Agreement MA-080-23011516
1 COOPERATIVE AGREEMENT BETWEEN ORANGE COUNTY FLOOD CONTROL
DISTRICT AND CITY OF HUNTINGTON BEACH FOR FUNDING,
CONSTRUCTION, AND MAINTENANCE OF THE EAST GARDEN GROVE- WINTERSBURG CHANNEL (C05) BRIDGES AT WARNER AVENUE,
SPRINGDALE STREET AND EDWARDS STREET IMPROVEMENTS PROJECT
This Cooperative Agreement (“Agreement”) is made and entered in to this _________day of __________________ 2023 (“Agreement”), by and between the OR ANGE COUNTY FLOOD CONTROL DISTRICT (“DISTRICT”), a body corporate and polit ic, and the CITY OF HUNTINGTON BEACH (“CITY”) , a municipal corporation in t he State of California. The DISTRICT and CITY shall sometimes be referred to separately as a “PARTY” and collectively as the “PARTIES”.
RECITALS
A. In April 2023, the DISTRICT com pleted flood control improvement s along a certain segment of DISTRICT’s reg ional flood facility commonly referred to as East Garden Grove-Wintersburg C hannel, Facility Number C05 (“CH ANNEL”).
The completed improvements incl uded CHANNEL widening from upstr eam of Warner Avenue to 1,200 feet downstream of Goldenwest Street to increase the channel capacity and fortify the levees, as shown on Exhibit A, which is attached to and made part of this Agreement.
B. The DISTRICT has proactively progr ammed a series of flood contr ol improvement projects from Pacific Coast Highway to the San Dieg o Freeway, Interstate 405, that are integral with the United States Army C orps of Engineers’ Westminster Watershed Flood Risk M anagement Project which seeks to remove the surrounding Huntington Beach area out of the existing floodplain.
C. The completed CHANNEL improvements excluded the three (3) CITY- owned and maintained bridge crossings at Warner Avenue, Springdale St reet and Edwards Street (“BRIDGES”), as additional coordination and tech nical studies with the City were needed for flood control improvements to these BRIDGES.
D. The DISTRICT identified that t he BRIDGES do not meet Federal Em ergency Management Agency freeboard requi rements and therefore require flood walls.
The proposed Project that is the subject of this Agreement cons ists of installing flood walls on both the upstream and downstream ends of the BRI DGES and replacing the superstructures to be compatible with the recentl y constructed CHANNEL improvements to provide 1 % annual chance of exceedance flood protection.
E. The BRIDGES are structurally in good condition according to Cal trans Bridge Inspection Reports and technical studies performed by DISTRICT’ s Project Engineer. As such, the proposed Project is addressing only the hydraulic deficiencies.
Agreement MA-080-23011516
2 F. DISTRICT has prepared the Plans, Specifications, and Estimate ( PS&E) for the Project and the CITY has proactively reviewed the PS&E during the development stage. The PS&E is substantially complete.
G. The CITY supports the Project and the DISTRICT shall obtain app roval of the PS&E prior to any work proposed to be made in accordance with C alifornia Public Contract Code 21020.
H. The CITY desires to cooperate with the DISTRICT in implementing the Project and maintaining ownership and ma intenance of the BRIDGES upon P roject completion.
I. The CITY has determined that the Project conforms to the City’s General Plan.
J. For the purpose of this Agreement, the Project shall encompass the construction phase and post-construction phase. The construction phase shall b e g i n w i t h issuance of a Notice to Proceed to the DISTRICT’s Contractor an d end with Project close-out when the DIST RICT completes construction of t he Project and files a Notice of Completion (NOC ). The post-construction of th e Project shall be the responsibility of the CITY after the filing of the NOC.
