HomeMy WebLinkAbout11 APPROVE AGREEMENT NO. D12-053 WITH OC FLOOD CONTROL DIST. (BARRANCA CHANNEL)� Agenda Item 11
AGENDA REPORT Reviewed.
City Manager
.
Finance Director N A
MEETING DATE: JUNE 3, 2014
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS /CITY ENGINEER
SUBJECT: APPROVE COOPERATIVE AGREEMENT NO. D12 -053 WITH THE ORANGE
COUNTY FLOOD CONTROL DISTRICT FOR THE ESTABLISHMENT OF
TERMS AND CONDITIONS FOR THE RECONSTRUCTION, OPERATION, AND
MAINTENANCE OF THE BARRANCA CHANNEL FLOOD CONTROL
IMPROVEMENTS
SUMMARY
Cooperative Agreement D02 -119 dated March 11, 2003 as amended established terms and
conditions under which certain Barranca Channel Flood Control Improvements would be
scheduled, engineered, financed, constructed, operated, and maintained. Cooperative Agreement
D12 -053 satisfies Section 5.2.2 obligations under that previously approved agreement and
establishes the terms upon which channel improvements would be accepted by the Orange County
Flood Control District (OCFCD).
RECOMMENDATION
It is recommended that the City Council approve Cooperative Agreement No. D12 -053 with the
Orange County Flood Control District and authorize the City Manager and City Clerk to execute the
agreement and related documents on behalf of the City.
FISCAL IMPACT
None at this time. The City's construction of a box culvert within the Barranca Channel Segment
between Aston Street and Tustin Ranch Road in place of the open channel was previously
approved and currently underway. Vestar Development Company, as an agent of the City, will
construct portions of the Flood Control Improvements between the Barranca Parkway Crossing
and Von Karman Avenue in the City of Irvine per the terms and conditions of the Tustin Legacy
Disposition and Development Agreement (Retail Development) dated July 20, 2004 as amended.
Maintenance responsibilities will be funded through the various community facilities districts within
Tustin Legacy.
CORRELATION TO THE STRATEGIC PLAN
This agreement contributes to the fulfillment of three goals in the City's Strategic Plan. First is
contribution to the fulfillment of the City's Strategic Plan Goal A: Economic and Neighborhood
Development; specifically the project implementation of Strategy #1 which, among other items, is to
develop critical phases of Tustin Legacy. Secondly is implementation of Goal B, Strategy #3 to
ensure public safety and protection of assets through continuous maintenance and improvement of
public facilities. Lastly the project also addresses Goal D, Strategy #2 by working collaboratively
with agencies to address issues of mutual interest and concern.
Approve Cooperative Agreement No. D12 -053 with CCFCD
June 3, 2014
Page 2
DISCUSSION AND BACKGROUND
Cooperative Agreement No. D12 -053 and associated documents have been prepared to satisfy the
requirements as set forth in Section 5.2.2 of Cooperative Agreement D02 -119, namely to design,
and after receiving OCFCD written approval, construct ultimate Barranca Channel Flood Control
Improvements between Red Hill Avenue and Von Karman Avenue including the Barranca Parkway
Crossing. Also pursuant to Resolution No. 03 -230 of the Orange County Board of Supervisors and
according to the Runoff Management Plan prepared for the former Marine Corps Air Station, the
City agreed to construct a box culvert and accepted responsibility for the incremental additional
costs for repair or reconstruction of a covered channel. By this agreement, the parties will also
modify the easement area granted to OCFCD by the U.S. Government in that Grant of Easement
executed on October 21, 1970, permitting a portion of the easement area surface to be used by the
City for public roadway purposes, and memorialize the requirements of Resolution No. 03 -230.
The City Attorney has reviewed and approved Cooperative Agreement No. D12 -053 as to form.
Stack, P.E.
Public Works /City Engineer
Attachment 1:.. Cooperative Agreement No. D12 -053
S: \City Council Items\2014 Council Items \06 -03- 2014 \Barranca Channel Agreement with County\Approval of Coop Agmt #D12 -053 w
County.docx
BARRANCA CHANNEL AGREEMENT
This BARRANCA CHANNEL AGREEMENT, hereinafter referred to as
"AGREEMENT," for purposes of identification hereby numbered D12 -053,
and dated day of , 2014 is,
BY and BETWEEN
I Wb
The City of Tustin, a municipal
corporation, hereinafter referred to
as "CITY,"
Orange County Flood Control District,
a body corporate and politic,
hereinafter referred to as "DISTRICT,"
Which are sometimes individually
referred to as "PARTY," or
collectively referred to as "PARTIES."
RECITALS
WHEREAS,theCITY, DISTRICT, and the County of Orange entered
into that certain Cooperative Agreement D02 -119 dated March 11, 2003,
as amended ( "COOPERATIVE AGREEMENT ") wherein the CITY reconstructed a
segment of Barranca Channel at the Armstrong Avenue crossing and, in
Section 5.2.2, agreed to design and, after receiving DISTRICT'S
written approval, construct ultimate Barranca Channel flood control
improvements between Red Hill Avenue and the Barranca Parkway crossing
( "Channel Segment ") more specifically illustrated on Exhibit A
entitled "LOCATION MAP" attached hereto, and by this reference made a
part hereof.
1003261.1
WHEREAS, the PARTIES intend this Agreement to satisfy the
Barranca Channel Agreement No. D12 -053
CITY'S Cooperative Agreement Section 5.2.2 obligations and establish
the terms upon which channel improvements would be accepted by
DISTRICT. The Channel Segment improvements constructed under this
AGREEMENT, as well as those improvements constructed by the City of
Irvine and to be constructed by Vestar Development Co. referenced
below, shall hereinafter collectively be referred to as "Flood Control
Improvements "; and
WHEREAS, City of Irvine has constructed portions of the
Flood Control Improvements between Aston Street and Red Hill Avenue
from STA. 123 +50 to STA. 129 +05.84 and from STA. 4 +70.24 to STA.
7 +25.00 under DISTRICT's County Property Permit ( "CPP ") number 2009-
00201, which improvements are not yet accepted by DISTRICT; and
WHEREAS, Vestar Development Co., as an agent of CITY,
pursuant to Section 5.1.1 of the COOPERATIVE AGREEMENT, has been
permitted by DISTRICT to construct portions of the Flood Control
Improvements between Barranca Parkway crossing and Von Karman Avenue
from STA. 87 +14.33 to STA. 98 +05.37 in compliance with the terms and
conditions specified in CPP number 2004 - 01451, which improvements are
not yet completed or accepted by DISTRICT; and
WHEREAS, CITY desires to construct a box culvert within
the Channel Segment rather than an open channel; and
WHEREAS, pursuant to Resolution No. 03 -230 of the Orange
County Board of Supervisors and according to the Runoff Management
Plan, prepared for.the former Marine Corps Air Station within the CITY
( "MCAS- TUSTIN "), and the Reuse Plan /Specific Plan prepared by RBF
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Barranca Channel Agreement No. D12 -053
Consulting dated December 2004, CITY agreed to construct a drainage
systems tributary to covered Barranca Channel to accommodate 100 -year
High Confidence Design Criteria and accepted responsibility for the
incremental additional costs for repair or reconstruction of a covered
channel as compared to an open channel and to comply with all other
requirements set forth in this Resolution as applicable to the Flood
Control Improvements; and
WHEREAS, the CITY, the current fee owner of the MCAS-
TUSTIN, and DISTRICT agree to execute and record an "Easement Deed
Amendment and Quitclaim Deed ", which is substantially in the same form
as Exhibit B ( "Amendment ")in accordance with the terms of this
AGREEMENT. By the Amendment, the Parties will (1) modify the easement
area granted to DISTRICT by the U.S Government in that Grant of
Easement executed on October 21, 1970 and recorded in the Official
Records of Orange County as Book 9924 and Page 289 on December 14,
1971 (a copy of which is attached hereto as Exhibit C) , (2) permit a
portion of the easement area surface to be used by CITY for public
roadway purposes under certain terms and conditions, and (3)
memorialize the requirements of Resolution No. 03 -230; and
WHEREAS, it is mutually agreed and in the public's
interest that DISTRICT and CITY share in the cost of the future repair
and reconstruction of proposed covered flood control channel to enable
use of the surface by CITY.
NOW, THEREFORE, IT IS AGREED by and between the PARTIES
hereto as follows:
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Barranca Channel Agreement No. D12 -053
The provisions, definitions, and statements of intention
set forth in the Recitals, above, are incorporated into this AGREEMENT
as though fully set forth below.
SECTION 1. PURPOSE
The purpose of this AGREEMENT is to establish the terms
and conditions related to the reconstruction of the
Channel Segment, operation and maintenance of the Flood
Control Improvements, as well as DISTRICT'S acceptance of
the Flood Control Improvements and the right -of -way upon
which the Channel Segment improvements are located.
SECTION 2. DESCRIPTION OF FLOOD CONTROL IMPROVEMENTS
The Flood Control Improvements include those Channel
Segment improvements to be constructed by the CITY in
accordance with this Agreement, located between Red Hill
Avenue and the Barranca Parkway crossing; as well as those
improvements constructed by the City of Irvine and
constructed or to be constructed by Vestar Development Co.
The Channel segment improvements will consist of
underground conduits, an inlet structure, an outlet
structure and related features. CITY intends to use the
surface of these Channel Segment improvements as a public
roadway and landscaped area.
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Barranca Channel Agreement No. D12 -053
SECTION 3. PROJECT COORDINATION
A. CITY'S Director of Public Works, or authorized
designee, hereinafter referred to as "Construction
Manager ", shall be CITY'S representative in all matters
pertaining to this AGREEMENT.
B. DISTRICT'S Director of the Orange County Public Works
(OC Public Works) , or an authorized designee,
hereinafter referred to as "Director ", shall be
DISTRICT'S representative in all matters pertaining to
this AGREEMENT.
SECTION 4. CITY'S RESPONSIBILITIES
A. CITY shall deliver a fully executed Amendment and
Access Easement (as defined below in Section 4.D) prior
to DISTRICT'S acceptance of the Flood Control
Improvements.
S. Prior to DISTRICT'S acceptance of Flood Control
Improvements, CITY shall ensure that all local public
and private drainage facilities that enter Barranca
Channel right -of -way, but which are not part of
DISTRICT'S responsibilities including but not limited
to storm drains, drainage inlets and other devices that
are identified on the construction plans for Flood
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Control Improvements are owned, operated and maintained
by CITY, or an appropriate entity, person, or
commercial association. CITY shall identify those third
parties responsible for the ongoing operation and
maintenance of these facilities, and any facility not
owned by the CITY. The CITY shall cause the other
entities to apply for a CPP, which will contain
reasonable conditions for the ongoing operation and
maintenance of said structures. DISTRICT will not
accept the Flood Control Improvements until all CPP's
are in place. Each individual entity including CITY
shall at no cost to DISTRICT, apply and receive a CPP
for construction, operation and maintenance of such
facilities from DISTRICT (which permit shall be issued
at no cost to CITY only).
C. CITY will be responsible for operation and maintenance
of the Barranca Channel Segment and the other segments
of the Flood Control Improvements until such time as
all portions of the Flood Control Improvements are
accepted by the DISTRICT, and the Amendment and Access
Easement are recorded.
D. Grant DISTRICT an access easement in substantially the
same form as Exhibit D ( "Access Easement ") over and
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Barranca Channel Agreement No. D12 -053
across the CITY owned and maintained Barranca Retarding
Basin, Facility F09B01, "C" Street, and access from
Armstrong Road for DISTRICT's Barranca Channel
operation and maintenance purposes.
