
This AGREEMENT, hereinafter referred to as "AGREEMENT", for the purposes of identification
hereby number D12-015 and dated day of 2012, is
BY and BETWEEN
The ORANGE COUNTY FLOOD CONTROL
DISTRICT, a body corporate and politic,
hereinafter referred to as "DISTRICT",
and
The CITY OF SANTA ANA, a charter city,
hereinafter referred to as "CITY,"
which are sometimes individually referred to as "PARTY," or collectively referred to as "PARTIES."
RECITALS
WHEREAS, CITY approved the Santa Ana River Vision Plan on August 7, 2006 which is shown
on Exhibit A, hereinafter referred to as "PLAN", indicating proposed bikeways and trails along and
adjacent to the Santa Ana River within CITY boundaries;
WHEREAS, CITY is seeking funding opportunities to implement those trails in order to provide
increased opportunities for outdoor recreation and non-vehicular transportation for the general public;
WHEREAS, CITY also desires to construct bikeway and trail improvements within or adjacent to
other DISTRICT right of way within City boundaries;
WHEREAS, CITY completed the construction of a bikeway adjacent to DISTRICT's Santa Ana-
Delhi Channel (F01) within DISTRICT right of way from Railroad to McArthur Blvd, shown on Exhibit B, in
2010 per Orange County Property Encroachment Permit No. 2008-00750;
WHEREAS, CITY agreed to hold DISTRICT harmless for CITY's use of bikeway and agreed to
be responsible, at its own expense, for the operation and maintenance of the bikeway per Orange County
Property Encroachment Permit No. 2008-00750;
WHEREAS, CITY and DISTRICT entered into a Lease Agreement on September 28, 2010
whereby CITY leased Parcels R1551 and R1553 which is Edna Park, and Parcel R1552 shown on Exhibit
C from DISTRICT for the use of the surface as a non-revenue generating public park facility;
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WHEREAS, CITY may in the future desire to construct bikeway and trail improvements adjacent
to Greenville Banning Channel (D03), Santa Ana River Channel (E01), Santa Ana Delhi Channel (F01),
and Santa Ana Gardens Channel (F02) within DISTRICT's right of way within CITY's boundaries, as
depicted on Exhibit D;
WHEREAS, CITY desires to enter into this AGREEMENT with DISTRICT for the operation and
maintenance of all existing and future recreation improvements, except regional bikeway/trail system
along Santa Ana River which is currently operated and maintained by OC Parks, including but not limited
to the improvements included within the PLAN shown on Exhibit A, completed bikeway adjacent to
DISTRICT's Santa Ana-Delhi Channel (F01) shown on Exhibit B, Edna Park shown on Exhibit C),
adjacent to Greenville Banning Channel (D03), Santa Ana River Channel (E01), Santa Ana Delhi Channel
(F01), and Santa Ana Gardens Channel (F02) within DISTRICT's right of way in CITY's boundaries
(hereinafter collectively referred to as "RECREATION IMPROVEMENTS") and adopting a process for
DISTRICT to process encroachment permits allowing CITY to design and construct the RECREATION
IMPROVEMENTS as funding becomes available; and
WHEREAS, DISTRICT has determined that the recreational uses and RECREATION
IMPROVEMENTS proposed and/or constructed by CITY will not impair or diminish existing or probable
future requirements for flood control protection provided such RECREATION IMPROVEMENTS are
constructed in accordance with DISTRICT requirements as determined by DISTRICT in its sole discretion
and RECREATION IMPROVEMENTS are designed, constructed, operated, maintained and used in
accordance with the terms and conditions of this AGREEMENT.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
The intentions of the PARTIES as described in the above recitals are incorporated into this
AGREEMENT.
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Bikeways and Trails in the City of Santa Ana
ARTICLE 1
DESCRIPTION OF PREMISES
1.1. CITY shall be allowed to use DISTRICT's right of way as generally shown on Exhibit D, which
includes DISTRICT's right of way shown on Exhibit A, B, and C and any possible future portions
of DISTRICT's right of way, in accordance with the terms and conditions of this AGREEMENT.
These portions of DISTRICT's right of way shall be referred to hereinafter as the "PREMISES".
1.2. DISTRICT reserves the right in its sole and absolute discretion to amend PREMISES shown on
Exhibit D as needed in the future.
ARTICLE 2
CONSIDERATION
2.1. CITY shall be permitted use of the PREMISES at no cost to CITY when RECREATION
IMPROVEMENTS will be combined with DISTRICT's maintenance roads. CITY shall be
permitted use of the PREMISES per lease agreements in any other situation. CITY agrees,
however, that DISTRICT shall have no financial obligation to contribute to the design,
construction, removal, relocation, reconstruction, and/or maintenance of any RECREATION
IMPROVEMENTS within the PREMISES. Any activity within DISTRICT's right-of-way must be
through County Property Permit process.
2.2. CITY shall be responsible for continuing the operation and maintenance of the RECREATION
IMPROVEMENTS within DISTRICT right of way during the term of this AGREEMENT as defined
in Article 6 below.
