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HomeMy WebLinkAbout09 AGMNT OC FLOOD CTRL 02-18-03AGENDA REPORT MEETING DATE: FEBRUARY 18, 2003 NO. 9 02-18-03 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION & REDEVEL~)PMENT AGENCY SUBJECT: COOPERATIVE AGREEMENT D02-119 WITH THE ORANGE COUNTY FLOOD CONTROL DISTRICT FOR BARRANCA CHANNEL~F09) AND PETERS CANYON FLOOD CONTROL CHANNEL (F06) IMPROVEMENTS AT TUSTIN LEGACY SUMMARY Cooperative Agreement D02-119 establishes the terms and conditions under which certain Barranca Channel and Peters Canyon Channel improvements will be scheduled, engineered, financed, constructed, operated and maintained. RECOMMENDATION It is recommended that the City Council authorize the execution of Cooperative Agreement D02- 119 with the Orange County Flood Control District for the construction of certain improvements to the Barranca Channel (F09) and Peters Canyon Channel (F06) at Tustin Legacy, and authorize the City Manager to make minor changes as may be necessary subject to City Attorney and County Counsel approval. FISCAL IMPACT None at this time. It is anticipated that the design and construction of the improvements will be assigned as a developer responsibility and ultimately financed through an assessment district or a Community Facilities District. DISCUSSION The Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Disposal and Reuse of the former Marine Corps Air Station Tustin (Tustin Legacy) contained implementation measures that required preparation of drainage studies for the Tustin Legacy site to justify the diversion of run-off and necessary sizing and construction of certain infrastructure necessary to support the planned development of the reuse area, including improvements to regional flood control channels to accommodate a 100 year storm. As a result of the settlement with the Santa Ana Unified School District and the time sensitive financial obligations, the City has requested the Orange County Flood Control District's (OCFCD's) cooperation and authorization to proceed with subdivision map approval and grading for new development on Parcels 33 and 34 (Phase land II John Laing Homes residential sites) as shown on the Specific Plan prior to completion of the required FEIS/FEIR drainage studies. The City also requested that OCFCD permit the deferral of construction of any necessary Peter's Canyon Channel improvements immediately adjacent to the proposed development on Parcels 33 and 34 until completion of the Cooperative Agreement D02-119 with the Orange County Flood Control District for Barranca Channel (F09) and Peters Canyon Flood Control (F06) Improvements at Tustin Legacy February 18, 2003 Page 2 necessary drainage studies for the Tustin Legacy project and the development of final engineering and financing plans. Additionally, the City has recently completed the design for Tustin Legacy Phase I improvements including the extension of Valencia Avenue to the West Connector and the construction of Armstrong Avenue from Valencia Avenue south to Barranca Parkway. The construction of Armstrong Avenue will require the design and construction of a new overcrossing at the Barranca Channel along with a new storm drain entry into the Channel f~r the Armstrong Avenue storm drain. The subject Cooperative Agreement with the OCFCD would authorize the construction of these specific improvements which require OCFCD approval (Barranca Channel Improvements). In the event, the installation of these improvements require future alteration to the Barranca Channel, the Cooperative Agreement requires the City (or its assignee) to make these channel alterations and to dedicate any necessary right-of-way area. In summary, Cooperative Agreement D02-119 establishes the terms and conditions under which certain Barranca Channel Improvements and Peters Canyon Improvements will be scheduled, engineered, financed, constructed, operated and maintained. The Agreement specifies that the City may issue grading and building permits for development on Parcels 33 and 34 prior to completion of any drainage studies or Run-off Management Plan for Tustin Legacy and the design and construction of the ultimate channel improvements. The City agrees to include the Peters Canyon Channel Improvements adjacent to Parcels 33 and 34 in the first phase of any assessment district or other infrastructure financing district established by the City. The Agreement requires the City or its assignees to design and construct the proposed improvements at no cost to the OCFCD; and the OCFCD to accept the completed improvement for ownership, operation and maintenance. Director of Public Works/City Engineer TDS:CS:ccg:Coop Agmt Flood Control Imp Tustin Legacy.doc Attachment: Cooperative Agreement D02-119 Christine A. Shingle,~ - Assistant City Man~i~Jer Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain And Peters Canyon Channel (F06) Cooperative Agreement D02-119 between City of Tustin and Orange County Flood Control District (02/10/03) PROJECT: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain And Peters Canyon Channel (F06) AGREEMENT NO. D02-119 TABLE OF CONTENTS SECTION PAGE NO , 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Purpose ................................................................................. 