K. The PARTIES desire to outline their respective responsibilities with respect to the implementation of the Project and after the Project is completed.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals of f act, the mutual covenants and conditions containe d herein and other considerati on, the value and adequacy of which are hereby acknowledged, the PARTIES agree as follows:
1. Construction Phase Obligations
a. Project Engineer. DISTRICT is h ereby designated as Project Eng ineer (“ENGINEER”) and shall be respons ible for any approvals, permis sions, or notices required pursuant to the construction contract document s. Construction contract documents include, but a re not limited to, Project pla ns, specifications, and estimates (“PS&E”). The DIS TRICT shall be responsible for e xecuting and delivering all documents require d in connection with the constr uction of Project including as-built plans and drawings (“as-builts”).
b. Project Contractor. Upon written approval by the City of the f inal Project PS&E, the DISTRICT shall perform all administrative work required for negotiating and executing the construction contra c t w i t h t h e D I S T R I C T ’ s C o n t r a ctor Agreement MA-080-23011516
3 (“CONTRACTOR”). CONTRACTOR shall perform all work as required b y, and in strict accordance with, th e construction contract docume nts, which consists of removing the existing decks and barriers and replac ing them with voided precast girder units with a polyester overlay and new sidewalk and barrier that connects to the flood walls a t the Edwards Street Bridge, Springdale Street Bridge and Warner Avenue Bridge . The DISTRICT shall require CONTRACTOR to identify the CITY as an additional insured on CONTRACTOR’s required insuran ce policy(ies) with coverage to th e satisfaction of the CITY.
c. Project Construction. The DISTRICT shall be responsible for fun ding one hundred percent (100%) of the cons truction of all Project-relat ed funding obligations to construct the Project in accordance with the con struction contract documents.
d. Project Inspection. The DISTRICT shall have primary inspection responsibility to ensure the constructed Project and all components thereof confo rm to the approved PS&E. The DISTRICT shall require the CONTRACTOR to obt ain any and all necessary permits for the Project, including encroachme nt permits from the CITY. The DISTRICT will invite the CITY to attend the pre-c onstruction meeting prior to the start of the construction activity. The DI STRICT will hold the pre-construction conference a t t h e P r o j e c t s i t e o r n e a r b y field office. The DISTRICT will notify the CITY no less than fourteen calendar da ys prior to the start of construction. The CITY s hall provide a Project liaison ( “ C I T Y ENGINEER”) during construction to coordinate with DISTRICT representatives.
As required by the CITY encroachment permits, CITY shall regularly inspect the PROJECT within their jurisdictio n and communicate with the DIST ICT’s Project Manager and DISTRICT’s Construction Inspector. Furtherm ore, the CITY will be invited to and included in all construction progre ss/scheduling meetings conducted for the Project. Should the CITY deem any remedial work to be necessary, consistent with the construction contract documen ts, at the conclusion of construction for the Project or any component the reof the CITY shall notify the DISTRICT and sp ecifically describe the needed corrections and the proposed remedial work. All communications with the CONTRACTOR shall be through the DISTRICT, unless immediate action is necessary t o address safety related concerns.
e. Construction Contingencies. The DISTRICT shall review and appr ove any usage of CONTRACTOR or DISTRICT contingencies necessary for construct ion of the Project and in accordance with the construction contract do cuments.
However, should CITY request additional work beyond that approv ed by the PARTIES in the PS&E, and the additional work results in conting ency usage, CITY shall be responsible for f unding one hundred percent (100% ) of costs associated with the CITY-initiated contingency usage for work i n excess of that approved in the PS&E.
Agreement MA-080-23011516
4 f. Project Acceptance. Prior to the DISTRICT’s acceptance of Proj ect improvements and filing of a Notice of Completion, the CITY ENG INEER shall review and provide written approval of all Project work. The CITY ENGINEER’s written approval shall only be withheld for work not completed in accordance with the construction contract documents for the Project. The DISTRICT shall furnish the CITY with an electronic copy of reco rd drawings for the completed Project and an electronic copy of the filed N otice of Completion.
g. Warranties. DISTRICT shall requ ire CONTRACTOR to provide and as sign all warranties, maintenance manuals, and material safety data sheets for the Project.
Once received, the DISTRICT shall forward the received warranti es, maintenance manuals, and material safety data sheets to the CIT Y prior to filing NOC.
2. Post-Construction Phase Obligations
a. Notice of Completion. When the D ISTRICT completes the Project and issues a copy of the Notice of Completion to the CITY, the CITY’s post-c onstruction funding obligations shall begin, at which point the CITY shall assume ownership of the completed Project within CITY permitted easements and right-of-way.
b. Post-Construction Maintenance. Upon CITY ENGINEER’s written approval and DISTRICT’S acceptance of the Project, CITY shall assume ownersh ip, and operation and maintenance obligations for all Project improveme nts within CITY permitted easements and right-of-way.