E. CITY will prepare and obtain Director's approval of
legal descriptions for the Amendment and Access
Easement, which are to be conveyed to DISTRICT in
accordance with the terms of this AGREEMENT. If any
adjustments to the legal descriptions are needed after
the recordation, Director and Construction Manager may
approve such adjustments and execute any documents to
effectuate those adjustments, re- record the appropriate
deed with the revised legal description.
F. CITY will, at no cost to DISTRICT, submit to Director a
title report demonstrating condition of title for the
Amendment and Access Easement that will be conveyed to
DISTRICT for the Channel Segment of the Flood Control
Improvements. CITY shall remove all the title
exceptions not listed in Exhibit E attached hereto and
made a part hereof. The title report shall be updated
within 60 days of the conveyance of the Amendment
and /or Access Easement. CITY shall be obligated to
remove any new title exceptions contained in such
updated title report(s) that Director determines
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Barranca Channel Agreement No. D12 -053
adversely affects the ownership interest to be conveyed
in Amendment and /or Access Easement.
Upon recordation, CITY shall pay any premium and
associated costs for issuance of a CLTA Standard
Coverage Policy of Title Insurance to DISTRICT in the
amount of $120,000 (One Hundred Twenty Thousand
Dollars) for a title policy which covers both
conveyances to DISTRICT. The Title Policy shall show
the interest(s) conveyed to DISTRICT, subject only to
those title exceptions specified in Exhibit E and those
allowed by Director pursuant to this Section.
G. CITY shall cause its contractors to prepare a Soils
Management Plan that includes performing pre -
construction soils testing and an action plan to
address areas of contaminated soil encountered during
construction. The Soils Management Plan shall be
submitted through DISTRICT's CPP department for
Director's prior approval and shall be implemented
during any grading or subsurface work at the
construction site. The ground excavation or grading
activities should be observed by a monitor experienced
in recognizing hazardous materials or petroleum
hydrocarbons to be retained by CITY's contractors at no
cost to DISTRICT. If such hazardous materials or
petroleum hydrocarbon is discovered during grading and
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Barranca Channel Agreement No. D12 -053
excavation, CITY shall remediate the area and dispose
the material per the Soil Management Plan and obtain
Director's approval.
H. CITY shall, at no cost to DISTRICT, prepare and obtain
Director's approval of a Hazardous Materials Assessment
( "HMA ") of any new properties to be added to the
easement area prior to conveyance of the Amendment,
easements or any portion thereof to DISTRICT. CITY
shall remediate any condition revealed in the HMA or
discovered during construction that Director finds to
be reasonably unacceptable by Director, in accordance
with the terms of this AGREEMENT, before acceptance of
the Flood Control Improvements by DISTRICT.
I. CITY shall, upon completion of all segments of the Flood
Control Improvements and prior to acceptance by
DISTRICT, as required by Director, perform a final
inspection of the entire Flood Control Improvements,
correct any damage or distress found and remove any
debris or silt, entirely at CITY's expense to
Director's satisfaction.
SECTION 5. DISTICT'S RESPONSIBILITIES
A. DISTRICT shall accept and record in the Official
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Barranca Channel Agreement No. D12 -053
Records of Orange County, California, the Amendment and
Access Easement deeds which have been properly signed
and acknowledged by DISTRICT and CITY after Director
certifies that (1) the CITY constructed Channel Segment
in accordance with approved plans and (2) the CITY has
complied with the terms of this AGREEMENT and Sections
5.1 and 5.2 of the COOPERATIVE AGREEMENT, a copy of
which are attached hereto as Exhibit F.
B. DISTRICT shall not accept ownership and responsibility
for operation and maintenance of Flood Control
Improvements until the Amendment and Access Easement
deeds have been recorded. Should the CITY not comply
with its responsibilities set forth in Section 5 of the
COOPERATIVE AGREEMENT, DISTRICT reserves the right to
not accept ownership and operational and maintenance
responsibilities for the Flood Control Improvements
C. Upon completion of all segments of the Flood Control
Improvements and prior to acceptance by DISTRICT,
Director, at Director's sole discretion may require
CITY to perform a final inspection of the entire Flood
Control Improvements, correct any damage or distress
found and remove any debris or silt, entirely at CITY's
expense to Director's satisfaction.
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Barranca Channel Agreement No. D12 -053
D. If requested by the CITY, Director agrees to provide
notice to any public utility to rearrange, or relocate
its public utility facilities when the CITY and
Director concur in the determination that such
facilities conflict with the construction of the Flood
Control Improvements. Within the limitations provided
herein, DISTRICT agrees to invoke and exercise its
lawful rights under any applicable permits, licenses,
prior rights, etc., to cause such relocations and to
cooperate with CITY as appropriate to. effectuate such
rearrangement or relocation at the expense of the
affected public utility. In the event the public
utility fails to make the rearrangement or relocation,
DISTRICT shall, to the full extent allowed by law
and /or the applicable permit or license, assign its
rights to cause such rearrangement or relocation to the
CITY and in addition, if approved by the Board of
Supervisors, cooperate with and join with CITY as a
party in any litigation which becomes necessary as a
result of a public utility's failure to perform such
rearrangement or relocation; provided that such
rearrangements or relocations shall be made at no cost
to DISTRICT, including, but not limited to, any
litigation costs. Other than as specifically provided
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Barranca Channel Agreement No. D12 -053
herein, CITY shall be responsible for making all
necessary arrangements with such public utilities for
their protection, relocation or removal in accordance
with any applicable policies, procedures, permits,
licenses, etc., that may apply to such public
utilities.
SECTION 6. NOTICES
A. Notices or other communications which may be required
or provided under the terms of this AGREEMENT shall be
given as follows:
CITY: Director, Public Works Department
City of Tustin
300 Centennial Way
Tustin, CA 92780
Phone (714) 573 -3150
Facsimile No. (714) 734 -8991
DISTRICT: ORANGE COUNTY FLOOD CONTROL DISTRICT
Director of Orange County Public Works
Re: Barranca Channel(F09)D12 -053
P.O. Box 4048
Santa Ana, CA 92702 -4048
B. All notices shall be in writing and deemed effective
when delivered in person or deposited in the United
States mail, first class, postage prepaid and addressed
as above. Notwithstanding the above, PARTIES may also
provide notices by facsimile transmittal, and any such
notice so given shall be deemed to have been given upon
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Barranca Channel Agreement No. D12 -053
receipt during normal business hours or, in the event
of receipt after business, on the following business
day. Any notices, correspondence, reports and /or
statements authorized or required by this AGREEMENT,
addressed in any other fashion shall be deemed not
given.
C. The PARTIES may change the address to which notices are
to be sent by giving notice of such change to the other
PARTY.
SECTION 7. TERMINATION
A. The term of this AGREEMENT shall commence upon approval
by CITY and DISTRICT'S Board of Supervisors, and shall
terminate upon the completion of all obligations as
provided for in this AGREEMENT.
B. At any time prior to the start of CITY's construction
of the Channel Segment of the Flood Control
Improvements as noted in Section 2 (DESCRIPTION OF
FLOOD IMPROVEMENTS), CITY may, with or without cause,
terminate this AGREEMENT in accordance with the terms
and conditions described in this AGREEMENT. Notice of
Termination shall be in writing and shall state the
date upon which such termination is effective.
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Barranca Channel Agreement No. D12 -053
Notwithstanding the above, the CITY may not terminate
this AGREEMENT, unless the CITY has a permit or license
to operate and maintain any and all Flood Control
Improvements located upon DISTRICT -owned land or right-
of-way.
C. The following survive the termination of this
AGREEMENT: Section 4E (CITY RESPOSIBILITIES), Section 8
(INDEMNIFICATION), Section 9 (HAZARDOUS OR TOXIC
MATERIALS), and Section 10 (WAIVER OF RIGHTS); provided
that only Section 8 (INDEMNIFICATION) and Section 10
(WAIVER OF RIGHTS) shall survive should CITY terminate
this AGREEMENT pursuant to Section 7B above.
SECTION 8. INDEMNIFICATION
A. CITY agrees to indemnify, defend (with counsel approved
in writing by DISTRICT), and hold harmless DISTRICT and
the County of Orange ( "COUNTY "), their elected and
appointed officials, officers, employees, agents
(including their contractors and subcontractors),
licensees, and representatives (collectively, the
"DISTRICT /COUNTY INDEMNITEES ") , and each of them, and
its and their property from all loss, liability,
damages, claims, costs and expenses (including
attorneys' fees and court costs) arising out of, based
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Barranca Channel Agreement No. D12 -053
upon or relating to a breach of the AGREEMENT by CITY,
the willful misconduct or negligent acts or omissions
of CITY the CITY INDEMNITEES (as defined in Section 8.B
below), use of the Flood Control Improvements including
the Channel Segment and its surface by the CITY, CITY
INDEMNITEES, including but limited to the general
public using the public roadway in connection with this
AGREEMENT; provided, however, that nothing contained in
this subsection shall operate to relieve
DISTRICT /COUNTY or DISTRICT /COUNTY INDEMNITEES from any
loss, 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 of DISTRICT /COUNTY
or DISTRICT /COUNTY INDEMNITEES, or any of them. If
judgment is entered against CITY and DISTRICT /COUNTY by
a court of competent jurisdiction because of the
concurrent active negligence of DISTRICT /COUNTY or
DISTRICT /COUNTY INDEMNITEES, CITY and DISTRICT agree
that liability will be apportioned as determined by the
court. Neither party shall request a jury
apportionment. Notwithstanding anything stated above,
nothing contained herein shall relieve CITY of any
insurance requirements or obligations elsewhere in this
AGREEMENT. Payment shall not be a condition precedent
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Barranca Channel Agreement No. D12 -053
to recovery under the forgoing indemnity.
B. DISTRICT hereby agrees to indemnify, defend (with
counsel approved in writing by CITY), release and hold
harmless CITY, its elected and appointed officials,
officers, employees, agents (including their
contractors and subcontractors) , licensees, invitees,
and representatives (collectively, the "CITY
INDEMNITEES ") , and each of them, and its and their
property from all loss, liability, damages, claims,
costs and expenses (including attorneys' fees and court
costs) arising out of, based upon or relating to a
breach of this AGREEMENT by DISTRICT or the willful
misconduct or negligent acts of DISTRICT /COUNTY or
DISTRICT /COUNTY INDEMNITEES in connection with this
AGREEMENT; provided, however, that nothing contained in
this subsection shall operate to relieve CITY or CITY
INDEMNITEES from any loss, 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 of
CITY or CITY INDEMNITEES, or any of them. If judgment
is entered against CITY and DISTRICT /COUNTY by a court
of competent jurisdiction because of the concurrent
active negligence of CITY OR CITY INDEMNITEES, CITY and
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Barranca Channel Agreement No. D12 -053
DISTRICT agree that liability will be apportioned as
determined by the court. Neither party shall request a
jury apportionment. Payment shall not be a condition
precedent to recovery under the forgoing indemnity.