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ARTICLE 3
REPRESENTATIVES
3.1. DISTRICT REPRESENTATIVE
Director of Orange County Public Works Department or his designee, hereinafter referred to as
"DIRECTOR," shall be DISTRICT's representative in all matters pertaining to this AGREEMENT.
3.2. CITY REPRESENTATIVE
The Santa Ana City Manager, or an authorized designee, hereinafter referred to as "CITY
OFFICER" shall be CITY's representative in all matters pertaining to this AGREEMENT.
ARTICLE 4
USE OF PREMISES BY CITY AND GENERAL PUBLIC
4.1. PERMITTED USES
CITY shall be permitted to use the PREMISES to build, operate and maintain RECREATION
IMPROVEMENTS for use by the general public.
4.2. CITY'S RIGHTS ARE NONEXCLUSIVE
CITY's use of the PREMISES shall be nonexclusive and CITY acknowledges that the primary
purpose of DISTRICT's right of way, including, but not limited to PREMISES is for flood control
purposes and to protect the safety, health and welfare of the public. Consequently, DISTRICT
reserves the right in its sole and absolute discretion to use the PREMISES as necessary to
access, construct, improve, expand, enlarge, repair, and maintain the DISTRICT flood control
facilities, and all other purposes permitted by law. At its own expense, CITY shall be responsible
for the rerouting of any pedestrian/bikeway and/or trail caused by the relocation of the
RECREATION IMPROVEMENTS whenever DIRECTOR determines such RECREATION
IMPROVEMENT on PREMISES conflicts with DISTRICT purpose as described above, and CITY
agrees to indemnify, defend with counsel approved by DISTRICT, and hold DISTRICT harm less
from any and all claims, losses, or liabilities, arising from alleged injury or damage to persons or
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property arising out of any rerouting of any pedestrian/bikeway and/or trail caused by the
relocation of the RECREATION IMPROVEMENTS.
DISTRICT shall provide CITY with at least one working day notice of the need to temporarily
close a RECREATION IMPROVEMENT to allow DISTRICT to work on PREMISES unless
emergency conditions require immediate action by DISTRICT in which case CITY shall be
notified within a reasonable period of time.
4.3. NO RELOCATION OBLIGATION
CITY agrees that DISTRICT shall not under any circumstance be obligated to provide or locate
for CITY a replacement site for CITY's RECREATION IMPROVEMENT or operations in the event
this agreement is terminated or PREMISES is reduced or otherwise modified as discussed in this
agreement.
4.4. EMERGENCY RESTRICTIONS ON USE
CITY agrees that DIRECTOR may temporarily suspend public use of PREMISES if DIRECTOR
determines, in DIRECTOR's sole and absolute discretion that emergency conditions exist such
that use of PREMISES by the general public present a risk to the general public's health, safety
or welfare. DISTRICT shall notify CITY as soon as practicable of the emergency.
ARTICLE 5
PROHIBITED USES
5.1. MOTORIZED VEHICLES
CITY shall not allow any non-DISTRICT or non-CITY motorized vehicles, except private
maintenance vehicles specifically authorized under contract with CITY, to operate within the
PREMISES.
5.2. HAZARDOUS MATERIALS
CITY shall not cause or permit any "HAZARDOUS MATERIAL" as hereinafter defined, to be
brought upon, kept, or used in or about the PREMISES. CITY shall promptly take all action, at its
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sole cost and expense, as is necessary to clean, remove and restore the PREMISES to its
condition prior to the introduction of such HAZARDOUS MATERIAL by CITY, provided CITY shall
first have obtained DIRECTOR'S written approval and the approval of any necessary
governmental entities or agencies for any such remedial action.
As used herein, the term "HAZARDOUS MATERIAL" means any hazardous or toxic substance,
material or waste which is or shall become regulated by any governmental entity or agency,
including, without limitation, County of Orange, hereinafter referred to as "COUNTY ", acting in its
governmental capacity, the State of California or the United States government.
ARTICLE 6
TERM OF THE AGREEMENT
6.1. INITIAL TERM
This AGREEMENT shall commence on the date the AGREEMENT is approved by the
DISTRICT's Board of Supervisors and shall continue for ten (10) years unless terminated in
accordance with the provisions of Article 7 of this AGREEMENT.
6.2. RENEWAL
At the end of the Initial Term, this AGREEMENT will automatically renew for an additional one
year term upon the same covenants, terms and conditions unless either PARTY notifies the other
in writing of its intention to terminate this AGREEMENT at least sixty (60) days prior to the
expiration of the Initial Term. If sixty (60) days prior to the end of the one-year extended term,
neither PARTY has given the other notification of its intention to terminate, this AGREEMENT
shall continue in full force and effect upon the same covenants, terms and conditions for a further
term of one (1) year, and for annual terms thereafter until terminated by either PARTY by giving
the other PARTY written notice of its intention to so terminate at least sixty (60) days prior to the
end of any such annual term. However, in no event shall this AGREEMENT, including all
extensions and renewals, continue in effect for a period exceeding fifty (50) years.
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ARTICLE 7
TERMINATION
7.1. TERMINATION BY DISTRICT
CITY acknowledges that the primary purpose of the PREMISES is for flood control purposes.