3 Description of Channel Improvements ............................................ 3 Project Coordination .................................................................. 4 Term ....................................................................................... 4 CITY'S Responsibilities ............................................................... 5 DISTRICT'S Responsibilities ........................................................ 12 Encroachment Permits ............................................................... 13 Conflict with Existing Public and/or Private Utilities ........................... 14 Notices ................................................................................... 14 Federal and/or State Funding ...................................................... 15 Termination ............................................................................. 15 Indemnification ......................................................................... 15 Hazardous or Toxic Materials ...................................................... 16 Independent Contractor Status .................................................... 17 Successors and Assigns ............................................................ 17 Waiver of Rights ....................................................................... 18 Severability ............................................................................. 18 Attorney Fees/Costs ................................................................. 18 Exhibits .................................................................................. 18 Waiver and Interpretation ........................................................... 18 Authority ................................................................................. 19 Amendment(s) ......................................................................... 19 Entire Agreement ...................................................................... 19 Governing Law and Venue ........................................................... 19 City Signature Page ................................................................... 20 District Signature Page ............................................................... 21 EXHIBITS EXHIBIT A Location Map (02/1 O~O3) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 JOINT COOPERATIVE AGREEMENT This AGREEMENT is made and entered into this __ day of BY and BETWEEN AND ,2003, The City of Tustin, a municipal corporation, hereinafter referred to as "CITY," The 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 as "PARTIES." RECITALS WHEREAS, the CITY has prepared a MCAS Tustin Reuse Plan/Specific Plan ("Reuse/Specific Plan") and is in the process of preparing and implementing redevelopment plans for those portions of the Reuse/Specific Plan project area located within the CITY'S incorporated boundaries, hereinafter referred to as "TUSTIN LEGACY;" and WHEREAS, in accordance with the provisions of the National Environmental Policy Act ("NEPA") of 1969, as amended, and the California Environmental Quality Act ("CEQA"), the Department of the Navy and the CITY, have completed a Final Joint Environmental Impact Statement/Final Environmental Impact Report, hereinafter referred to as "FEIS/FEIR," for the disposal and reuse of the TUSTIN LEGACY. The CITY certified the FEIS/FEIR as complete on January 16, 2001. A Record of Decision ("NEPA ROD") regarding the disposal of property at TUSTIN LEGACY was issued by the Department of the Navy on March 2, 2001; and WHEREAS, the FEIS/FEIR identifies certain implementation measures to be required by the CITY as conditions for individual projects to support planned development within the TUSTIN LEGACY, and the provision of infrastructure (including but not limited to storm drains, regional channels, and retention basins, flood plain mitigation, etc.) necessary to support the planned development of the reuse plan area constructed; and WHEREAS, the FEIS/FEIR includes implementation measures that specify that drainage studies shall be prepared to justify diversions; to demonstrate that "the proposed drainage patterns would not result in increased 100-year peak discharges within and downstream of the project limits and would not worsen existing drainage conditions at storm drains, culverts, and other street crossings including regional flood control facilities;" to propose HMM. Barranca channel. Feb 7 Page 1 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing Agreement No. D02-1 '19 and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) appropriate mitigation for any increased runoff causing a worsened condition of any existing facilities within or downstream of the project limits; and to include implementation of appropriate interim or ultimate flood control infrastructure construction; and WHEREAS, a large portion of the TUSTIN LEGACY drains to DISTRICT'S