SECTION 9. HAZARDOUS OR TOXIC MATERIALS
A. DISTRICT acknowledges that the location of the Flood
Control Improvements was previously owned by the United
States of America, acting by and through the Department
of the Navy ( "DON ") . The DON conveyed the subject
property to CITY by Quitclaim Deed from the United
States Government dated September 5, 2006 and recorded
on September 12, 2006 as instrument no. 2006000606385
( "Deed ") with the Orange County Recorder. Pursuant to
Section 2.4.3 entitled Additional Remediation
Obligation [CERCLA 42 U.S.0 Section 9620 (h) (3) (A)
(ii) (II)] of the Deed, the United States covenants and
warrants that they shall conduct any additional
remedial action found to be necessary after the date of
transfer for any hazardous substances existing on the
subject property prior to the date of the Deed. In
addition, under provisions Section 2. 4.4 entitled
Access [CERCLA 42 U.S.C. Section 9260 (h) (3) (A)
of the Deed, the CITY agreed, on behalf of
itself or any assigns, as a covenant running with the
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Barranca Channel Agreement No. D12 -053
land, that the United States shall have the right with
reasonable notice to enter upon the property to carry
out response action, or corrective action on the adjoin
property. If requested by CITY, DISTRICT shall provide
such reasonable access to the United States. There are
no rights or claims on account of such entries against
the United States of America, or its agents.
B. CITY agrees to establish a Soils Management Plan and
perform all required actions in accordance with Section
4.G herein to remediate any /all areas of contaminated
soil encountered during the construction in accordance
with this Agreement.
C. Nothing in this AGREEMENT is intended to abate the
obligations of the PARTIES as established in Section 13
(Hazardous and Toxic Materials) of the COOPERATIVE
AGREEMENT.
SECTION 10. WAIVER OF RIGHTS
The failure by CITY or 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 CITY or DISTRICT may have, and shall
not be deemed a waiver of the right to require strict
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Barranca Channel Agreement No. D12 -053
performance of all the terms, covenants and conditions of
this AGREEMENT thereafter, nor a waiver of any remedy for
the subsequent breach or default of any term, covenant or
condition of this AGREEMENT.
SECTION 11. 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 fullest extent
reasonably possible.
SECTION 12. ATTORNEYS' FEES /COSTS
Should litigation be necessary to enforce any terms or
provisions of this AGREEMENT, then each PARTY shall bear
its own litigation and collection expenses, witness fees,
court costs and attorneys' fees.
SECTION 13. EXHIBITS
This AGREEMENT incorporates by this reference, the
following exhibits, which are attached hereto:
13.1 Exhibit A- Location Map
13.2 Exhibit B- Easement Deed Amendment and Quitclaim Deed
13.3 Exhibit C- Grant of Easement (O.R. 9924/289)
13.4 Exhibit D- Access Easement
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Barranca Channel Agreement No. D12 -053
13.5 Exhibit E- Title Exceptions
13.6 Exhibit F- Cooperative Agreement D02 -119, Section 5
SECTION 19. WAIVER AND INTERPRETATION
Titles or captions herein are inserted as a matter of
convenience and for reference, and in no way define,
4
limit, extend, or describe the scope of this AGREEMENT or
any provisions hereof. No provision in this AGREEMENT is
to be interpreted for or against PARTY because that PARTY
or its legal representative drafted such provision.
SECTION 15. 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.
SECTION 16. AMENDMENT(S)
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.
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Barranca Channel Agreement No. D12 -053
SECTION 17. ENTIRE AGREEMENT
This AGREEMENT, its exhibits, Agreement D02 -119, the
COOPERATIVE AGREEMENT, and any CPP issued for the Flood
Control Improvements, or any portions thereof, set forth the
entire AGREEMENT between CITY and DISTRICT and may be
modified only by future written amendment between the
PARTIES hereto, in accordance with Section 16.
SECTION 18. NO THIRD PARTY BENEFICIARIES
Nothing in the AGREEMENT shall create any rights or
liabilities for any entity not a party hereto.
SECTION 19. 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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Harranca Channel Agreement No. D12-053
IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by
its duly authorized representatives as of the date set forth above.
CITY OF TUSTIN,
a municipal corporation
of the State of California
Date: BY:
Jeffrey C. Parker
City Manager
ATTEST:
Date: BY:
Jeffrey C. Parker
City Clerk
A—..ROVED AS TO FORM:
Date: 6/6//q tat r WA/— eat;
David E. Kendig
City Attorney
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1003261.1
Barranca Channel Agreement No. D12 -053
Date:
Date:
APPROVED AS TO FORM:
Office of the COUNTY COUNSEL
Orange County, California
LM
Deputy
Date:
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic
By
Chair of the Board of Supervisors
Orange County, California
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:
0
Susan Novak
Clerk of the Board of Supervisors
Orange County, California
23
1003261.1
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OC PUBLIC WORKS I ID #2013 -023
OC SURVEY LOCATION MAP
RIGHT - OF - WAY ENGINEERING SCALE: 1" = 600' Sheet 1 of 1
PROJECT: BARRANCA CHANNEL IMPROVEMENTS, AGREEMENT NO. D12 -053
RECORDED AT THE REQUEST OF
AND WHEN RECORDED MAIL TO:
County of Orange, OC Public Works
Right of Way Engineering
P.O. Box 4048
Santa Ana, CA 92702 -4048
APN:
i
THIS SPACE FOR RECORDER'S USE ONLY
DOCUMENTARY TRANSFER TAX S
Computed on the consideration or value of property conveyed
_ Exempt per Revenue & Taxation Code Section 11922
Exempt from Recording Fees per Govt Code Section 27383
By:
SIGNATURE OF DECINNNr OR AGENT DETER!W GTAX FI NA E
❑ Unincorporated Area
® Incorporated - City of Tustin
Parcel No: F09 -201, 201.1, 205, 206
Project: Barranca Channel
EASEMENT DEED AMENDMENT
AND QUITCLAIM DEED
This Easement Deed Amendment and Quitclaim Deed ( "Amendment ") is entered into between the
CITY OF TUSTIN, a municipal corporation, hereinafter referred to as "CITY," and the ORANGE
COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic hereinafter referred to as
"DISTRICT." CITY and DISTRICT may sometimes hereinafter be individually referred to as
"Party" or jointly as "Parties ".
RECITALS
A. Pursuant to that document entitled "Grant of Easement" dated October 21, 1970 and
recorded December 14, 1971 in Book 9924, Page 289 of the Official Records of Orange
County, California as Instrument No. 10985 ( "Barranca Easement "), DISTRICT holds
easement rights in, over, and across that certain real property described in that document as
"Premises ". The Premises are to be modified by this Amendment and the Premises as
modified by this Amendment shall hereinafter be referred to as "Easement Area ".
B. Pursuant to that certain Quitclaim Deed recorded September 12, 2006 in the Official Records of
Orange County, California as Instrument No. 2006000606385 ( "Deed "), CITY acquired all
rights, title, and interest held by the United States of America, acting by and through the
Department of the Navy ( "DON "), the "grantor" in the Barranca Easement.
C. CITY and DISTRICT entered into that certain Agreement D02 -119 dated March 17, 2003
( "Agreement ") which enabled the CITY to construct certain improvements within the Easement
Area, including an underground concrete conduit sufficient to support an HS20 44 highway
Bammca Channel -1 -21 -2014
..ICY
loading, an inlet, outlet and related structures within the Easement Area in accordance with
DISTRICT'S standards and criteria ( "Flood Control Improvements "). The CITY constructed
the Flood Control Improvements in order to utilize its covered surface as a public road.
D. In conjunction with the Agreement, CITY agreed to assume obligations and responsibilities
which run with the land that are associated with utilization of the Flood Control Improvements
surface within the Easement Area. For that purpose, the Parties agree to amend the Barranca
Easement with the terms and conditions herein which shall relate back and be deemed in
place as of the initial recording date of the Barranca Easement. Other than the terms herein,
this Amendment shall not otherwise affect, alter, or change the Barranca Easement. As to any
inconsistency existing between with the terms of this Amendment and the terms in the Barranca
Easement, the Parties agree the terms of this Amendment shall control.
For valuable consideration, receipt of which is hereby acknowledged, the Parties agree to the following
terms, conditions, and reservations:
RECITALS
Each of the above Recitals is incorporated herein and is true and correct.
2. MODIFICATION OF EASEMENT AREA
The Premises are modified as follows:
a) DISTRICT quitclaims to CITY the area described in "Exhibit I" and depicted in
"Exhibit 2 "; and
b) City conveys to DISTRICT new easement areas as described in "Exhibit 3 "and
depicted in "Exhibit 4" for the purpose of DISTRICT's ownership and operation
and maintenance of Flood Control Improvements.
3. CITY'S USE OF THE SURFACE
a) CITY shall have the right to use the surface of a portion of the Easement Area
depicted in Exhibit 3 for a public roadway;
b) CITY's use of the surface within the Easement Area shall be compatible with and
not prejudicial to the flood control and water conservation purposes of
construction, installation, maintenance, operation, repair, reconstruction, and
replacement of the Flood Control Improvements. Therefore, the CITY agrees its
rights with respect to the surface of the Flood Control Improvements in the
Easement Area are subject to the following express limitations, terms, and
conditions:
i) Except for those existing streets, curbs, paving, landscaping and related
roadway improvements above the Easement Area, no buildings or permanent
structures or additional earth fill will be permitted within the Easement Area
unless approved as provided below. In addition, no block wall creating a water
barrier across the Easement Area will be permitted.
ii) No improvements or other construction activities shall be commenced within
the Easement Area until the plans for such construction have first been
-2-
Bananca Channel _1.21.2014
EXHIBIT B
approved in writing by the Director, Orange County Public Works of the
County of Orange or his /her designee (hereinafter referred to as "Director ").
If CITY is granting utility companies or other third parties rights by permit,
franchise, or otherwise for improvements or other construction activities
within the Easement Area, said third parties construction or installation shall
not commence until the plans have been approved by the Director and a
County Property Permit has been obtained with payment of normal processing
fees therefor. Except for improvements owned by DISTRICT, all surface
improvements owned, constructed, placed within, upon, under or above the
Easement Area by CITY which may be allowed by the Director shall be
operated and maintained at no cost to DISTRICT.
iii) In the event DISTRICT finds it necessary in the future to enter on and disturb
the surface or subsurface of the above described land in order to maintain,
repair, reconstruct, replace, improve or enlarge the Flood Control
Improvements, DISTRICT'S only responsibility shall be to restore any section
of the Flood Control Improvements affected to the same load specifications as
originally constructed and to backfill with compacted earth to the grade of the
surrounding property following completion of DISTRICT'S activity. CITY
shall restore affected surface improvements to design and grade as approved
by Director at CITY'S sole expense.
iv) Unless the Director determines an emergency exists making prior notice to the
CITY impracticable, DISTRICT shall give CITY prior written notice if
DISTRICT intends to disturb the surface of the Easement Area. That notice
shall be given by DISTRICT to CITY not less than 60 days prior and shall
specify the date of such entry, the duration thereof and the nature of the work
to be performed by DISTRICT. DISTRICT further agrees to use its best efforts
to minimize any inconvenience to CITY or CITY's adjoining property and to
minimize the period of time that the surface of the Easement Area will be
disturbed.
4. FLOOD CONTROL IMPROVEMENT REPLACEMENT OBLIGATIONS
In the event of (a) damage or destruction to all or a portion of the Flood Control
Improvements as a result of acts of God or other causes beyond the control of and not
caused by the acts or omissions of DISTRICT or CITY, or (b) the need to replace all or a
portion of the Flood Control Improvements (restoration, repair and replacement of all or a
portion of the Flood Control Improvements for either of the above reasons, or a change in
DISTRICT'S criteria for appropriate flood protection (hereinafter referred to as a
"Replacement "), then the Parties agree that their responsibilities regarding a
Replacement and for payment of the costs of the Replacement thereof shall be governed
by the provisions contained in "Exhibit 5" attached hereto and made a part hereof.