CITY agrees that DISTRICT may terminate this AGREEMENT without liability if DISTRICT
determines in its sole and absolute discretion that PREMISES are needed to reconstruct, modify,
repair, expand, improve or enlarge DISTRICT's facilities and the RECREATION
IMPROVEMENTS cannot be relocated so as not to interfere with DISTRICT's reconstructed,
modified, repaired, expanded, improved or enlarged facilities. If RECREATION IMPROVEMENTS
can be relocated without interfering with DISTRICT's reconstructed, modified, repaired,
expanded, improved or enlarged facilities, CITY may relocate the RECREATION
IMPROVEMENTS to a location approved in advance in writing by DISTRICT within ninety (90)
days of being notified by DISTRICT. CITY shall be solely responsible for all costs and expenses
related to or arising from relocating the RECREATION IMPROVEMENTS, including but not
limited to, the rerouting of any pedestrian/bikeway and/or trail caused by the relocation of the
RECREATION IMPROVEMENTS. DISTRICT shall notify CITY of its intention to terminate the
AGREEMENT pursuant to this section by giving CITY ninety (90) days written notice.
7.2. TERMINATION BY CITY
CITY may terminate this AGREEMENT by giving DISTRICT ninety (90) days written notice. In
the event of such termination by CITY, CITY shall remove any improvements that it has placed on
the PREMISES if requested by DISTRICT and restore the PREMISES to the condition that
existed prior to this AGREEMENT. This obligation to restore the PREMISES shall survive the
termination of this AGREEMENT.
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7.3. TERMINATION DUE TO BREACH OF THE AGREEMENT
If CITY is in material breach of the AGREEMENT, and fails to diligently cure said breach within a
reasonable period of time as determined by DIRECTOR in his sole and absolute discretion,
DISTRICT may terminate the AGREEMENT.
7.4. NOTICE OF TERMINATION
All notices of termination shall be made in writing in accordance with the requirements of Article
11 of this AGREEMENT.
ARTICLE 8
RECREATION IMPROVEMENTS
8.1. AUTHORIZED IMPROVEMENTS
CITY may construct new or modify existing RECREATION IMPROVEMENTS as described
below, but not be limited to the following depending on proposed items in future County Property
Permits, when approved in writing by DISTRICT:
(a) Pathways constructed of decomposed granite, asphalt and/or concrete;
(b) Fencing that may consist of one or more of the following: wrought iron; powder coated
metal; chain link; metal safety railing;
(c) Signage for the pedestrian/bikeway routes and RECREATION IMPROVEMENTS;
(d) Landscaping;
(e) An irrigation system for the landscaping;
(f) Site amenities such as benches, trash receptacles and bike racks.
8.2. DISTRICT REVIEW AND APPROVAL OF RECREATION IMPROVEMENTS
Prior to the construction of any RECREATION IMPROVEMENTS on PREMISES, CITY shall
submit the plans and specifications for RECREATION IMPROVEMENTS to DIRECTOR for his
review and approval. RECREATION IMPROVEMENTS shall be designed and constructed: (1) so
as to assure that they do not interfere with the flood control purposes of DISTRICT facilities; (2)
so as not to interfere with or increase the cost to DISTRICT for the maintenance or operation of
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DISTRICT's facilities; (3) where the design shall be based on established criteria and standards
and all other applicable rules and regulations governing the design and construction of this type
of bike trails. Approval of the plans and specifications of RECREATION IMPROVEMENTS shall
be within DIRECTOR's sole and absolute discretion. CITY acknowledges, however, that the
design of RECREATION IMPROVEMENTS was/will not be prepared by DISTRICT and that
DISTRICT's approval of the plans and specifications shall not be deemed the approval of
RECREATION IMPROVEMENTS safety, suitability for the bike trail purpose or any other
purpose, or compliance with the engineering requirements of any governmental agency or
regulation. Consequently, CITY agrees that CITY is solely and absolutely responsible for design,
construction and operation of RECREATION IMPROVEMENTS.
Said plans and specifications shall be submitted by CITY for DISTRICT's review via an
encroachment permit application through OC Public Works' County Property Permits section and
shall be subject to applicable permit and inspection fees.
8.3. OTHER APPROVALS FOR RECREATION IMPROVEMENTS
CITY shall be responsible at its sole cost and expense to secure and comply with any other
approvals required to construct, operate and/or maintain its RECREATION IMPROVEMENTS.
DISTRICT is not responsible for obtaining any such approvals nor shall DISTRICT be named as
co-applicant in any regulatory agreement or permit applications.
CITY and DISTRICT mutually agree that DISTRICT, as the property owner/easement holder,
authorizes CITY to serve as the Legally Responsible Person (LRP) defined by the Construction
General Permit (CGP), Order No. 2010-0014-DWQ for CITY's RECREATION IMPROVEMENTS
on PREMISES. CITY shall be responsible, at its sole cost and expense, to comply with all
requirements by the State Water Resources Control Board.
