CONSTRUCTION AND MAINTENANCE AGREEMENT
BETWEEN
THE CITY OF HERMOSA BEACH
AND
THE CITY OF MANHATTAN BEACH
This Construction and Maintenance Agreement (“Agreement”) is made and entered into as of [________________], 2026 (“Effective Date”), by and between the City of Hermosa Beach (a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 1315 Valley Drive, Hermosa Beach, California 90254) (“Participating Agency”) and the City of Manhattan Beach (a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 1400 Highland Ave, Manhattan Beach, California 90266) (“Lead Agency”).
Participating Agency and Lead Agency are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties”.
RECITALS
A. Participating Agency is the owner of that certain public right-of-way which is generally located in Los Angeles County and more particularly described as set forth in Exhibit A (attached hereto and incorporated herein by reference); and
B. Lead Agency is the Lead Agency for the Santa Monica Bay Total Maximum Daily Load Trash Treatment Project, Project No. SD-279 and intends to construct a permanent subsurface public storm drain diversion structure and appurtenant facilities (“Facility”) as more specifically described in Lead Agency’s Improvement Plan (“Site Plan”) as set forth in Exhibit B (attached hereto and incorporated herein by reference); and
C. The Parties desire by this Agreement to formally establish the terms and conditions between Participating Agency and Lead Agency for the construction, installation, operation, maintenance, repair, replacement and removal the Facility in accordance with the Site Plan (“Work”) upon the terms and conditions set forth herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct, and are hereby incorporated herein by this reference.
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2. Construction and Encroachment Agreement. Participating Agency, for themselves and for their successors and assigns, hereby convey and grant to Lead Agency, its successors and assigns, an encroachment as described in Exhibit B (“Site Plan") and non-exclusive easement (the "Construction and Maintenance Agreement") over, under, in, along, across and upon the property described on the attached and incorporated in Exhibit A (the "Encroachment Area") for use in the construction and installation of the improvements and other construction purposes reasonably related to the construction of the improvements described in Exhibit B ("Site Plan"). Prior to commencement of the Construction and Maintenance Agreement, Lead Agency shall have access to the Encroachment Area during normal business hours to conduct all studies, tests, examinations and surveys necessary to design and construct the improvements.
3. Non-Exclusive Easement. The above-described Construction and Maintenance Agreement is to be used for the construction, installation, operation, maintenance, repair, replacement, and removal of the Facility. If Participating Agency, its officers, employees, contractors, consultants, or agents damage the Facility through negligent or willful acts or omissions, Participating Agency shall immediately notify the Lead Agency and promptly repair such damage or reimburse Lead Agency for the reasonable cost of repair or replacement.
4. Relocation. Participating Agency shall provide Lead Agency with reasonable advance written notice prior to performing work within or adjacent to the Easement Area that may impact the Facility and shall coordinate such work with Lead Agency whenever reasonably practicable. Prior to undertaking any capital improvement project that may require relocation, modification, or removal of the Facility, Participating Agency shall consult and coordinate with Lead Agency in good faith to evaluate alternatives that avoid or minimize impacts to the Facility.
5. Term; Abandonment. This Agreement shall take effect on the Effective Date and shall remain in effect for so long as the Facility remains within the Encroachment Area, unless terminated by written agreement of the Parties or removal of the Facility. Notwithstanding anything in this Agreement to the contrary, the Encroachment Area shall be deemed abandoned in the event Lead Agency voluntarily ceases to use the Encroachment Area for a period of more than five (5) years. Upon abandonment, this Agreement shall be terminated; and the Parties shall execute and record such documents as may be reasonably necessary to memorialize the termination of this Agreement.
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6. Insurance. Lead Agency shall maintain a policy of comprehensive general liability insurance with a limit of liability of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate. The policies shall be in a form acceptable to Participating Agency, be primary insurance, and name Participating Agency (and its officials, officers, employees, agents, and volunteers) as an additional insured using a form acceptable to Participating Agency. Upon request by Participating Agency, Lead Agency shall provide Participating Agency with a certificate of insurance evidencing Lead Agency’s coverage in compliance herewith (including copies of the insurance policies if requested by Participating Agency). Participating Agency may from time to time (in its commercially reasonable judgment) increase the amount of coverage or otherwise modify the foregoing insurance requirements upon written notice to Lead Agency.
a. Qualifying Insurers. All policies required shall be issued by acceptable insurance companies (as determined by Participating Agency) which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any Federal law. b. Additional Insurance Provisions
(1) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Lead Agency (and any approval of said insurance by Participating Agency) is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Lead Agency pursuant to this Agreement (including but not limited to the provisions concerning indemnification).
(2) If at any time during the life of the Agreement any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Participating Agency has the right (but not the duty) to obtain the insurance it deems necessary; and any premium paid by Participating Agency will be promptly reimbursed by Lead Agency.
(3) Participating Agency may require Lead Agency to
provide complete copies of all insurance policies in effect for the duration of the Encroachment Area.