3. Miscellaneous Obligations
a. Indemnification & Hold Harmless. The Parties shall indemnify, d efend with counsel approved in writing, save and hold each of their electe d officials, officers, directors, agents an d employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or expenses, of every type and description to which they may be subjected arising out of any a ct or omission of, their employees, representati ves, agents and independent co ntractors in connection with the implementation of the actions described in this Agreement.
The Parties’ duties and obligations under this paragraph shall survive termination or expiration of this Agreement.
b. Assignment. This Agreement shal l be binding upon and inure to t he benefit of the successors and assigns of the Parties. No assignment of eit her Party’s interest in this Agreement shall be made without the written consent of the other Party.
c. Entirety; Amendments. This Agreement contains the entire agreem ent between the Parties with respect to the matters provided for he rein. No Agreement MA-080-23011516
5 alteration or variation of the t erms of this Agreement 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 either of the Parties.
d. Severability. If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent juri sdiction, the remainder of this Agreement shall be given effect to the fullest extent possible.
e. Notices. Notices or other communications which may be required or provided under the terms of this Agreement shall be given as follows:
CITY: City of Huntington Beach
2000 Main Street
H u n t i n g t o n Beach, CA 92648
A t t e n t i o n : T o m H e r b e l , C i t y E n g i n e e r E m a i l : [email protected]
DISTRICT: Orange County Flood Control District
O C P u b l i c W o r k s
601 N. Ross Street
S a n t a A n a , C A 92701
Attention: Kevin Onuma, Chief Engineer
Email: [email protected]
All notices shall be in writing and deemed effective when deliv ered via email, in person, or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the 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 business day. An y notices, correspondence, reports and/or sta tements authorized or require d by this Agreement, addressed in any other fashion shall be deemed not given.
f. Attorney’s Fees. In any action or proceeding to enforce or i nterpret any provision of this Agreement, or w here any provision hereof is v alidly asserted as a defense, the Parties shall bear their own attorney’s fees, costs and expenses.
g. Governing Law & Venue. This Agreement has been negotiated an d executed in the State of California and shall be governed by and constru ed under the laws of the State of California. In the event of any legal action t o enforce or interpret this Agreement, the sole and exclusive venue shall be a court o f competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwith standing Code of Civil Procedure Section 394.
Agreement MA-080-23011516
6 h. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but al l of which together shall constitute a single instrument.
i. Termination. In the event DISTRICT or CITY defaults in the performance of any of their obligations under this Agreement or materially breaches any of the provisions of this Agreement, CITY and DIST RICT shall have the option to terminate this Agreement upon thirty (30) da ys’ prior written notice to the other Party. In the event CITY or DISTRIC T cures such default within the thirty (30) day notice period, CITY and DIST RICT’s election to terminate shall be deemed revoked and of no further f o r c e a n d effect as to that particular def ault. Any Party’s failure to en force this Agreement as to one instance of breach shall not constitute a w aiver of any Party’s ability to enforce this Agreement as to any future brea ches or noncompliance.
a. Availability of Funds. This Agree ment is subject to the availab ility of funds appropriated for this purpos e, and nothing herein shall b e construed as obligating the Parties to expend or as involving the Parties in any contract or other obligation for future payme nt of money in excess of appro priations authorized by law.
Agreement MA-080-23011516
7 I N W I T N E S S W H E R E O F , t h e P A R T I E S h a v e e x e c u t e d t h i s A g r e e m e n t t he day and year first above written.
C I T Y O F H U N T I N G T O N B E A C H ,
a m u n i c i p a l c o r p o r a t i o n
Date: _________________________ By: ________________________ ___________ Tony Strickland, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ By: __________________________ _________ Robin Estanislau, City Clerk Mic hael E. Gates, City Attorney
ORANGE COUNTY FLOOD CONTROL
DISTRICT, a body corporate and politic
Date: __________________________ By: _______________________ _____ Chairman, Board of Supervisors
County of Orange, California
SIGNED AND CERTIFIED THAT A APPROVED AS TO FORM:
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIR OF THE
BOARD OF SUPERVISORS PER GC §
25103, RESO. 79-1535
By: ______________________________ By: ______________________ _______ Robin Stieler Deputy County Counsel
Clerk of the Board of Supervisors County of Orange, California County of Orange, California