CITY shall be responsible to satisfy all the requirements of any such agreements and/or permits
and satisfy any conditions imposed by any regulatory agency for the issuance of any such
approvals. CITY shall not agree to any conditions that impose any obligations on DISTRICT.
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If any regulatory agency requires that any property is set aside as mitigation for CITY's
RECREATION IMPROVEMENTS, that mitigation shall not be on PREMISES nor shall DISTRICT
have any obligation to monitor or maintain that mitigation or contribute any costs therefore.
CITY shall provide DISTRICT and OC Public Works' Permit Services/Regulatory Permits with
copies of all regulatory permits and/or agreements and conditions for its review and written
approval prior to CITY's agreeing to any such terms and conditions. Copies of any and all current
permits issued shall be available for inspection by DISTRICT's personnel.
CITY shall be responsible for obtaining permit from others for connecting its irrigation system to
their water supply system. Any water supply lines provided by the CITY for irrigation of CITY's
landscape or any other utilities provided for CITY's RECREATION IMPROVEMENTS are at
CITY's cost. In any case when this agreement is terminated, CITY shall remove its utility lines
installed pursuant to this Agreement at CITY's cost. In the event that CITY'S water supply lines
cause any damage to DISTRICT's facilities, CITY shall repair, replace, or restore DISTRICT's
improvements at CITY's expense to the satisfaction of the DIRECTOR and hold DISTRICT and
COUNTY harmless as specified in Article 9.
8.4. CONSTRUCTION OF RECREATION IMPROVEMENTS
CITY shall notify DIRECTOR two (2) weeks prior to beginning construction of its RECREATION
IMPROVEMENTS on PREMISES and shall coordinate the work with DISTRICT's inspector
during the progress of construction of RECREATION IMPROVEMENTS per individual
encroachment permits. Any Contractor hired by CITY to construct RECREATION
IMPROVEMENTS on PREMISES shall be required to:
(a) Maintain insurance that complies with the insurance requirements specified in Exhibit E;
(b) Indemnify, defend with counsel approved in writing by DISTRICT, and hold harmless
DISTRICT, the COUNTY, their elected and appointed officials, officers, employees,
agents and contractors (hereinafter "DISTRICT/COUNTY INDEMNITEES") harmless
from any and all claims, losses, or liability, arising from injury or damage to persons or
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property related to Contractor's, its subcontractor's, their employee, agents or invitees
activities on, within, upon, under or over PREMISES unless such injury or damage is
caused by the sole negligence or willful misconduct of DISTRICT, COUNTY or the
DISTRICT/COUNTY INDEMNITEES;
(c) Provide DIRECTOR with a copy of its Notice of Intent to comply with the National
Pollutant Discharge Elimination System (hereinafter referred to as "NPDES") permit
covering construction activities and to fully comply with the requirements of that NPDES
permit. Contractor shall also be required to comply with the requirements of the Drainage
Area Management Plan, Local Implementation Plan as specified in Article 13
(Stormwater Regulations) of this AGREEMENT for activities to be conducted by the
contractor and its subcontractors on PREMISES;
(d) No construction materials are to be stored in such a way as to impede and/or interfere
with any bikeway use, channel inspection or maintenance operations.
Any DISTRICT improvements disturbed, damaged, vandalized or removed as a result of CITY's
construction activities within, upon, under or over PREMISES shall be repaired, restored or
replaced at CITY's expense in conformance with OC Public Works Standard Plans and to the
satisfaction of the DIRECTOR within sixty (60) calendar days of the issuance of written notice by
DIRECTOR. If CITY and/or its contractor fail to repair, restore or replace DISTRICT's
improvements within sixty (60) calendar days, DIRECTOR may, in his sole and absolute
discretion, cause the repair, restoration or replacement of DISTRICT's improvements to be
completed by DISTRICT personnel or DISTRICT contractors and CITY shall be solely
responsible for these costs and expenses. CITY agrees that in an emergency situation which
threatens the public's health, safety or welfare as determined by DIRECTOR in his sole and
absolute discretion, DIRECTOR shall be permitted to cause the repair, replacement or restoration
of DISTRICT's improvements without prior notice to CITY and CITY shall be solely responsible
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for the cost of such repair, restoration or replacement in accordance with the procedures
described above.
8.5. MAINTENANCE OF RECREATION IMPROVEMENTS
CITY shall be solely responsible at its sole cost and expense for the operation, maintenance,
repair, relocation, and/or replacement of RECREATION IMPROVEMENTS on PREMISES.