5. HOLD HARMLESS
Section 6 of the Barranca Easement is hereby deleted in its entirety and replaced with the
following:
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Bartanca Channel _1- 21.2014
EXHIBIT B
"Section 6. HOLD HARMLESS
CITY agrees to hold DISTRICT harmless from any claims for damages and cost of the
Flood Control Improvements caused by overloading of said Flood Control Improvements
and shall reimburse DISTRICT for the costs of Flood Control Improvements repair or
reconstruction caused by such overloading unless same is due to the acts or conduct of the
District, its employees, agents or contractors.
CITY agrees to hold DISTRICT harmless from any claims for damage to CITY's
installations caused by flood or overflow conditions. However, nothing in this paragraph
shall operate to relieve DISTRICT from any claims for damage to the extent determined
by a court of competent jurisdiction to have been caused by the willful misconduct or
negligent acts or omissions of DISTRICT, its employees, agents or contractors. For
purposes of determining liability related to the operation and maintenance of the Flood
Control Improvements, the PARTIES acknowledge and agree that DISTRICT shall not be
deemed negligent if DISTRICT operates and maintains the Flood Control Improvements
in substantial conformance with standard DISTRICT practices used for similar DISTRICT
facilities.
CITY, its successors or assigns, agrees to indemnify, defend with counsel approved in
writing by DISTRICT, and hold harmless DISTRICT and the County of Orange, their
elected and appointed officials, officers, agents and employees from any and all penalties,
liabilities or losses resulting from claims or court actions arising directly or indirectly
out of any injury to persons or damage to property by reason of the acts or omissions,
intentional or otherwise, of CITY, its agents, employees, contractors, franchisees, or
licensees in exercising any of the privileges herein reserved or in consequence thereof,
including but not limited to use of the Easement Area by CITY, its employees,
contractors, invitees, franchisees, or licensees.
Unless otherwise provided in this Amendment, the terms, covenants, and conditions contained
herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all
the Parties hereto, all of whom shall be jointly and severally liable hereunder."
6. HAZARDOUS MATERIALS
The rights and obligations of the DISTRICT and CITY as it relate to the presence or
release of hazardous substance and materials within the Easement Area are as follows:
a) DISTRICT acknowledges that the'Easement Area was previously owned by the
United States of America, acting by and through the DON. Pursuant to Section
2.4.3 entitled Additional Remediation Obligation [CERCLA 42 U.S.0 Section
9620 (h) (3) (A) (ii) (Il)] of the Deed, the United States covenants and warrants
that they shall conduct any additional remedial action found to be necessary after
the date of transfer for any hazardous substances existing on the subject property
prior to the date of the Deed. In addition, under provisions Section 2.4.4 entitled
Access [CERCLA 42 U.S.C. Section 9260 (h) (3) (A) (iii)] of the Deed, the CITY
agreed, on behalf of itself or any assigns, as a covenant running with the land, that
the United States shall have the right with reasonable notice to enter upon the
property to carry out response action, or corrective action on the adjoin property.
There are no rights or claims on account of such entries against the United States
of America, or its agents.
-4-
Baaanca Channel .1 -21 -2014
b) Nothing in this Amendment is intended nor shall anything in this Amendment be
construed to transfer to DISTRICT or County of Orange or their successors or
assigns or to relieve CITY or its successors or assigns or predecessors in title of
any responsibility or liability that the CITY or its successors or assigns or
predecessors in title now has, has had or comes to have with respect to human
health or the environment, including but not limited to responsibility or liability
relating to pre- existing hazardous or toxic substances or materials (as such terms
as those used in this sentence are defined by statute, ordinance, case law,
government regulations or other provisions of the law). Furthermore, DISTRICT
may exercise its right under law to bring action, if necessary, to recover clean -up
costs and penalties paid, if any, from CITY or any others who are ultimately
determined by a court of competent jurisdiction and/or a federal, state or local
regulatory or administrative governmental agency or body having jurisdiction, to
have responsibility for said hazardous or toxic substances or materials upon,
within, or under the real property interests transferred pursuant to this
Amendment. Notwithstanding the forgoing, CITY shall be and remain liable for
any hazardous or toxic substances or materials or which are mobilized, released or
otherwise exposed because of CITY'S construction activities, upon, within, or
under the Easement Area. However, DISTRICT shall notify CITY of its discovery
of any hazardous substance or material and allow the CITY to conduct any
necessary investigation of such substance or material to determine the source of
the hazardous substance and material and remediation prior to the DISTRICT
exercising its right to clean up such substance and seek recovery of clean -up costs
from the CITY. Notwithstanding the foregoing, DISTRICT shall be and remain
liable for any hazardous or toxic substances or materials which become located,
because of DISTRICT'S operations, upon, within, or under the Easement Area.
7. NOTICES
All notices, documents, correspondence, and communications concerning this Amendment
shall be addressed as set forth in this paragraph, or as the Parties may hereafter designate
by written notice, and shall be sent through the United States mail, duly registered or
certified with postage prepaid. Any such mailing shall be deemed served or delivered
twenty -four (24) hours after mailing. Each Party may change the address for notices by
giving the other Party at least ten (10) calendar days prior written notice of the new
address.
Notwithstanding the above, DISTRICT may also provide notices, documents,
correspondence, or such other communications to CITY by personal delivery, regular
mail, or facsimile and, so given, shall be deemed to have been given upon receipt if
provided by personal delivery or facsimile, or forty -eight (48) hours after mailing if
provided by regular mail.
-5-
Bananca Channel -1 -21 -2014
To CITY:
City of Tustin
c/o Director, Public Works Department
300 Centennial Way
Tustin, CA 92780
Phone (714) 573 -3150
Facsimile No. (714) 734 -8991
VENUE
To DISTRICT:
Orange County Flood Control District
c/o OC Public Works/Real Estate Services
RE: Barranca Channel (F09) Easement
P.O. Box 4048
Santa Ana, CA 92702 -4048
Facsimile No. (714) 834 -2395
The Parties hereto agree that this Amendment has been negotiated and executed in the
State of California and shall be governed by and construed under the laws of California.
In the event of any legal action to enforce or interpret this Amendment, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County,
California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such
court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties
hereto specifically agree to waive any and all rights to request that an action be
transferred for trial to another county.
9. WAIVER OF RIGHTS
The failure of the DISTRICT to insist upon strict performance of any of the terms,
covenants, or conditions of this Amendment 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 the Amendment
thereafter, nor a waiver of any remedy for the subsequent breach or default of any term,
covenant, or condition of the Amendment.
10. ATTORNEY'S FEES
In any action or proceeding brought to
Amendment, or where any provision here
shall bear its own attorney's fees and costs.
11. SUCCESORS AND ASSIGNS
enforce or interpret any provision of this
of is validly asserted as a defense, each Party
This Amendment shall be binding on the successors and assigns of the Parties hereto.
12. AUTHORITY
The Parties to this Amendment represent and warrant that this Amendment has been duly
authorized and executed and constitutes the legally binding obligation of their respective
organization or entity, enforceable in accordance with its terms.
Signature Pages Follow
-6-
Baaanca Channel .1 -21 -2014
Date:
DATE:
Date:
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
EXHIBIT B
CITY
CITY OF TUSTIN, a municipal corporation
of the State of California
By:
Jeffrey C. Parker
City Manager
ATTEST:
By:
Jeffrey C. Parker
City Clerk
APPROVED AS TO FORM:
By:
David E. Kendig
City Attorney
DISTRICT'S signature on following page
ACKNOWLEDGMENT
On , 20 _ before me, , a notary public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
-7-
Bananca Channel -1 -21 -2014
Approved as to Form
Office of the County Counsel
Orange County, California
By:
Deputy
Date:
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On , 20 _ before me,
personally appeared
ORANGE COUNTY FLOOD CONTROL
DISTRICT
By:
Shane Silsby, P.E., Director
OC Public Works
Orange County, California
Per Minute Order
ACKNOWLEDGMENT
a notary public,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized
capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Ban-anca Channel -1-21-2014
Exhibit 1
Lesal Description of Quitclaim Area
Damanca Channel -1-21-2014
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
February 11, 2014
EXHIBIT 1 JN 10- 104755/134065
Pagel of 2
LEGAL DESCRIPTION
O.C.F.C.D. FACILITY NO. F09
PARCEL 201.1
That certain parcel of land situated in the City of Tustin, County of Orange, State of California,
lying within a portion of Block 9 or Irvine's Subdivision as shown on a map thereof filed in
Book 11, Page 88 of Miscellaneous Record Maps in the Office of the County Recorder of said
Orange County, being all of that 50.00 feet strip of land as described in that certain Grant of
Easement to the Orange County Flood Control District recorded December 14, 1971 in Book
9924, Page 289 of Official Records in said Office of the County Recorder, BOUNDED ON THE
NORTHWEST by the southeasterly line of that certain strip of land described as follows:
Being a strip of land 50.00 feet wide, the centerline of which is described as follows:
COMMENCING at the centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on Tract No. 17144 tiled in Book 906, Pages 5 through 14 of Miscellaneous Maps in the
Office of the County Recorder of said Orange County; thence along said centerline of Barranca
Parkway South 49° 19'41" East 239.06 feet; thence North 40040'19" East 110.00 feet to a point on
the southwesterly line of Lot '`MM" as shown on said tract and the TRUE POINT OF
BEGINNING, said point also being on a non - tangent curve concave northwesterly and having a
radius of 90.00, a radial line of said curve from said point bears North 03 °05'28" West; thence
Northwesterly along said curve 68.74 feet through a central angle of 43 °45'47 ".
The sidelines of said strip shall be lengthened or shortened so as to terminate northeasterly by the
southwesterly line of said Lot "MM ".
and BOUNDED ON THE SOUTHEAST by the northwesterly line of that certain strip of land
described as follows:
Being a strip of land 50.00 feet wide, the centerline of which is described as follows:
COMMENCING at said centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on said Tract No. 17144; thence along said centerline of Barranca Parkway
South 49° 19'41" East 716.09 feet; thence North 40'40'19" East 1 10.00 feet to a point on the
southwesterly line of said Lot "MM ", said point also being on a non - tangent curve concave
easterly and having a radius of 90.00 feet, a radial line of said curve from said point bears
North 84 °26'13" East: thence along said curve southerly and southeasterly 68.75 feet through a
RBF Consulting
O.C.F.C.D. Facility No. F09
Exhibit 1
February 11, 2014
JN 10- 104755/134065
Page 2 of 2
central angle of 43 °45'54" and the TRUE POINT OF BEGINNING; thence retracing along
said last curve and prolongation thereof northwesterly and northerly 73.52 feet through a central
angle of 46'40'37"; thence tangent from said curve North 02 °39'04" West 24.17 feet.
CONTAINING: 23,405 Square Feet
SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of Record.
EXHIBIT 2 attached and by this reference made a part hereof.
2/14/2014
Kurt R. Troxell, L.S. 7854
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* 7954
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Exhibit 2
Depiction of Ouitclaim Area
_12_
6amanca Channel -1- 212014
_ CITY OF SANTA ANA_ j
CITY OF TUSTIN
RED HILL AVENUE
P.O.C.
LINE TABLE
NO.
BEARING
LENGTH
L1
N 40'40'19" E
110.00'
L2
N 02'39'04" W
19.11'
L3
N 40 °40'19" E
110.00'
0
1 50'
M i „o L0 r " MM' �Ll O T " FF'
CURVE TABLE
NO.