Barranca Channel (F09) which is adjacent to the southerly boundary of the TUSTIN LEGACY, and Peters Canyon Channel (F06 traverses the easterly sportion of the TUSTIN LEGACY; and WHEREAS, the Santa Ana-Santa Fe Channel (Fl0) is an existing earthen and rock-lined channel and is located along the northerly and northeasterly portion of the TUSTIN LEGACY, and subsequently drains into Peters Canyon Channel; and WHEREAS, Barranca Channel and Peters Canyon Channel pass through both the Cities of Tustin and Irvine, and the Santa Ana-Santa Fe Channel passes through the City of Tustin, and all are currently deficient in their ability to convey their 100-year design discharges; and WHEREAS, the CITY desires to obtain DISTRICT approval for Valencia/Armstrong Avenue roadway and infrastructure improvements prior to its sale of any property at TUSTIN LEGACY to developers, and has applied for an encroachment permit from DISTRICT requesting permission to reconstruct the Armstrong Avenue crossing of Barranca Channel and to construct a new storm drain entry into Barranca Channel for the Armstrong Avenue Storm Drain (the proposed improvements shall hereinafter be referred to as "BARRANCA CHANNEL IMPROVEMENTS"); and WHEREAS, CITY also desires to obtain DISTRICT's authorization for the CITY to proceed with subdivision map approval and grading for new development on Parcels 33 and 34 as shown on the Reuse/Specific Plan prior to completion of comprehensive drainage studies for TUSTIN LEGACY and to defer construction of Peters Canyon Channel improvements along the side and immediately adjacent to proposed development on Parcels 33 and 34 ("PETERS CANYON CHANNEL IMPROVEMENTS"), until completion of drainage studies and completion of engineering design and financing of ultimate Peters Canyon Channel improvements; and WHEREAS, CITY desires to proceed with the BARRANCA CHANNEL IMPROVEMENTS, prior to completion of the drainage studies required by the FEIS/FEIR for the TUSTIN LEGACY; and HMM. Barranca channel. Feb 7 Page 2 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing Agreement No. D02-119 and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) WHEREAS, the BARRANCA CHANNEL IMPROVEMENTS and the PETERS CANYON CHANNEL IMPROVEMENTS shall hereinafter collectively be referred to as "CHANNEL IMPROVMENTS;" and WHEREAS, it is understood and agreed that any future improvements to the Santa Ana-Santa Fe Channel and any improvements to the remaining portion of Peters Canyon Channel adjacent to the TUSTIN LEGACY, will be addressed in a separate agreement; and WHEREAS, the FEIS/FEIR includes implementation measures that specify "interim flood control facilities may be considered for approval provided such facilities meet DISTRICT requirements;" and WHEREAS, this AGREEMENT is needed to address issues that would otherwise have been addressed in the drainage studies required by the FEIS/FEIR; and WHEREAS, it is mutually agreed and in the public's interest that DISTRICT and CITY cooperate in the planning, design, construction, operation and maintenance of certain improvements for protection from the effects of floods, and is therefore beneficial for the CITY and DISTRICT to outline each agency's respective responsibilities. NOW, THEREFORE THE PARTIES MUTUALLY AGREE AS FOLLOWS: SECTION 1. PURPOSE The purpose of this AGREEMENT is to establish the terms and conditions under which the CHANNEL IMPROVEMENTS, will be scheduled, engineered, financed, constructed, operated and maintained. SECTION 2. DESCRIPTION OF CHANNEL IMPROVEMENTS 2.1. BARRANCA CHANNEL IMPROVEMENTS shall consist of the reconstruction of the Armstrong Avenue crossing of Barranca Channel and construction of a new storm drain entry for the Armstrong Avenue Storm Drain into Barranca Channel. 2.2. PETERS CANYON CHANNEL IMPROVEMENTS shall consist of improvements parallel to the west side of Parcels 33 and 34 as shown on the Reuse/Specific Plan located within the City of Tustin, and within the limits of the existing Peters Canyon Channel right-of-way including an adjacent 40 foot proposed right-of-way currently owned by the Department of the Navy to the west of Parcel 33 and 34, and reserved for flood control purposes. HMM. Barranca channel. Feb 7 Page 3 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: SECTION 3. SECTION 4. Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 2.3. 2.4. Agreement No. D02-119 All CHANNEL IMPROVEMENTS shall conform to plans and specifications, hereinafter referred to as "BARRANCA CHANNELPLANS and PETERS CANYON CHANNEL PLANS," respectively. BARRANCA CHANNEL PLANS have been prepared by CITY and submitted to DISTRICT for approval and PETERS CANYON CHANNEL PLANS will be submitted by CITY or its assignee to DISTRICT for review and approval. All CHANNEL IMPROVEMENTS are located within CITY, and the site(s) of the CHANNEL IMPROVEMENTS are more specifically illustrated on Exhibit A, entitled "LOCATION MAP," attached hereto and by this reference, made a part hereof. PROJECT COORDINATION 3.1. 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. 