8.6. DISTRICT'S RIGHTS TO REMOVE/RELOCATE RECREATION IMPROVEMENTS
Parties acknowledge that DISTRICT's 7-Year Plan, which indicates DISTRICT facilities to be
improved within seven (7) years, may require removal or relocation of RECREATION
IMPROVEMENTS. DISTRICT shall notify CITY if DISTRICT's plans will impact RECREATION
IMPROVEMENTS. If DIRECTOR in his sole and absolute discretion determines use of CITY
RECREATION IMPROVEMENTS must be prevented for any reason, or must be modified,
relocated or removed in whole or in part, DISTRICT shall notify CITY in writing and CITY shall
modify, relocate or remove all or a portion of RECREATION IMPROVEMENTS as directed by
DIRECTOR at CITY's sole cost and expense within ninety days (90) calendar days of the date of
DIRECTOR's written notification to CITY or within a longer time period if agreed to by
DIRECTOR. CITY agrees that in an emergency situation which threatens the public's health,
safety or welfare as determined by DIRECTOR in his sole and absolute discretion, DIRECTOR
shall be permitted to prevent use of, or cause modification, relocation or removal of all or a
portion of RECREATION IMPROVEMENTS without prior notice to CITY. DISTRICT will endeavor
to notify CITY of its intent to remove CITY RECREATION IMPROVEMENTS as soon as
practicable but in no case shall such notice be provided greater than thirty days (30) after
DISTRICT modifies relocates or removes such RECREATION IMPROVEMENTS. DISTRICT
shall close RECREATION IMPROVEMENTS to the public after any modification, relocation or
removal of RECREATION IMPROVEMENTS until CITY and DISTRICT agree to re-open it. CITY
agrees that if any of RECREATION IMPROVEMENTS are disturbed, damaged or removed by
DISTRICT for proper DISTRICT purpose as described in Paragraph 4.2, above, CITY shall
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determine whether it is in CITY's best interest to replace, repair, restore, or remove such
RECREATION IMPROVEMENTS. CITY shall be responsible for replacing, repairing, restoring or
removing RECREATION IMPROVEMENTS to the satisfaction of DIRECTOR solely at CITY's
cost and expense.
8.7. FENCING AND SITE SECURITY
Security of the RECREATION IMPROVEMENTS shall be CITY's responsibility and at CITY's
expense.
CITY shall develop a plan to assure that DISTRICT's adjoining flood control facility is not
accessible to the public using the RECREATION IMPROVEMENTS on PREMISES but is
accessible to DISTRICT personnel from PREMISES (hereinafter referred to as
"SECURITY/ACCESS PLAN"). This SECURITY/ACCESS PLAN shall show the placement of all
fencing securing the PREMISES, including any proposed fencing located along the property line.
This SECURITY/ACCESS PLAN shall also include the placement of any proposed gates as well
as information concerning whether the proposed gates will be left open and if so when they will
be open. This SECURITY/ACCESS PLAN shall be developed during the encroachment permit
process for each of the RECREATION IMPROVEMENTS, reviewed, and approved prior to
issuance of permit. For any masonry/block wall that is located all or in part on private property
outside of the PREMISES, CITY shall be solely responsible for obtaining the necessary right-of-
way and for maintaining the portion of the masonry/block wall fencing the PREMISES at its sole
cost and expense during the term of this AGREEMENT. If the private property owner refuses to
allow CITY on its private property to perform any necessary repairs on the masonry/block wall,
and the masonry/block wall presents a hazard to persons using the RECREATION
IMPROVEMENTS, CITY shall at its sole cost and expense install other fencing on PREMISES to
secure PREMISES. This replacement fencing shall meet the DIRECTOR's written approval and
be designed and constructed at no cost to DISTRICT.
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If CITY subsequently removes the masonry/block wall for any reason, CITY shall construct a
replacement wall or fence meeting DIRECTOR's written approval at no cost to DISTRICT.
8.8. GRAFFITI REMOVAL
CITY agrees to be responsible at its sole cost and expense for keeping all RECREATION
IMPROVEMENTS and DISTRICT facilities which are accessible from said RECREATION
IMPROVEMENTS free of graffiti. CITY shall regularly inspect RECREATION IMPROVEMENTS
for graffiti and shall remove all graffiti from the RECREATION IMPROVEMENTS and DISTRICT
facilities within two (2) working days of inspection or notification of the graffiti. CITY shall identify a
contact person at the CITY responsible for graffiti removal and shall keep OC Public
Works'/Operations & Maintenance informed of CITY's contact person and access requirements
for this operation by calling 714-955-0213. CITY shall perform any graffiti removal work in
compliance with the requirements of Article 13 of this AGREEMENT by implementing appropriate
Best Management Practices (hereinafter referred to as "BMPs") to prevent all materials, including
paint or chemicals used in graffiti removal and any debris associated with the proposed project,
from entering into the channel and/or DISTRICT maintained areas.
8.9. LANDSCAPING
CITY shall prepare a landscaping plan for the PREMISES affected by the installation of any
RECREATION IMPROVEMENT. This plan shall be reviewed and approved in writing by
DIRECTOR before implementation. The CITY shall install and maintain the approved landscaping
at its sole cost and expense.