DELTA
RADIUS
N40 40'19"E (R)
Cl
55 °35'00•'
115.00'
111.56'
C2
43 °45'47°
90.00'
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NO.
DELTA
RADIUS
LENGTH
Cl
55 °35'00•'
115.00'
111.56'
C2
43 °45'47°
90.00'
CL 00
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NO.
DELTA
RADIUS
LENGTH
Cl
55 °35'00•'
115.00'
111.56'
C2
43 °45'47°
90.00'
68.74'
C3
43 °45'54"
90.00'
68.75'
C4
46 °40'37"
115.00'
93.69'
I
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60'
EXHIBIT 2 _7T
s�raHIBI wANrA
LEG& DESCRIPTION FOR
O.C.F.C.D. FACILITY NO. F09
PARCEL 201.1
CONTAIN: 23.405 SO. FT.
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Exhibit 3
Legal Description of Easement Area
added by virtue of this Amendment
-13-
Barmnca Channel
- I- ?I -201A
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
February 11, 2014
EXHIBIT 3 JN 134065
Pagel of 2
LEGAL DESCRIPTION
O.C.F.C.D. FACILITY NO. F09
PARCELS 205 & 206
Those certain parcels of land situated in the City of Tustin, County of Orange, State of
California, being those certain portions of Lot 23 of Tract No. 17026 as shown on a map thereof
filed in Book 884, Pages 1 through 14 of Miscellaneous Maps in the Office of the County
Recorder of said Orange County, described as follows:
PARCEL 205
A strip of land 50.00 feet wide, the centerline of which is described as follows:
COMMENCING at the centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on said Tract No. 17026; thence along said centerline of Barranca Parkway
South 49° 19'41" East 239.06 feet; thence North 40 °40'19" East 1 10.00 feet to a point on the
southwesterly line of said Lot 23 and the TRUE POINT OF BEGINNING, said point also
being on a non- tangent curve concave northwesterly and having a radius of 90.00, a radial line of
said curve from said point bears North 03 °05'28" West; thence along said curve northeasterly
53.27 feet through a central angle of 33 °54'54 "; thence tangent from said curve
North 52 °59'38" East 46.60 feet.
Said strip of land shall be lengthened or shortened so as to terminate southwesterly in said
southwesterly line of Lot 23.
CONTAINING: 5099 Square Feet.
PARCEL 206
A strip of land 50.00 feet wide, the centerline of which is described as follows:
COMMENCING at said centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on said Tract No. 17026; thence along said centerline of Barranca Parkway
South 49 °19'41" East 716.09 feet; thence North 40 °40'19" East 110.00 feet to a point on the
Page 2 of 2
Exhibit 3
southwesterly line of said Lot 23 and the TRUE POINT OF BEGINNING, said point also
being on a non - tangent curve concave easterly and having a radius of 90.00 feet, a radial line of
said curve from said point bears North 84'26'13 " East; thence along said curve northerly 4.57
feet through a central angle of 02 °54'43'; thence tangent from said curve North 02 °39'04" West
24.17 feet.
Said strip of land shall be lengthened or shortened so as to terminate southwesterly in said
southwesterly line of Lot 23.
CONTAINING: 1533 Square Feet.
SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of Record.
EXHIBIT 4 attached and by this reference made a part hereof.
KURT FL
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Kurt R. Troxell, L.S. 7854 * 7854
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Exhibit 4
Depiction of Easement Area
added by virtue of this Amendment
-14-
Bwranca Channel -1 -21 -2014
CITY OF SANTA ANA_
CITY OF TUSTIN
P.0 °C° RED HILL AVENUE _ M
PARCEL 205
PARCEL 206
LINE TABLE
NO.
BEARING
LENGTH
L1
N40 °40'19 'E
110.00'
L2
N52 °59'38 "E
46.60'
L3
N0 2 °39'04 'W
24.17'
I 50
LOT "W' LOT " FF"
rn
M
N �NO3 °05'28 "W
30' 7 (RAD) T.P.03
PARCEL 205
CURVE TABLE
NO.
DELTA
RADIUS
LENGTH
Cl
33 °54'54"
90.00'
53.27'
C2
02 °54'43"
90.00'
4.57'
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PARCEL 206 N84 26 13'E 6
(RAD) � C�
DETAIL _1_11
N.T.S.
T.P.0.13 Y
EXHIBIT 4 PARCEL 206
1,0'
SKETCH TO ACCOMPANY A
LEGAL DESCAIPIION FOR
O.C.F.C.D. FACILITY NO. F09
PARCEL 205 & 209
H:
i
N /
C?
PARCEL 20:
5099 SO. FT.
I L OT "H"
TRACT NO. 17144
20'
\ s
� EE DETAIL
\ HEREON
N18°46 42'i
(RAD)
-LOT " LL" LOT 5
rte_
SHEET I OF 1 SHEET
� oe•oH • ca�•rn ucnoH
• ■ ■ :QTtl ALTO PA AY
Yi1'!E CAIfpN� 9]EIFAlI
CONSULTING sao"nasm . vuc wwn■m . ■..�co"
FEBRUARY 11
om
i ..iP
Exhibit 5
REPLACEMENT COST SHARE
In the event of a Replacement of all or a portion of the Flood Control Improvements as described
in Section 4 of this Amendment, the respective responsibilities and obligations of the CITY and
DISTRICT shall be as follows.
Replacement Responsibilities: DISTRICT shall perform all Replacement of the Flood
Control Improvements. DISTRICT shall not be responsible for repairing, restoring, or
replacing any surface improvements above the Flood Control Improvements that are
subject to Replacement. DISTRICT shall commence such Replacement as soon as
practicable, although the precise schedule shall be determined by the Director after
consultation with CITY, upon the Director's determination that Replacement is
necessary. After commencement of construction, DISTRICT shall diligently work to
complete the Replacement, subject to delays caused by acts of God, labor strikes or
other matters beyond the reasonable control of DISTRICT.
2. Costs of Replacement: DISTRICT shall be responsible for paying 65% of all the costs
of the Replacement of the Flood Control Improvements (hereinafter referred to as
"DISTRICT'S Share "), and CITY shall be responsible for paying the remaining 35%
of such costs (hereinafter referred to as "CITY'S Share "). DISTRICT and CITY have
agreed to this cost share of responsibility for paying the Replacement costs based
upon their mutual agreement as to the cost differential of keeping the Flood Control
Improvements as an underground concrete box conduit for the CITY'S benefit of
utilizing the surface as a public street, as opposed to an open channel facility. The
repairs and/or replacement of any surface improvements above the Flood Control
Improvements that are required as a result of the Replacement of the Flood Control
Improvements shall be performed by CITY at its expense and shall not be considered
in the allocation of costs related to a Replacement of the Flood Control Improvements
hereunder.
Payment of Costs: Prior to commencement of the Replacement, DISTRICT shall provide CITY
with a good faith estimate of the Replacement cost of the Flood Control Improvements, with a
breakdown of CITY'S Share and DISTRICT'S Share for such cost. CITY shall pay CITY'S share
to DISTRICT within sixty (60) days of CITY'S receipt of DISTRICT'S invoice together with
reasonable documentary evidence of the nature and necessity of the costs based on DISTRICT'S
good faith estimate. Within sixty (60) days of construction, DISTRICT will provide CITY with a
statement of the actual construction costs expended for the Replacement. Within sixty (60) days
thereafter, CITY shall deliver to DISTRICT payment of any difference between the amount of
CITY'S Share previously paid and CITY'S Share of the actual costs. If CITY'S Share paid to
DISTRICT exceeds CITY'S Share of the actual costs, DISTRICT shall refund to CITY the excess
amount paid by CITY within sixty (60) days of completion of construction.
-15-
Bananca Channel -1-21-2014
..II: 1 .
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY, that the interest quitclaimed by this Amendment from the ORANGE COUNTY
FLOOD CONTROL DISTRICT, a body corporate and politic, to the CITY OF TUSTIN, a municipal
corporation, is hereby accepted pursuant to authority granted to the undersigned by order of
the on -,20 subject to
the terms, conditions and reservations set forth therein, and the CITY consents to the recordation of said
Amendment.
CITY OF TUSTIN,
0
Date:
-9-
Barcanca Channel .1_21-2014
EXHIBIT B
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by this Amendment to the ORANGE
COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, is hereby accepted by order of
the Board of Supervisors of the County of Orange, California, acting as the governing board of the
ORANGE COUNTY FLOOD CONTROL DISTRICT, and the ORANGE COUNTY FLOOD
CONTROL DISTRICT consents to recordation thereof by its duly authorized officer.
DISTRICT
Dated:
Approved as to Form
Office of the County Counsel
Orange County, California
By:
Deputy
Date:
ORANGE COUNTY FLOOD CONTROL
LN
Shane Silsby, P.E., Director
OC Public Works
Orange County, California
Per Minute Order
-10-
Bartanca Channel -1 -21 -2014
EXHIBIT C
pea/. — ,2 0/
IC-0 9 - 20/
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Our �Jngcwta ff moo �
1! am Asam. Most aw CIL
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Cam 601i0 OEC 24
it
b•tv,wow sts,'UNIT 0 11TAT11 -Op A41111 worse
Sad.
�
-noon �'CCMTROL Dli iis a bad r corporate
forano 6T,aa, Mot, of the LaijilStUri of the State of
t'< Ciiiteta la, `harin[ pTistipaf plate of business Ii the Csoats,.
'of of C%14fwrulit 6ar oIStr lot
the owsWin'tgo siapl* Of a
I of an as titled as. thi miriao Carps Air"
-3 tat an, rx jaacWA a j Ca 1 1 1 ovala. Urelaoft tr,ullsd'
ill 0.1 attar 8
the'st►clas and,
WHILRAS, the qinvigt has isquui" the donvoyance of as
00643"Ist for i1• 40istraction, P
uses, repair of'& rio*4 control drsixalg a channel,
for flood- central; &64L water, conservatiali 'porpoise. acres a that
t tons" h*vvl*&fZar'4iiivIbsdt and ,
•waii"S,
she too asirs, of the Wavy ban, found thit'Chu'framt.
of rush a ea Naest On she tens= end^ canditiafto barSia&ftjr.
stated will not, be inasspavii10 with the pubs lu!ixtersit:
11011i THERSPOR11i this indOaturs witnoaseth t t Sla consider
,'ties of iolm Runargi Five waod�
a 4 10 Y-the Oistrice to t), • C succulent. the Govirms bereb7
Seems a auto the Said., olitriet'i its s■resss6ts 'M4 cattle*, In
parts ntrol
suits, �fvvmc 'the' data &lk 6i"Weat far flaid Ce
"aa4L Vitae, Coasevvition pGrqosbs
.. w all&im iwgaiv and roplac*mwat of a`.' -
.. .. ,. .. :. I ,...
21004 iosivei •4raiaaj 0-ob *apVj'L_h siginafter called the Ckamnal.
bj•CqjfjjSd j JW rb&Z Portia* if, the Stasfan, ease
'imarter 411ai wtitab :is shqvi is Exhible.-A"',
2
6.