3.2. DISTRICT'S Director of the Public Facilities and Resources Department (PFRD), or an authorized designee, hereinafter referred to as "DIRECTOR," shall be DISTRICT'S representative in all matters pertaining to this AGREEMENT. TERM 4.1. 4.2. 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. 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 HMM. Barranca channel. Feb 7 Page 4 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing Agreement No. D02-1'19 and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) initiated by DIRECTOR'S written concurrence, as specified in Section 4.1, above. SECTION 5. CITY'S RESPONSIBILITIES 5.1. BARRANCA CHANNEL IMPROVEMENTS 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 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 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. 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. HMM. Barranca channel. Feb 7 Page 5 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 5.1.2. 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 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 terms 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. 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 HMM. Barranca channel. Feb 7 Page 6 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 5.2. Agreement No. D02-119 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 DISTRICT'S acceptance of such right-of-way. FUTURE BARRANCA CHANNEL IMPROVEMENTS 5.2.1. Barranca Channel Reconstruction Responsibilities. Following the completion of BARRANCA CHANNEL IMPROVEMENTS, the CITY agrees to correct at no cost 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 of Orange (COUNTY) or DISTRICT. HMM. Barranca channel. Feb 7 Page 7 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 5.2.3. 5.3 Agreement No. D02-119 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 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. Right-of-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. PETERS CANYON CHANNEL IMPROVEMENTS 5.3.1 Design and Construction. Design and construct PETERS CANYON CHANNEL IMPROVEMENTS 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. 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 HMM. Barranca channel. Feb 7 Page 8 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 discharge for Peters Canyon Channel with the assumption that the design and construction will be located within the right-of-way limits defined in Section2.2. However, in conjunction with the assumed right-of-way limits, the CITY agrees that it will be responsible for any reconstruction, modification or added construction costs, including but not limited to mitigation costs, that may be necessary to accommodate PETERS CANYON CHANNEL IMPROVEMENTS within the defined right-of-way limits, at it sole cost, in order to ensure that ultimate PETERS CANYON CHANNEL IMPROVEMENTS at TUSTIN LEGACY are capable of conveying the 100 year design discharge for Peters Canyon Channel. The CITY may assign design and construction responsibilities and the cost of PETERS CANYON CHANNEL IMPROVEMENTS to a private development entity or other public entity other than the CITY at is discretion. The CITY, its representatives or assignees shall be responsible to: 5.3.1.1 Administer and obtain all government agency approvals for said PETERS CANYON 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. 5.3.1.2 Obtain, prior to construction date DISTRICT's advance written approval of any regulatory permits, including but not limited to permits from the COE and CSDF&G or other agencies, which obligate the DISTRICT to special maintenance requirements. 5.3.1.3 Appoint a representative to function as CITY's resident engineer, to coordinate all aspects of construction of PETERS CANYON CHANNEL IMPROVEMENTS with DISTRICT. 5.3.1.4 Provide all necessary preliminary engineering, identification and location of HMM. Barranca channel. Feb 7 Page 9 (02/10/03) · 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 5.3.2 5.3.3 utilities, and construction engineering services for PETERS CANYON CHANNEL IMPROVEMENTS at no cost to DISTRICT. 5.3.1.5 Construct PETERS CANYON CHANNEL IMPROVEMENTS in accordance with approved plans and specifications, in conformance with all terms and conditions of the approved encroachment permit(s) and to written satisfaction of DISTRICT. 5.3.1.6 Provide DISTRICT, its agents, employees and invitees, with access to PETERS CANYON CHANNEL IMPROVEMENT areas, to perform their responsibilities pursuant to this AGREEMENT. 5.3.1.7 Obtain DISTRICT's advance written approval of proposed changes to approved PETERS CANYON CHANNEL IMPROVEMENTS PLANS, prior to implementing such changes. 5.3.1.8 Furnish one (1) set of mylar copies of the approved "As-Built" construction drawings for the PETERS CANYON CHANNEL IMPROVEMENTS to DISTRICT. Right of Way. Where needed and at no cost to DISTRICT, dedicate, or cause the dedication of any additional right-of-way beyond DISTRICT'S existing easements and not exceeding the limits defined in Section 2.2. for PETERS CANYON CHANNEL IMPROVEMENTS to the DISTRICT in a form meeting the written approval of the DISTRICT. Timing. The design and construction of PETERS CANYON CHANNEL IMPROVEMENTS would proceed upon completion of the following: 5.3.3.1 Completion of a drainage study for TUSTIN LEGACY as described in Section 5.4. below. 