ARTICLE 9
INDEMNITY AND INSURANCE PROVISIONS
9.1. CITY'S INDEMNITY OBLIGATIONS
CITY agrees that it shall indemnify, defend with counsel approved in writing by DISTRICT,
release and hold DISTRICT, COUNTY, and/or DISTRICT/COUNTY INDEMNITEES harmless
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from any and all claims, losses, or liability, arising from alleged injury or damage to persons or
property arising out of: (a) breach of the terms and conditions of this AGREEMENT by CITY, (b)
the willful misconduct or negligent acts or omissions of CITY in connection with this
AGREEMENT, (c) the material or other items used or employed in performing construction work,
(d) injury to or death of any person or persons (either workman, employees of CITY or its
contractors, subcontractors or the public) or damage to adjacent or other property caused by the
performance of construction work being performed to construct RECREATION IMPROVEMENTS
on PREMISES, or (e) arising from use by any person or persons of RECREATION
IMPROVEMENTS on PREMISES, or (f) CITY's operation and maintenance activities on
PREMISES, or (g) the design of RECREATION IMPROVEMENTS on PREMISES. Nothing
contained in this section shall operate to relieve DISTRICT and/or the DISTRICT/COUNTY
INDEMNITEES from any loss, injury, liability, damages, claims, costs or expenses to the extent
determined by a court of competent jurisdiction to have been proximately caused by the willful
misconduct or negligent acts or omissions of DISTRICT and/or the DISTRICT/COUNTY
INDEMNITEES or any of them.
The indemnity obligations created by this section as well as any other indemnity obligations
created by this AGREEMENT shall survive the termination of this AGREEMENT, to the extent
that a claim is based on an event which occurred prior to termination.
9.2. INSURANCE
During the term of this AGREEMENT CITY shall maintain insurance or self-insurance and cause
its contractors to maintain insurance in accordance with the insurance requirements set forth in
Exhibit E.
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ARTICLE 10
ASSIGNMENT / THIRD PARTY BENEFICIARY PROVISIONS
10.1. ASSIGNMENT BY CITY PROHIBITED
CITY acknowledges that its rights and obligations pursuant to this AGREEMENT are non-
transferable without the prior written consent of DISTRICT. Any attempt by CITY to transfer all or
part of its rights or obligations under this AGREEMENT to another party shall be null and void. If
CITY wishes to transfer RECREATION IMPROVEMENTS and/or any of its rights or obligation
under this AGREEMENT to another party, DISTRICT may require that the proposed successor
enter into a separate agreement with DISTRICT with additional terms and conditions.
DISTRICT may, but is under no obligation to, record this AGREEMENT to provide notice to
proposed assigns or successors that this AGREEMENT is non-transferable without the express
written consent of the DISTRICT's Board of Supervisors.
10.2. NO THIRD PARTY BENEFICIARY
This AGREEMENT is not intended to give or confer any benefits, rights, privileges, claims,
actions, or remedies to any person, group or entity, including but not limited to the State and/or
members of the general public authorized to use the PREMISES, as a third party beneficiary,
decree, or otherwise. The CITY and the DISTRICT are and will remain the only entities with
standing to enforce any of the covenants, terms and conditions of this AGREEMENT.
ARTICLE 11
NOTICE
11.1. NOTICES
All notices or other communications required or permitted under this AGREEMENT shall be
provided to the following official at the specified address.
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Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
City of Santa Ana
Parks, Recreation and Community Services Agency
ATTN: Executive Director, Parks, Recreation and Community Service Agency
26 Civic Center Plaza
Santa Ana, CA 92702
(714) 571-4204(phone); (714) 571-4221 (fax)
ORANGE COUNTY FLOOD CONTROL DISTRICT
Director of Orange County Public Works
P.O. Box 4048
Santa Ana, CA 92702-4048
(City of Santa Ana- RECREATION IMPROVEMENTS)
11.2. FORM AND TIMING OF NOTICE
All notices shall be in writing, and shall be personally delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, or be sent by overnight courier and shall be
deemed received upon the earlier of:
(a) If personally delivered, the date of delivery to the address of the person to receive such
notice;
(b) If mailed, three (3) business days after the date of posting by the United States Post
Office; or
(c) If sent by overnight courier, when delivered.
11.3. CHANGES OF PERSON TO RECEIVE NOTICE
Either PARTY may change the person or official to receive notice by sending a written notice of
that change to the other PARTY.
ARTICLE 12
ACCESS To DISTRICT'S CHANNEL
12.1. CITY LOCKS
CITY shall be allowed to install a CITY lock on DISTRICT's gates if required for access to the
RECREATION IMPROVEMENTS, provided CITY ensures that DISTRICT retains its ability to
access its facilities.
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Bikeways and Trails in the City of Santa Ana
12.2. DISTRICT ACCESS GATES
DISTRICT access gates not used by the public are to be immediately locked upon entering or
exiting DISTRICT channel right of way.
12.3. USE OF DISTRICT ROADS
CITY acknowledges that the use of earthen DISTRICT access roads is prohibited during
inclement weather or when DISTRICT's earthen access roads are wet. When DISTRICT's
earthen access roads are wet, CITY's access will be limited to pedestrian access only and CITY
shall allow such access only if CITY determines the conditions are safe and do not warrant the
CITY's closure of such access by the public. Nothing in this paragraph shall diminish
DIRECTOR's authority to order closure of the RECREATION IMPROVEMENTS when deemed
necessary by DIRECTOR.
ARTICLE 13
STORMWATER
13.1. COMPLIANCE WITH STORMWATER REGULATIONS
CITY and all CITY's, agents, employees and contractors shall maintain the PREMISES so as to
assure that pollutants do not enter the DISTRICT's facilities from the PREMISES.