4k
IC-0 9 - 20/
1 of 6
par gash stdorq
3EGIVAING
W111 Avew
a
EXHIBIT C
NRM 9 5:47
1`94
Coastal :'Uistrigt, map' xb.• Fog-
gi.. ;ad dds*g4o" is 'ieilovif
Y I and Shots pastiche, of Lots
2, subdiviclami In the county
r Mip,vvaords&:Jn 6"k.l.
ps in 'the. office of the County. -
in$ a strip at
has ::asulod S ,,
Shl an$ I as
Abed: editor li",
outheasterly line-Of and
.described -in, Vacrow'as'
2398'.Y.* filed January, Is.
f the United States,
4, c4stral Division.
the
soutswost*rly lluai if Lot lost 111once Parallel with
sold so
'ch
ottorlF Iiia of,s laid 'Leaf 101. 143 &444
,04,
h ,
. aging a =Tiig of'Sourk 50' Oil 01- Bast (SbuZN7
49'S$- SS -'East 0'#tari, per- said. Di4lovation of Taking.
civil 2399-Y)i a d4atisco If 419S.57 font to thc
b,gil,inir of a tastdot 'Cajgg,, teasers SamthV#St&rly
and having I radius at,'208.0 0 feat; themes Southerly
'151.95 Brut slams the are It said eurva. thTauxh� a
sk
IstraL sle, of 430 W_S2- ti Iii intersection. with:'.'
t 4.* southwesterly line of said Lot, 101* slid. point of
interdiction 14*1"s South so! oat Do- Base a distance-.
If 6363.12' t00% two& the war Westerly career at said
Lai 104. containing 4.99 acres, Rate or less.
THIS sAse"Wr is treated subject to the following %*ie$ and
'beed[t lens
2
1. All work. including government *"ad
M�Pra-auantj, In connection, with the ciastractiono installation. •
maintmairsto. operitiog. repair and raplacamant of the Channel
t r he Depart *at of th
oball,be d"*'vi tkout gas a expones'-te i
svy and in saaavdix4o'with plans and specifications praviouslyk
..appz9voi by the-'C"Muderi southwest 61v*S_jaMi MaVSj,LPmglll%j
ofuglae6wing CoPetudi bersinaftor-refaired to as: the Commander.
Put use - v ide,miss.. a **Pssl2s,.� coacTat lot, *.teacher ispravea4ats 1
pJaVija& for in call, p L liati shell be and* 7 1 tak I *a gal - y,&f L tow
draviats fixt. specifications fqrvuck�vork have son subsictod 0
sold approved' by the 6"Itca'arl.
24 'All: O.W."Somr. "ads, ftftaiia, itilill.2 aii4,,Ws)Wd;7
t.
iMpTsv,u*n2s:vh.iah must be MAT4i begins* of the come, "C*49" 0
f" h iol'1#1044ted or k spia4ad by
reconstruct ga�,* 'toe
4�
V
ts.
ld
2 of 6
EXHIBIT C
r. � c • . � +- +�wrxar� •*Y. � Y�'FrJ'rt5si a..s. F } _
�. IT S plc g92¢rr29(
t ►a OLS Kct L t aiwiw 1i>';e. qw; et.tlu V` KSltty_ icd #USXLty�P
-:to that shah exist" u
> '..determined :�br'eh- t;epeadl0}O[fiCST e!' #he:dtat fen.
S
The Ol strict 'Shall , 4th,
oaY ebrf ea expense to the '
.. .. , .
"0e9atingt, of the, Nampa add O.Abe option of end to the aatls=
.
fission :#$ the �Ceoendlaa Pert CST of the'stitlony promptly
rT repair 't replete all Coven pripesty daua &d or do troypd
'.';by the Otstrieti its agents, aplaress ar eestractors, as a
.; :Canis e[ the aanstruetiea, the fee to■traetiod, iistatlstlosi .,_.
use, ai'iatesanae, eyaritlen, i•piii and replaaoaat . et the
• a T ►e Otatsietll Ask iata3■ thaiprealoo* aid the Chasael.
in jsud cbadl(!on ee "Al Sias and *hall preupelr isha sll. rapalre
- �thereto '_•hlok mar hr'meeesaary for the pr&semti•a el -the edndi
'TITS of 9 h p real sea aad the eent inued'`opsrasios and uintentnce
S Th*'Oist'rits'e ria$ta beieauder seoll be; wbjtet to -such,
�puosi63e voice :"d r soli ion,'at aaY h. proaulg&tdi,by, thr
GO,rerancnt to issue that the uiieisi'. of such rights shall -rot �.
�e usseaaoaibly lntesfero With 0ererseena KOivitloa at oe Station,'
_TU'Dlserius thall also" all II Ubility toz each danajes,
t as any goverment 14di4,01 the Dtstl04 shali'satfer as a :Halt
I of She soeaerWisloep »eemtraetlop, tuasallation, riot aauee
epentlony repair ud. Wept aceaent of the Channel:.
7#1 All of any, part, Of the:.riahks- hor•!n treated Mailbe
te: at" tad -upen failure w tho Diateict to: eoapl7 With ray et r"
sh,t•ru isd eonditiSas
✓ Duthie, gnat. "Upon ab•adeaNOt o! the
I
'withis granted herein, .. or uDdn soi.usa:s t, aaah debts fir a
period of two coal &active -Year*- ..is is yedetatood by Ike 'part
4ee
hinCe tbiTshe Chanel v111 be tenHenat ed on seta •aNUat - .few . 1
-within rgaoaable time aft er -tha- &to Of thi.''frant, but the
{ _
District's failure, to Construct •raid.Ch _a
canal rlebid . auo yeas
e.
is
S
Y;
Mno V"
EXHIBIT C }'
s ' r
ti
9924 292
- �p•rimd tee:suaeas baysaa /imfemtral<Yill;tec be eetetshtad u
\ t aen afa er'Abandonment + .
8, TM Dewntent tar biiih• Prenisea which are the - ash.;,
- ,•Jest ef:.thia Sam aneni. [er our purpose vhith Bees act treata_atL
" nntease»ble, interference with the use,or et)oyteec ii the. "
District -of.. •&causee,riphts tTant4.'hSrein andL vlinh does _
• J:; net, ar,eupporied by competent .ettinsarlet analysis. i.pair.tbi .,
;AYdtanile�•lutetioa i,�.n+t Of Said •Chstae/ I
r, Dndar eM Lto of CL we 7, ibors, npos- _tsrnlnasien. of!
�
the:nitune granted her•ta lt,doH »! hy= sAe.(;evarnwst, ibe
Dlstilat�- it`Sts aspects I shell; reaov: any std. all Smprarpam sI, -
�,..installed at cenatructad harsuader'eal restorer thepramiies to
il�e uu. or, /a te•d ei as tYat vSh'a:ian h ted prior, to the
-e ReF11nisi by the Dlrtrict ei Lta.zights herecader, such restors..
Alai to be- affecteddto tAe..aailsfaoslot of the Coanander .-
SK YfTKtSS- WXlhEOP the oovarnt•at', set ter by and through��
�tha dapartioot . ef'ths Navy has'- eaased this Instrument to be _
t
moment oo the day rear tirat abo4e vrittaa,
- UM [t!0 STATE -g p)._dIRAIC.t �-
Ceptasm. Cm D =.
'Approval by dlractlon of the6ot
Sunday.
'
079V-1 Navel' Paoititlas laainr•rt a
.. dI roata, antiaa wader the
ay owes for dlreatioo of the Secretary a
of the Wavy - -
` STATE OP CAhlpourA) I;
as.' i'
"CdIWITY'0►'ySAM MATto` ;" i'
cr r on ehi�n,T /At..daY. of .QT ✓�:J 197o,. betere'•t.
,a Motor public in and for safdl. !�
Cc may : and Stat. '--- — - 1 .
Parsoaslly appeared. , EA i0 _
nevn-to u to D!'ebe'pareon• Whose cue. I anbaeribed ate cbe �-
s '..
4of6
EXHIBIT C
1 rT NM`954
5 of 6
L:MD11991
606
OVA,
I.
01-1
71
%nn-As! -now to
606
EXHIBIT D
RECORDED AT THE REQUEST OF,
WHEN RECORDED MAIL TO:
County of Orange
OC Public Works
Real Estate Services
300 North Flower, 6`h Floor
Santa Ana, California 92703
Mail Tax Statements as shown above
APN: Portions of 430 -27 -024, 430 -27 -026, 430 -27 -056
430 -27 -057, 430- 27 -058, 430 -27 -060, & 430 -27 -067
This is to certify that this document is exempt
from recording fees per Govt. Code Sec. 27383
and is exempt from Document Transfer Tax per
Rev. & Taxation Code See. 11922.
OCPW REAL ESTATE SERVICES
THIS SPACE FOR
❑ Unincorporated Area
® Incorporated, City of Tustin
Project/Parcel No: F09- 202,203,204
Project Name: Barranca Channel
EASEMENT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CITY OF TUSTIN, a municipal corporation,
hereinafter referred to as "GRANTOR,"
hereby grants to
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic, hereinafter referred to as "DISTRICT,"
a perpetual, non - exclusive easement ( "Easement ")for vehicular and pedestrian access to a segment
of DISTRICT'S adjacent flood control facility known as the Barranca Channel (the "Facility ") on,
within, over and along a roadway, driveway, Barranca Retarding Basin (Basin), parking area or
road, paved or otherwise, having at least a 20- foot -wide clearance and being reasonably direct from
a public street ( "the Easement Area ") located on the real property in the City of Tustin, County of
Orange, state of California, described in "Exhibit A," and illustrated in "Exhibit B," (the
"Property") which exhibits are attached hereto and by reference made a part hereof.
The purpose of the Easement is for vehicular and pedestrian ingress and egress for operating,
maintaining, improving, reconstructing, enlarging and replacing DISTRICT'S Facility.
It is understood and agreed by GRANTOR and DISTRICT (hereinafter referred to collectively as
"Parties" or individually as "Party ") and their successors and assigns the rights herein granted are
subject to and limited by the following:
Barranca Access Easement 1 5.09.2013 (DIR)
EXHIBIT D
1. MODIFICATION OF EASEMENT AREA
GRANTOR retains the right to change, modify, eliminate, add to or replace the Easement Area at
any time upon ninety (90) days written notice to DISTRICT so long as GRANTOR maintains a
minimum 20- foot -wide clearance travelway for DISTRICT use from a public street to DISTRICT'S
Facility and receives approval from DISTRICT'S Director, OC Public Works or designee
( "Director ") which approval shall not be unreasonably withheld or delayed. Such 20 -foot wide
clearance travelway shall be reasonably direct from a public street to DISTRICT'S Facility. Said
right to relocate is personal to GRANTOR and as such is nontransferable, unless the transfer of such
right to a specified successor -in- interest of GRANTOR is expressly permitted in writing by
Director.
2. REVISION OF LEGAL DESCRIPTION (PMES5.1 N)
Upon completion of any development or redevelopment of any portion of the Property, GRANTOR
shall provide to DISTRICT an "as- built" plot plan with the Easement Area clearly marked thereon.
Upon any proposed alteration of the Property which results in a change in Easement Area,
GRANTOR shall give written notice of said proposed change to the Director and Director shall
have sixty (60) days to provide his or her approval of said proposed change, which approval shall
not be unreasonably withheld or delayed. If said proposed change is approved by Director,
GRANTOR shall provide to DISTRICT an "as- built" plot plan with the new Easement Area.
GRANTOR shall provide an Easement Area with a travelway with 20 -foot wide clearance, and a
50 -foot by 50 -foot turnaround area where needed, at all times for DISTRICT'S use.