5.3.3.2 Transfer of the 40 feet of additional proposed right-of-way for Peters Canyon Channel from the Department of the Navy to the CITY or HMM. Barranca channel. Feb 7 Page 10 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (FO9) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 5.4. Agreement No. D02-119 DISTRICT. 5.3.3.3 Commitment that it will include PETERS CANYON CHANNEL' IMPROVEMENTS adjacent to Parcel 33 and 34 in the first phase of any CITY established community facilities district or assessment district. 5.3.3.4. Excepting Parcels 33 or 34, CITY agrees that it will not issue grading or building permits for any new development at TUSTIN LEGACY until completion of the drainage study required in Section 5.4., and until a more detailed design, construction and financing implementation agreement for ultimate Peters Canyon Channel improvements not adjacent to Parcel 33 and 34 is entered into between the DISTRICT and CITY. 5.3.4. Drainage Studies, Per the FEIS/FEIR, CITY will require the developer of Parcels 33 and 34 to submit to and receive approval of a localized drainage study including diversions (i.e., off-site areas that drain onto and/or through each parcel), with justification and appropriate mitigation for any proposed diversion so that proposed drainage from Parcels 33 and 34 would not result in a significant adverse impact on the Peters Canyon Channel pending future completion of PETERS CANYON CHANNEL IMPROVEMENTS. Runoff Management Plan/Engineering Study: 5.4.1. Excepting Parcels 33 and 34, prior to any grading for any new development at TUSTIN LEGACY, prepare a drainage study or Runoff Management Plan/Engineering Study, hereinafter referred to as "RMP/ES," for TUSTIN LEGACY that will demonstrate that proposed diversions of flow or changes to existing drainage patterns will not result in (i) increasing 100-year peak discharges and (ii) worsening existing conditions of any storm drains, culverts, DISTRICT facilities, and street crossings; propose appropriate mitigation for worsened existing conditions within or downstream of TUSTIN LEGACY; and identify the ultimate HMM. Barranca channel. Feb 7 Page 11 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: SECTION 6. Barranca Channel (FO9) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 5.4.2. Agreement No. D02-119 Barranca Channel improvements and ultimate Peters Canyon Channel improvements adjacent to the TUSTIN LEGACY taking all regulatory permit conditions from the COE, the CSDF&G, or others into consideration, including mitigation measures, method of funding, construction phasing, and implementation triggering events and responsibilities. The RMP/ES shall also include an analysis of water quality impacts; best management practices (BMPs); TUSTIN LEGACY reuse effects on total maximum daily loads (TMDLs) that have been identified for the watershed, including but not limited to nutrients, sediment, etc.; and necessary mitigation measures. With the exception of Parcels 33 and 34, the RMP/ES shall be submitted to and approved by the DISTRICT'S Chief Engineer of PFRD, or an authorized designee, hereinafter referred to as "CHIEF ENGINEER," prior to any grading for any new development at TUSTIN LEGACY. DISTRICT'S RESPONSIBILITIES 6.1. ALL CHANNEL IMPROVEMENTS 6.1.1. 6.1.2. Permit Review. DISTRICT shall review and approve plans for all CHANNEL IMPROVEMENTS submitted by the CITY, its representatives or assigns via the permit application process and, if determined at the sole and absolute discretion of DIRECTOR, to be satisfactory and in conformance with DISTRICT practices, standards and criteria, provide encroachment permit approval. Construction Inspection. DISTRICT shall assign a qualified PFRD Construction Division Inspector or representative to all CHANNEL IMPROVEMENTS, whose function shall be to verify that construction of all CHANNEL IMPROVEMENTS within DISTRICT'S rights-of-way is accomplished in a good, workman-like manner and in accordance with the approved plans for all CHANNEL IMPROVEMENTS. The decisions of DISTRICT'S representative shall prevail on all work within, or HMM. Barranca channel. Feb 7 Page 12 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: SECTION 7. Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) 6.2. Agreement No. D02-1'19 affecting DISTRICT'S right-of-way. 6.'1.3. Maintenance and Operation. DISTRICT shall own and operate at DISTRICT'S cost the CITY (or its assignee)-constructed channel portions of the all CHANNEL IMPROVEMENTS, upon written concurrence by DIRECTOR that the improvements have been satisfactorily completed per the approved respective plans or future plans and specifications (approved in writing by DISTRICT), and any additional necessary rights-of-way for the CHANNEL IMPROVEMENTS have been dedicated and accepted by DISTRICT. PETERS CANYON CHANNEL IMPROVEMENTS ONLY 6.2.1. Right-of-way. DISTRICT agrees that right-of-way limits defined in Section 2.2 are acceptable to DISTRICT based on the fact that CITY acknowledges and agrees that it will be solely responsible for ensuring that the design and construction of the PETERS CANYON CHANNEL IMPROVEMENTS satisfactorily convey; 100 year storm flows; satisfy the terms of permits issued by COE and CDF&G; and meets all DISTRICT standards 6.2.2. Entitlements of Parcels 33 and 34. DISTRICT agrees that CITY may entitle final subdivision maps for Parcels 33 and 34 and that this AGREEMENT will ensure the requirement for the CITY, its representatives or assigns to identify, construct and finance certain subsequent flood control facilities 6.2.3. Review CITY'S RMPIES: DISTRICT'S CHIEF ENGINEER or appointed designee shall review CITY'S drainage plan or RMP/ES for the TUSTIN LEGACY at no cost to CITY and approve RMP/ES without undue delay when found acceptable to DISTRICT. ENCROACHMENT PERMITS Encroachment permits from the PFRD/County Property Permits which authorize CITY to commence work on property which lies within DISTRICT rights-of-way, or which affects DISTRICT HMM. Barranca channel. Feb 7 Page 13 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 facilities are required and shall be obtained by CITY prior to commencing any construction. SECTION 8. CONFLICT WITH EXISTING PUBLIC AND/OR PRIVATE UTILITIES If any existing public and/or private utilities conflict with construction of CHANNEL IMPROVEMENTS or violate DISTRICT'S encroachment policy, CITY shall, at no cost to DISTRICT, make all necessary arrangements with the owners of such utilities for their protection, relocation or removal in accordance with the policy and procedure for those utilities located within the limits of work providing for the improvements to DISTRICT rights-of-way. SECTION 9. NOTICES 9.1. Notices or other communications which may be required or provided under the terms of this AGREEMENT shall be given as follows: CITY: and Director Public Works Department City of Tustin 300 Centennial Way Tustin, CA 92780 Phone (714) 573-3150 Facsimile No. (714) 734-8991 Assistant City Manager City of Tustin 300 Centennial Way Tustin, CA 92780 Phone (714)573-3107 Facsimile No. (714) 838-1602 DISTRICT: Director Public Facilities and Resources Department (PFRD) County of Orange P. O. Box 4048 Santa Ana, CA 92702-4048 Phone (714) 834-5302 Facsimile No. (714) 834-2395 9.2. 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 receipt during normal business hours or, in the event of receipt after business hours, on the following HMM. Barranca channel. Feb 7 Page 14 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: SECTION 10. SECTION 11. SECTION 12. Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 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. 9.3. The PARTIES hereto may change the address to which notices are to be sent by giving notice of such change to the other PARTY. FEDERAL AND/OR STATE FUNDING Should any portion of CHANNEL IMPROVEMENTS be financed with federal funds or state gas tax funds, all applicable laws, regulations and policies relating to the use of such funds shall apply, notwithstanding other provisions of this AGREEMENT. TERMINATION 11.1. In the event that CITY is unable to proceed with CHANNEL IMPROVEMENTS in accordance with the terms and conditions described in this AGREEMENT, CITY may terminate this AGREEMENT with or without cause, upon delivery of thirty (30) days written notice to DISTRICT. CITY shall, however, remain responsible for payment of its share of the design and construction costs and expenses incurred for CHANNEL IMPROVEMENTS prior to effective date of termination and those CHANNEL IMPROVEMENT-related costs incurred by DISTRICT for which CITY is otherwise responsible to pay DISTRICT under the terms of this AGREEMENT. 11.2. Notice of Termination shall be in writing and shall state the date upon which such termination is effective. Notice shall be served as provided in Section 9, (NOTICES), above. INDEMNIFICATION 12.1. CITY hereby agrees to indemnify, defend (with counsel approved in writing by DISTRICT), and hold harmless DISTRICT and the COUNTY, their elected and appointed officials, officers, employees, agents (including its 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 HMM. Barranca channel. Feb 7 Page 15 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: SECTION 13. Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-'I 19 (including attorneys' fees and court costs) arising out of, based upon or relating to a breach of the AGREEMENT by CITY or the willful misconduct or negligent acts or omissions of CITY or the CITY INDEMNITEES (as defined in Section 12.2 below) 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 or omissions INDEMNITEES, or any of them. 12.2. of DISTRICT/COUNTY or DISTRICT/COUNTY Payment shall not be a condition precedent to recovery under the foregoing indemnity. 