The Santa Ana Regional Water Quality Control Board (hereinafter referred to as "RWQCB") has
issued permits which regulate stormwater and non-stormwater discharges (Stormwater Perm its)
resulting from areas owned and operated by the DISTRICT including activities conducted under
this AGREEMENT. The COUNTY and cities within Orange County have enacted water quality
ordinances that prohibit activities that result in pollutants being discharged into the Stormwater
drainage system, including DISTRICT facilities.
To ensure compliance with Stormwater Permits and water quality ordinances, DISTRICT and
COUNTY have developed a Drainage Area Management Plan including a Local Implementation
Plan (hereinafter referred to as "DAMP/LIP") that contains Model Maintenance Procedures vvi th
BMPs that parties using DISTRICT owned properties must adhere to. These Model Maintenance
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Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
Procedures contain pollution prevention and source control techniques to minimize the impact of
those activities upon dry-weather urban runoff, stormwater runoff, and receiving water quality.
CITY shall review and assure that its contractors working on PREMISES review the applicable
Model Maintenance Procedures contained in the DAMP/LIP. Activities performed on the
PREMISES under this AGREEMENT shall conform to the requirements of the Stormwater
Permits, the DAMP/LIP, and the Model Maintenance Procedures, as they exist at the time this
AGREEMENT commences and as Stormwater Permits, the DAMP/LIP, and/or the Model
Maintenance Procedures are modified throughout the term of this AGREEMENT. The BMP's
applicable to uses authorized under this AGREEMENT must be performed as described within all
applicable Model Maintenance Procedures. CITY shall fully understand the Model Maintenance
Procedures applicable to operations conducted on the PREMISES prior to conducting them.
CITY and/or its contractors may propose alternative BMPs that meet or exceed the pollution
prevention performance of the Model Maintenance Procedures. Any such alternative BMPs shall
be submitted to DIRECTOR for his review and written approval prior to implementation.
CITY acknowledges it may be required in the future by a regulatory agency such as the RWQCB
to implement a self-evaluation program to demonstrate compliance with the requirements of this
article.
ARTICLE 14
EXHIBITS
14.1. EXHIBITS
This AGREEMENT incorporates by this reference, the following exhibits, which are attached
hereto and incorporated herein:
Exhibit A -- Santa Ana River Vision Plan
Exhibit B - Existing Bikeway along Santa Ana-Delhi Channel
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Agreement No. 012-015
Bikeways and Trails in the City of Santa Ana
Exhibit C - Edna Park and Seventeen Street Triangle
Exhibit D - Description of PREMISES
Exhibit E -- DISTRICT Insurance Requirements
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1. ENTIRE AGREEMENT
This document sets forth the entire AGREEMENT among DISTRICT and CITY pertaining to this
matter, and may be modified only by further written amendment between the PARTIES hereto.
15.2. AMENDMENTS
It is mutually understood and agreed that no addition to, alteration of, or variation of the terms of
this AGREEMENT, nor any oral understanding or agreement not incorporated herein, shall be
valid unless made in writing and signed and approved by all necessary PARTIES.
15.3. COMPLIANCE WITH APPLICABLE LAW
Each PARTY and their contractors shall at all times and in all respects comply with all applicable
federal, state and local laws, ordinances regulations and permits.
15.4. CALENDAR DAY(S)
Any reference to the word "day" or "days" herein shall mean calendar day or calendar days,
respectively, unless otherwise expressly provided.
15.5. WAIVER OF RIGHTS
The failure of DISTRICT to insist upon strict performance of any of the terms, covenants or
conditions of this AGREEMENT shall not be deemed a waiver of any right or remedy that
DISTRICT may have, and shall not be deemed a waiver of the right to require strict
performance of all the terms, covenants and conditions of this AGREEMENT thereafter, nor a
- Page 20 of 23 -
Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
waiver of any remedy for the subsequent breach or default of any term, covenant or condition
of this AGREEMENT.
15.6. SEVERABILITY
If any part of this AGREEMENT is held, determined or adjudicated to be illegal, void or
unenforceable by a court of competent jurisdiction, the remainder of this AGREEMENT shall be
given effect to the fullest extent reasonably possible.
15.7. AUTHORITY
The PARTIES to this AGREEMENT represent and warrant that this AGREEMENT has been duly
authorized and executed and constitutes the legally binding obligation of their respective
organization or entity, enforceable in accordance with its terms.
15.8. CONSTRUCTION
The PARTIES acknowledge that the PARTIES and their counsel have reviewed and revised this
AGREEMENT and that the normal rule of construction - to the effect that any ambiguities are to
be resolved against the drafting PARTY - shall not be employed in the interpretation of this
AGREEMENT or any exhibits or amendments hereto.
15.9. EXECUTION IN COUNTERPARTS
This AGREEMENT may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of such counterparts shall constitute one agreement. To
facilitate execution of this AGREEMENT, the PARTIES may execute and exchange by telephone
facsimile counterparts of the signature pages.
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Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly
authorized representatives as of the date set forth above.