In the event it becomes necessary to modify the Easement Area as provided in Section 1 above and
the legal description described in attached Exhibit A, is subsequently determined to inaccurately
describe the location of the Easement Area, the Parties agree that GRANTOR shall cause the legal
description and illustration to be revised upon written approval of the revised legal description by
Director. GRANTOR and Director shall amend this Easement Deed so as to replace the original
legal description with the revised legal description and illustration attached thereto respectively as
"Revised Exhibit A ", and "Revised Exhibit B ", and such amended Easement Deed shall be recorded
by GRANTOR at no cost to DISTRICT. The Parties agree that the amendment of Exhibit A and
Exhibit B and the re- recording of the Easement Deed shall not affect, alter, or change any of the
terms, conditions, prior rights, or reservations of this Easement Deed and further agree that the
amended and re- recorded Easement Deed shall relate back and be in place as of the initial date of
this Easement Deed prior to the revision of Exhibit A and Exhibit B.
3. GRANTOR LIABILITY FOR HAZARDOUS OR TOXIC MATERIALS (D7.1 S)
Nothing in this Easement is intended nor shall anything in this Easement Deed be construed to
transfer to DISTRICT or its successors or assigns or to relieve GRANTOR or its successors or
assigns or predecessors in title of any responsibility or liability GRANTOR or its successors or
assigns or predecessors in title now has, has had or comes to have with respect to human health or the
environment, including but not limited to responsibility or liability relating to hazardous or toxic
substances or materials (as such terms as those used in this sentence are defined by statute, ordinance,
case law, governmental regulation or other provision of the law). Furthermore, DISTRICT may
exercise its rights under law to bring action, if necessary, to recover clean-up costs and penalties paid,
if any, from GRANTOR or any others who are ultimately determined by a court of competent
Barranca Access Easement 2 5.09.2013 (DIR)
EXHIBIT D
jurisdiction and/or a Federal, state or local regulatory or administrative governmental agency or body
having jurisdiction, to have responsibility for said hazardous toxic substances or materials upon,
within, or under the real property interests transferred pursuant to this Easement Deed.
Notwithstanding the forgoing, DISTRICT shall be and remain liable for any hazardous or toxic
substances or materials which become located, because of DISTRICT'S operations, upon, within, or
under the real property interests transferred pursuant to this Easement Deed.
4. AMENDMENTS (DES19.1 S)
No alteration or variation of the terms of this Easement Deed shall be valid unless made in writing
and signed by the Parties, and no oral understanding or agreement not incorporated herein shall be
binding on any of the Parties. Any amendment or cancellation of this Easement Deed shall be
recorded in the Official Records of the County of Orange.
5. AUTHORITY (DES20.1 S)
The Parties to this Easement Deed represent and warrant that this Easement Deed has been duly
authorized and executed and constitutes the legally binding obligation of their respective organization
or entity, enforceable in accordance with its terms.
6. NOTICE (DES11.1 S)
All notices, documents, correspondence, and communications concerning this Easement Deed shall
be addressed as set forth in this paragraph, or as the parties may hereafter designate by written notice,
and shall be sent through the United States mail, duly registered or certified with postage prepaid.
Any such mailing shall be deemed served or delivered twenty -four (24) hours after mailing. Each
Party may change the address for notices by giving the other party at least ten (10) calendar days
prior written notice of the new address.
Notwithstanding the above, DISTRICT may also provide notices, documents, correspondence, or
such other communications to GRANTOR by personal delivery, regular mail, or facsimile and, so
given, shall be deemed to have been given upon receipt if provided by personal delivery or facsimile,
or forty-eight (48) hours after mailing if provided by regular mail.
If to GRANTOR: City of Tustin
c/o Director, Public Works Department
300 Centennial Way
Tustin, CA 92780
Phone (714) 573 -3150
Facsimile No. (714) 734 -8991
If to DISTRICT: Orange County Flood Control District
c/o Director, OC Public Works
P. O. Box 4048
RE: Barranca Channel (1709) Access Easement
Santa Ana, CA 92702 -4048
Facsimile No. (714) 834 -2395
Barranca Access Easement 3 5.09.2013 (DIR)
Date:
ATTEST:
Date:
APPROVED AS TO FORM:
Date:
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
EXHIBIT D
GRANTOR
CITY OF TUSTIN,
a municipal corporation of the State of California
M
M
Jeffrey C. Parker
City Manager
Jeffrey C. Parker
City Clerk
David E. Kendig
City Attorney
ACKNOWLEDGMENT
On 20 _ before me, ;
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Banana Access Easement 4 5.09.2013 (DIR)
Approved as to Form
Office of the County Counsel
Orange County, California
Lo
Deputy
Date:
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
EXHIBIT D
DISTRICT
ORANGE COUNTY FLOOD CONTROL
DISTRICT
0
Shane Silsby, P.E., Director
OC Public Works
Orange County, California
Per Minute Order
ACKNOWLEDGMENT
On , 20 _ before me,
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the same in
his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Barranca Access Easement 5 5.09.2013 (DIR)
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
February 17, 2014
EXHIBIT "A" JN 134065
Page 1 of 3
LEGAL DESCRIPTION
O.C.F.C.D. FACILITY NO. F09
PARCEL 202
That certain parcel of land situated in the City of Tustin, County of Orange, State of California,
being that certain portions of Lots "H ", "MM ", and "FF" of Tract No. 17144 as shown on a map
thereof filed in Book 906, Pages 5 through 14 of Miscellaneous Maps in the Office of the County
Recorder of said Orange County, described as follows:
COMMENCING at the centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on said Tract No. 17144; thence along said centerline of Barranca Parkway
South 49 °19'41" East 1094.08 feet; thence North 40 140119" East 470.00 feet to the most easterly
corner of Lot 5 as shown on said Tract No. 17144 and the TRUE POINT OF BEGINNING;
thence along the general southerly line of said Lot "H" and northwesterly line of said Lot `LL"
and southwesterly and northwesterly lines of said Lot "MM" and general northwesterly lines of
said Lot "H" and Lot `FF" through the following courses: North 49 °19'41" West 301.03 feet;
thence South 40 °40'19" West 360.00 feet; thence North 49 °19'41" West 716.14 feet; thence
North 40 037'53" East 316.95 feet; thence leaving said general northwesterly line of Lot "H"
South 45 °29'25" East 135.28 feet; thence South 44 °30'35" West 50.00 feet; thence
South 45 °08'55" West 13.45 feet to the beginning of a tangent curve concave easterly and having
a radius of 117.50 feet; thence along said curve southerly and southeasterly 209.22 feet through a
central angle of 102 °01'19" to a point of reverse curvature with a curve concave southwesterly
and having a radius of 593.00 feet, a radial he of said curve from said point bears
South 33 °07'36" West; thence along said curve southeasterly 297.65 feet through central angle of
28 °45'31" to a point of reverse curvature with a curve concave northeasterly and having a radius
of 16.00 feet, a radial line of said curve from said point bears North 61'53'07" East; thence along
said curve southeasterly 17.33 feet through central angle of 62 °02'47" to a point of compound
curvature with a curve concave northwesterly and having a radius of 242.00 feet, a radial line of
said curves from said point bears North 00 °09'40" West; thence along said curve easterly 106.23
feet through a central angle of 25 °09'04" to a point of compound curvature with a curve concave
northwesterly and having a radius of 300.00 feet, a radial line of said curves from said point
bears North 25 °18'44" West; thence along said curve northeasterly 91.91 feet through a central
angle of 17033'15 "; thence non - tangent from said curve North 37 °26'01" East 73.12 feet to the
beginning of a tangent curve concave southerly and having a radius of 70.50 feet; thence along
said curve northeasterly, easterly, and southeasterly 114.73 feet through a central angle of
93 °14'18 "; thence tangent from said curve South 49 °19'41" East 292.41 feet to said general
RBF Consulting February 17, 2014
O.C.F.C.D. Facility No. F09 JN 134065
Page 2 of 3
Exhibit "A"
southerly line of "Lot H "; thence along said general southerly line South 40 °40'19" West 47.14
feet to the TRUE POINT OF BEGINNING.
CONTAINING: 3.303 Acres more or less.
PARCEL 203
That certain parcel of land situated in the City of Tustin, County of Orange, State of California,
being that portion of Lot "CC" of Tract No. 17144 as shown on a map thereof filed in Book 906,
Pages 5 through 14 of Miscellaneous Maps in the Office of the County Recorder of said Orange
County, lying within a strip of land 14.00 feet wide, the northwesterly line of which is described
as follows:
COMMENCING at the centerline intersection of Barranca Parkway and Red Hill Avenue as
shown on said Tract No. 17144; thence along said centerline of Barranca Parkway
South 49 °19'41" East 1094.08 feet; thence North 40 °40'19" East 1 10.00 feet to the most westerly
corner of said Lot "CC" and the TRUE POINT OF BEGINNING; thence along the
northwesterly line of said Lot "CC" North 40 040'19" East 407.14 feet.
Said strip of land shall be lengthened or shortened so as to terminate southwesterly in the
southwesterly line of said Lot "CC ".
CONTAINING: 5700 Square Feet.
PARCEL 204
That certain parcel of land situated in the City of Tustin, County of Orange, State of California,
being a portion of Lot "JJ" of Tract No. 17144 as shown on a map thereof filed in Book 906,
Pages 5 through 14 of Miscellaneous Maps in the Office of the County Recorder of said Orange
County, described as follows:
COMMENCING at the centerline intersection of Barranca Parkway and Armstrong Avenue as
shown on said Tract No. 17144; thence along the centerline of said Armstrong Avenue
North 40 °40'20" East 110.00 feet to the southwesterly boundary line of said Tract No. 17144;
thence along said southwesterly boundary line North 49 °19'40" West 60.00 feet to the most
southerly corner of said Lot "JJ" and the TRUE POINT OF BEGINNING; thence continuing
along said southwesterly boundary line and southwesterly line of said Lot "JJ"
North 49°(9'4(" West 101.45 feet; thence North 40 °39'48" East 20.00 feet to the northeasterly
line of said Lot "JJ'; thence along said easterly line of Lot "JJ" South 49 °19'41" East 101.45 feet
RBF Consulting February 17, 2014
O.C.F.C.D. Facility No. F09 JN 134065
P
Exhibit "A" age 3 of 3
to the most easterly corner of said Lot "JJ "; thence along the southeasterly line of said Lot "JJ"
South 40 °40'20" West 20.00 feet to the TRUE POINT OF BEGINNING.
CONTAINING: 2029 Square Feet
SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of Record.
EXHIBIT "B" attached and by this reference made a part hereof.
1
Kurt R. Troxell, L.S. 7854
2/20/2014
Date
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KURT R.
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TRACT ,NO. 17144
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SKETCH TO ACCOMPANY A
LEGAL DESCRIPTION FOR
O.C.F.C.D. FACILITY NO. F09
PARCEL 203
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CITY OF SANTA ANA
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SKETCH TO ACCOWANYA
LEM DESCRIP" FOR
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PARCEL 204
WITHIN LOT 11 TR 17144
CONTAINING: 2029 SQUARE FEET
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EXHIBIT D
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the within deed or grant to the
ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, is hereby
accepted by the undersigned officer or agent on behalf of the Board of Supervisors of Orange
County, California, acting as the governing board of the ORANGE COUNTY FLOOD CONTROL
DISTRICT, pursuant to authority conferred by minute order dated of the said Board
of Supervisors, and the ORANGE COUNTY FLOOD CONTROL DISTRICT consents to
recordation thereof by its duly authorized officer.