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, 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/COUNTY or the willful misconduct or negligent acts or omissions 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 or omissions of CITY or CITY INDEMNITEES, or any of them. Payment shall not be a condition precedent to recovery under the foregoing indemnity. HAZARDOUS OR TOXIC MATERIALS Nothing in this AGREEMENT is intended nor shall anything in this AGREEMENT be construed to HMM. Barranca channel. Feb 7 Page 16 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 transfer to DISTRICT or COUNTY or their successors or assigns or to relieve CITY or its successors or assigns or predecessors in title of any responsibility or liability 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 hazardous or toxic substances or materials (as such terms as those used in this sentence are defined by statute, ordinance, case law, governmental regulations or other provision 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 AGREEMENT. Notwithstanding the foregoing, CITY shall be and remain liable for any hazardous or toxic substances or materials which become located, because of CITY'S construction activities, upon, within, or under the real property interests described in this AGREEMENT. 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 real property interests transferred pursuant to this AGREEMENT. SECTION 14. INDEPENDENT CONTRACTOR STATUS This AGREEMENT is by and between CITY and DISTRICT, and is not intended and shall not be construed so as to create the relationship of agent, servant, employee, partnership, joint venture or association, as between CITY and DISTRICT. SECTION 15. SUCCESSORS AND ASSIGNS DISTRICT acknowledges CITY's stated intention to assign its obligations under this AGREEMENT to a future developer(s) at TUSTIN LEGACY. This AGREEMENT shall be binding on the successors and assigns of the PARTIES hereto, and shall not be assigned by any PARTY without the written consent of the other PARTY, which consent shall not be unreasonably withheld. Failure HMM. Barranca channel. Feb 7 Page 17 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (FO9) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 to obtain all PARTIES' required written approval of any proposed transfer or assignment will render this AGREEMENT terminated, as specified in Section 11 (TERMINATION), above. SECTION 16. WAIVER OF RIGHTS The failure by the 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 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 17. SEVERABILITY If any part of this AGREEMENT is held, determined or adjudicated to be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the fullest extent reasonably possible. SECTION 18. · ATTORNEY 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 attorney's fees. SECTION 19. EXHIBITS This AGREEMENT incorporates by this reference, the following exhibit, which is attached hereto and incorporated herein: 19.1. Exhibit A - Location Map SECTION 20. WAIVER AND INTERPRETATION Titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, 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 a PARTY because that PARTY or its legal representative drafted such provision. HMM. Barranca channel. Feb 7 Page 18 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) SECTION 21. AUTHORITY SECTION 22. SECTION 23. SECTION 24. Agreement No. D02-119 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. 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. ENTIRE AGREEMENT This document sets forth the entire AGREEMENT between CITY and DISTRICT, and may be modified only by further written amendment between the PARTIES hereto, in accordance with Section 22 (AMENDMENTS), above. GOVERNING LAW AND VENUE The PARTIES hereto agree that this AGREEMENT 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 AGREEMENT, 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. HMM. Barranca channel. Feb 7 Page 19 (02/10/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (FO9) -Armstrong Avenue Crossing and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) Agreement No. D02-119 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 BY: William A. Huston City Manager ATTEST: Pamela Stoker City Clerk APPROVED AS TO FORM: Date Lois Jeffrey Date City Attorney HMM. Barranca channel. Feb 7 Page 20 (02/11/03) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Project: Barranca Channel (F09) -Armstrong Avenue Crossing Agreement No. D02-119 and Armstrong Avenue Storm Drain and Peters Canyon Channel (F06) IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly authorized representatives as of the date set forth above. ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic DATE: BY: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD Chair of the Board of Supervisors of the Orange County Flood Control District of Orange County, California APPROVED AS TO FORM: LAURENCE M. WATSON, COUNTY COUNSEL Darlene J. Bloom Clerk of the Board of Supervisors of the Orange County Flood Control District of Orange County, California Attachments: Exhibit A - Location Map BY: Deputy Date HMM. Barranca channel. Feb 7 Page 21 (02/10/03) ® © [i: :II ., 3AV 'OH H...~Xl¥1:J NI,,ISf'U. 0 EXHIBIT "A'