Date:
City of Santa Ana, California,
a charter city
BY:
Paul M. Walters
City Manager
Date:
Attest:
BY:
Maria D Huizar
Clerk of the Council
APPROVED AS TO FORM:
City of Santa Ana
BY:
Lau Sheedy
Assistant City Attorney
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Agreement No. D12-015
Bikeways and Trails in the City of Santa Ana
Orange County Flood Control District,
a body corporate and politic
Date: By
Chairman of the Board of Supervisors
Orange County, CA
Signed and certified that a copy of this document has
been delivered to the Chair of the Board per G.C. Sec
25103, Reso 79-1535
Attest:
Date:
Susan Novak
Clerk of the Board of Supervisors
County of Orange, California
APPROVED AS TO FORM:
Office of the County Counsel
Orange C04nty,, California
Date:,
Pi .
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SANTA ANA RIVER VISION PLAN
PROPOSED SITES
PUBLIC YOHKS IICENCY - - - - -
Forrest Paul Trailhead
Edna Park Trailside Rest Area
17th Street Site
Fairview Triangle Site
Pacific Electric Site
Spurgeon Park Site
McFadden Triangle Site
Edinger Equestrian Trailhead
Centennial Park Side
Golden Loop Trailhead
003 - GREENVILLE-BANNING CHANNEL
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17th Street TrIwVle Lease Agreements .
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D03 - GREENVILLE-BANNING CHANNEL
E01 - SANTA ANA RIVER
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F01 - SANTA ANA-DELHI CHANNEL
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EXHIBIT E
INSURANCE REQUIREMENTS
During the term of this AGREEMENT, CITY shall maintain commercial insurance or
self-insurance to cover its general liability, automobile liability and workers'
compensation exposures and indemnity obligation associated with this AGREEMENT.
Upon request CITY shall provide DISTRICT with proof of insurance, or a letter
evidencing CITY's self-insurance program acceptable to DISTRICT, within seven (7)
days of the effective date of this AGREEMENT.
CITY shall cause its contractors performing work within the PREMISES, at contractors'
expense, to maintain and provide proof of insurance to CITY as set forth below:
Coverage/Limits
Coverage Minimum Limits
Commercial General Liability with
$1,000,000 limit per occurrence
products and completed operations and $2,000,000 aggregate
contractual liability
Automobile Liability including coverage
$1,000,000 limit per occurrence
for owned, non-owned and hired vehicles
Workers' Compensation Statutory
Employers' Liability Insurance $1,000,000 per occurrence
Professional Liability Insurance* $1,000,000 per claims made or per
occurrence
*If contractor's Professional Liability policy is a "claims made" policy, contractor
shall agree to maintain professional liability coverage for two years following the
completion of the contract.
Required Coverage Forms
The Commercial General Liability coverage shall be written on Insurance Services Office
(ISO) form CG 00 01, or a substitute form providing liability coverage at least as broad.
The Business Auto Liability coverage shall be written on ISO form CA 00 01, CA 00 05,
CA 00 12, CA 00 20, or a substitute form providing liability coverage as broad.
Qualified Insurer
The policy or policies of insurance must be issued by an insurer licensed to do business in
the state of California (California Admitted Carrier) or have a minimum rating of A-
(Secure A.M. Best's rating) and VIII (Financial Size Category) as determined by the
Page 1 of 2
EXHIBIT E
25E-20
most current edition of the Best's Key RatinLF Guide/Property-Casualty/United States
or ambest.com
If the insurance carrier is not an admitted carrier in the state of California and does not
have an A.M. Best rating of A-/VIII, the CEO/Risk Management retains the right to
approve or reject a carrier after a review of the company's performance and financial
ratings.
Required Endorsements
The Commercial General Liability policy shall contain the following endorsements,
which shall accompany the Certificate of Insurance:
1) An Additional Insured endorsement using ISO form CG 2010 or CG
2033 or a form at least as broad naming the County of Orange and
Orange County Flood Control District, its elected and appointed
officials, officers, employees, agents as Additional Insureds.
2) A primary non-contributing endorsement evidencing that the
contractor's insurance is primary and any insurance maintained by the
County of Orange, Orange County Flood Control District shall be excess
and non-contributing.
3) A Products and Completed Operations endorsement using ISO Form
CG2037 (ed. 10/01) or a form at least as broad, or an acceptable
alternative is the ISO from CG2010 (ed. 11/85).
All insurance policies required by this contract shall waive all rights of subrogation
against the County of Orange and members of the Board of Supervisors, its elected and
appointed officials, officers, agents and employees when acting within the scope of their
appointment or employment.
The Workers' Compensation policy shall contain a waiver of subrogation endorsement
waiving all rights of subrogation against the County of Orange, the Orange County Flood
Control District, and members of their Board of Supervisors, their elected and appointed
officials, officers, employees and agents.
The procuring of such required policy or policies of insurance shall not be construed
to limit CITY and/or its'Contractor's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Contract, nor in any way to
reduce the policy coverage and limits available from the insurer.
Page 2 of 2
EXHIBIT E
25E-21
25E-22