Dated:
Approved as to Form
Office of the County Counsel
Orange County, California
By: Date:
Deputy
ORANGE COUNTY FLOOD CONTROL
DISTRICT
Un
Shane Silsby, P.E., Director
OC Public Works
Per Minute Order dated
Barranca Access Easement 6 5.09.2013 (DIR)
EXHIBIT E
Title Exceptions
The Easement Amendment and Access Easement are to be conveyed to DISTRICT free
and clear from all liens, encumbrances, taxes, assessments, leases (recorded or
unrecorded), covenants, conditions, restrictions, reservations, rights and easements except
the exceptions listed below as itemized in that certain First American Title Company
Preliminary Title Report No. NHSC- 44235715(tc) dated 1/27/2014, an any title
exceptions not required to be cleared pursuant to Section 4 (F).
Any installment of general and special county and city taxes, if any, allocable to a
period subsequent to the time title is vested in DISTRICT.
The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section
53311 of the California Government Code for Community Facilities District No.
13 -01, as disclosed by Notice of Special Tax Lien recorded May 16, 2013 as
Instrument No. 2013000296640 of Official Records.
4. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code.
6. The terms and provisions contained in the document entitled "Short Form Notice
of Agreement" recorded May 14, 2002 as Instrument No. 20020404589 of
Official Records.
7. Easements, Covenants and Conditions contained in the deed from The United
States of America, as Grantor, to the City of Tustin, California, as Grantee,
recorded May 14, 2002 as Instrument No. 20020404594 of Official Records.
Document re- recorded April 9, 2003 as Instrument No. 2003000392129 of
Official Records.
8. The fact that the land lies within the boundaries of the MCAS Tustin
Redevelopment Project Area, as disclosed by the document recorded
June 18, 2003 as Instrument No. 2003000710836 of Official Records
9. Easements, Covenants and Conditions contained in the deed from Tustin Public
Financial Authority, a joint powers authority organized and existing under the
laws of the State of California, as Grantor, to City of Tustin, a California
municipal corporation, as Grantee, recorded October 4, 2006 as Instrument No.
2006000661919 of Official Records. The effect of a document entitled
"Reversion Quitclaim Deed ", recorded August 5, 2010 as Instrument No.
2010000374995 of Official Records.
12. Abutter's rights of ingress and egress to or from Barranca Parkway and Red Hill
Avenue have been dedicated or relinquished on the filed Map.
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EXHIBIT F
Project: Barranca Channel (F09) - Armstrong Avenue Crossing Agreement No. D02 -119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
authorized designee, hereinafter referred to as "DIRECTOR," shall be DISTRICT'S
representative in all matters pertaining to this AGREEMENT.
SECTION 4. TERM
4.1. The term of this AGREEMENT shall commence upon execution by CITY and DISTRICT'S
Board of Supervisors, and shall terminate, with the exception of Sections 5.2. and 5.3.3.4.
below, upon completion and acceptance of all CHANNEL IMPROVEMENTS by
DIRECTOR in writing, based on the determination that the CHANNEL IMPROVEMENTS
have been satisfactorily completed per the approved BARRANCA CHANNEL PLANS and
the PETERS CANYON CHANNEL PLANS, except as noted in Section 4.2, below.
4.2. Those sections of this AGREEMENT that pertain to legal, policy and /or administrative
matters including the sections discussing "Indemnification; "Hazardous or Toxic Materials,"
"Successors and Assigns," "Attorney's Fees /Costs" and "Governing Law and Venue,"
(Sections numbered 12, 13, 15, 18 and 24 respectively), shall succeed the termination date
initiated by DIRECTOR'S written concurrence, as specified in Section 4.1, above.
SECTION 5. CITY'S RESPONSIBILITIES
5.1. BARRANCA CHANNEL IMPROVEMENTS
HMM. Barranca channel.Mar3
5.1.1. Design and Construction. Design and construct the BARRANCA CHANNEL
IMPROVEMENTS at no cost to DISTRICT. Construction shall not begin until
receiving the necessary encroachment permit(s) through PFRD /Public
Works /Engineering & Permit Services /County Property Permits, and paying all
required permit application and construction inspection fees. The BARRANCA
CHANNEL IMPROVEMENTS are being designed to convey the 100 -year design
discharge for Barranca Channel with the assumption that the future Barranca
Channel will be a fully enclosed boxed channel. However, should the Barranca
Channel between Redhill Avenue and the Barranca Parkway crossing be
constructed in the future, different than the CITY'S assumption of a fully enclosed
Page 5
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EXHIBIT F
Project: Barranca Channel (FO9) — Armstrong Avenue Crossing Agreement No. D02 -119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
boxed channel, and the determination made that the BARRANCA CHANNEL
IMPROVEMENTS are hydraulically deficient and incompatible with approved future
improvements of Barranca Channel, the CITY shall be responsible for
reconstruction or modification of the BARRANCA CHANNEL IMPROVEMENTS at
HMM. Barranca channel.Mar3
its sole cost. The CITY may assign design and construction responsibilities and
costs for BARRANCA CHANNEL IMPROVEMENTS to a private development
entity or other public entity other than the CITY, at its discretion. No such
assignment by CITY shall operate to release the CITY from any of its obligations
under this Agreement without the prior written approval of DISTRICT, which
approval DISTRICT may withhold or grant In the exercise of its sole discretion. The
CITY, its representatives or assignees shall be responsible to:
5.1.1.1. Administer and obtain all government agency approvals for said
BARRANCA CHANNEL IMPROVEMENTS, including, but not limited to the
selection of contractors, management of contractors' work, administration
of contractors for compliance with the requirements of all applicable local
building codes and other regulations.
5.1.1.2. Obtain prior to construction date, DISTRICT'S advance written approval of
any regulatory permits, including but not limited to permits from the U. S.
Army Corps of Engineers (COE) and California State Department of Fish
and Game (CSDF &G) or other agencies, which obligate the DISTRICT with
special maintenance requirements.
5.1.1.3. Appoint a representative to function as CITY'S resident engineer, to
coordinate all aspects of construction of BARRANCA CHANNEL
IMPROVEMENTS with DISTRICT.
5.1.1.4. Provide all necessary preliminary engineering, identification and location of
utilities, and construction engineering services for BARRANCA CHANNEL
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EXHIBIT F
Project: Barranca Channel (F09) - Armstrong Avenue Crossing Agreement No. D02 -119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon elkeway
IMPROVEMENTS, at no cost to DISTRICT.
5.1.1.5. Construct BARRANCA CHANNEL IMPROVEMENTS in accordance with
approved plans and specifications, in conformance with all terns and
conditions of the approved encroachment permit(s), and to the written
satisfaction of DISTRICT.
5.1.1.6. Provide DISTRICT, its agents, employees and invitees, with access to
BARRANCA CHANNEL IMPROVEMENT areas, to perform their
responsibilities pursuant to this AGREEMENT.
5.1.1.7. Obtain DISTRICT'S advance written approval of proposed changes to
approved BARRANCA CHANNEL PLANS, prior to implementing such
changes.
5.1.1.8. Furnish one (1) set of mylar copies of the approved "AS- Built" construction
drawings for the BARRANCA CHANNEL IMPROVEMENTS to DISTRICT.
5.2.
HMM. Barranca channel.Mar3
5.1.2. Right-of-Way. Plans for BARRANCA CHANNEL IMPROVEMENTS currently do
not necessitate any additional right -of -way dedication to the DISTRICT given that
all BARRANCA CHANNEL IMPROVEMENTS are proposed within the existing
Barranca Channel right -of -way easement. In the event of any unforeseen additional
right -of -way needs, the CITY or its assignees shall at no cost to the DISTRICT,
dedicate, or cause the dedication of additional right -of -way necessary for the
BARRANCA CHANNEL improvements to the DISTRICT in a form meeting the
written approval of the DISTRICT.
5.1.3. Hazardous Material Assessments. Obtain, or through conditions of development
approval cause others to obtain, DISTRICT'S approval of a Hazardous Materials
Assessment of any additional TUSTIN LEGACY right-of-way that is to be conveyed
to DISTRICT, prior to DISTRICTS acceptance of such right -of -way.
FUTURE BARRANCA CHANNEL IMPROVEMENTS
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EXHIBIT F
Project: Barranca Channel (F09)— Armstrong Avenue Crossing Agreement NO. D02 -119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
5.2.1. Barranca Channel Reconstruction Responsibilities. Following the completion of
HMM. Barranca channel.Mar3
BARRANCA CHANNEL IMPROVEMENTS, the CITY agrees to correct at no cast
to DISTRICT, any portion of the BARRANCA CHANNEL IMPROVEMENTS found
in the future, to be deficient in or incompatible with providing a 100 -year level of
protection due to inconsistencies between the CITY'S design assumptions made in
constructing future improvements, and more detailed drainage studies that are
completed regarding any future improvements to the Barranca Channel (between
Redhill Avenue and the Barranca Parkway crossing). DISTRICT'S review and
written approval of any subsequent efforts to correct such a deficiency, shall be
obtained via the permit application process through the PFRD /Public
Works/Engineering & Permit Services /County Property Permits. Any proposed
reconstruction of the BARRANCA CHANNEL IMPROVEMENTS as part of the
future improvement may be done in coordination with the ultimate improvements of
the Barranca Channel. Nothing shall preclude the CITY from assigning this
obligation to another public or private entity other than the COUNTY or DISTRICT.
No such assignment by CITY shall operate to release the CITY from any of its
obligations under this Agreement without the prior written approval of DISTRICT,
which approval DISTRICT may withhold or grant in the exercise of its sole
discretion.
5.2.2. Design and Construction of Ultimate Barranca Channel Improvements.
Design and construct ultimate Barranca Channel improvements between
Redhill Avenue and the Barranca Parkway crossing, at no cost to DISTRICT,
either through the City of Tustin, Tustin Community Redevelopment Agency or
conditions of development approval within the TUSTIN LEGACY after receiving
DISTRICT'S written approval for any proposed improvements and any regulatory
permits, including but not limited to permits from the COE and CSDF &G or other
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EXHIBIT F
Project: Barran Channel (F09)— Armstrong Avenue Crossing Agreement No. D02 -119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
agencies, which obligate the DISTRICT with special maintenance requirements,
provided however that the CITY shall not be responsible for any construction of
ultimate Barranca Channel improvements necessary for any Barranca Parkway
roadway widening that is proposed by the City of Irvine and/or the City of Santa
Ana.
5.2.3. Rfghtof -way for Ultimate Barranca Channel Improvements. In the event that
additional right -of -way is needed to accommodate future ultimate Barranca
Channel improvements, the CITY or its assignees shall at no cost to the
DISTRICT, dedicate, or cause the dedication of such additional right -of -way to the
DISTRICT in a form meeting the written approval of the DIRECTOR.
5.3 PETERS CANYON CHANNEL IMPROVEMENTS
HMM. Barranca channel.Mar3
5.3.1 Design and Construction. Design and construct PETERS CANYON CHANNEL
IMPROVEMENTS and improvements for the Peters Canyon Bikeway, a regional
Class I "paved off -road bikeway" adjacent to Parcels 33 and 34, at no cost to
DISTRICT, either through the City of Tustin, Tustin Community Redevelopment
Agency or conditions of development approval within TUSTIN LEGACY. COUNTY
reserves the right to request CITY to include design and construction of a regional
riding and hiking trail at COUNTY's full expense in CITY project. Construction shall
not begin until receiving the necessary encroachment permit(s) through
PFRD /Public Works /Engineering and Permit Services/County Property Permits,
and paying all required permit application and construction inspection fees.
PETERS CANYON CHANNEL IMPROVEMENTS shall be designed to convey the
100 year design discharge for Peters Canyon Channel with the assumption that the
design and construction will be located within the right -of -way limits defined in
Section 2.2. However, in conjunction with the assumed right -of -way limits, the
CITY agrees that it will be responsible for any reconstruction, modification or added
Page 9
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