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(4) Participating Agency (including Participating Agency’s Council, any member of Participating Agency’s Council, officials, officers, employees, agents, or volunteers) shall not be personally responsible for any liability arising under or by virtue of this Agreement. c. Contractor and Subcontractor Insurance Requirements. Lead Agency shall not allow any contractors or subcontractors to commence work in the Encroachment Area until they have provided evidence satisfactory to Participating Agency that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such contractors or subcontractors shall be endorsed to name Participating Agency as an additional insured using a form acceptable to the Participating Agency. If requested by Lead Agency, Participating Agency may, in its sole discretion, approve different scopes or minimum limits of insurance for particular contractors or subcontractors.
7. Indemnification. To the fullest extent permitted by law, Lead Agency shall defend (with counsel reasonably approved by Participating Agency), indemnify, and hold Participating Agency (and its elected and appointed officials, officers, employees, agents, and authorized volunteers) free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, mechanics liens, judgments, awards, decrees, settlements, losses, damages, injuries or liabilities of any kind (including without limitation the payment of all damages, expert witness fees, attorneys’ fees, and other related costs and expenses) in law or equity to property or persons including wrongful death (“Claims”) in any manner arising out of, pertaining to, or incident to the design, construction, installation, operation, maintenance, existence, or failure of the Facility or Lead Agency’s use of the Encroachment Area (including without limitation any Claims arising out of or pertaining to any alleged acts, errors, omissions, or willful misconduct of Lead Agency (or its officials, officers, employees, subcontractors, consultants, or agents, except to the extent caused by the sole active negligence or willful misconduct of Participating Agency). a. Lead Agency's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Participating Agency (members of Participating Agency Council, its employees, or authorized volunteers). Lead Agency’s indemnification obligation shall survive the expiration or earlier termination of this Agreement.
b. This obligation applies regardless of any passive or concurrent negligence of Participating Agency, except for the sole active negligence or willful misconduct of Participating Agency. Lead Agency’s duty to defend is
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immediate upon tender and exists independently of the duty to indemnify in connection with the performance of Lead Agency’s services including without limitation the design, construction, operation, maintenance, existence, or failure of the Facility.
c. Lead Agency shall be solely responsible for compliance with all applicable storm water regulations including but not limited to National Pollutant Discharge Elimination System and Municipal Separate Storm Sewer Systems permit requirements. Lead Agency shall defend, indemnify, and hold harmless Participating Agency from any claims, enforcement actions, penalties, or liabilities arising from such compliance obligations. d. Lead Agency is the California Environmental Quality Act (“CEQA”) lead agency and shall be solely responsible for any environmental compliance relating to the Facility. Lead Agency shall defend, indemnify, and hold harmless Participating Agency from any CEQA-related claims.
8. Utility Company’s Right of Entry. Lead Agency acknowledges that several utility companies may have facilities within the proposed Easement Area and under their legal authority have the absolute right to enter upon the Easement Area for purposes of inspection, replacement, repair, or maintenance of their facilities in the public right-of-way (each, a “Utility Company”); and Lead Agency waives any and all claims for damages to the Facility resulting from such actions unless the Utility Company, its officers, employees, contractors, consultants, or agents damage the Facility through negligent or willful acts or omissions, the Utility Company shall promptly notify Lead Agency and repair such damage or reimburse Lead Agency for the reasonable cost of repair or replacement
9. Damage to Encroachment Area. Lead Agency assumes
responsibility for all damage to the Encroachment Area caused in any manner by Lead Agency’s use of the Facility. Grantee shall promptly repair any damage to any portion of the Encroachment Area and shall restore the Encroachment Area to substantially the same or better condition as existed prior to such damage.
10. Maintenance of Facility. Lead Agency shall at its sole expense inspect and maintain the Facility in good order, condition, and repair and in compliance with all requirements of applicable laws and ordinances.
11. Protective Measures. Lead Agency shall follow the requirements of this Agreement when performing the Work. Further, Lead Agency shall comply with all statutes, ordinances, rules, regulations, orders, and decisions issued by any Federal, state, or local governmental body or agency relating to the Work
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(including without limitation any barricades, traffic control devices, trench plates, or similar such devices intended to give warning and protect the public from injury or loss resulting from the construction, installation, repair, maintenance or removal of the Facility within the Easement Area).
12. Restoration of Property. Upon removal or relocation of the Facility or termination of this Agreement (including by abandonment), Lead Agency shall at its expense remove the Facility and restore the Property to substantially the same or better condition existing just prior to construction and installation of the Facility unless directed otherwise by Participating Agency (including but not limited to restoring the paving, grading, and alterations to the road, sidewalk, parkway, curb, and gutter surrounding or in which the Facility lies on). Restoration shall be performed in accordance with then-current Participating standards. a. Notwithstanding the preceding sentence, if the surface of the Encroachment Area or any portion thereof (including without limitation any curbing, pavement, or other improvements thereon) shall be disturbed (by installation, operation, maintenance, repair, or other activities performed by or on behalf of Lead Agency in connection with the use of the Encroachment Area), said surface and improvements shall be promptly restored by Lead Agency to the condition existing just prior to their disturbance (including rebuilding back down to elevations and grade of a standard right-of-way that existed prior to the construction and installation of the Facility).
13. Compliance with Codes. Lead Agency shall perform all Work in full compliance with all applicable codes, ordinances, and laws; and obtain all necessary permits.
14. Waiver and Release. Lead Agency in perpetuity expressly waives, releases, and relinquishes any and all claims, causes of action, rights, and remedies Lead Agency may now or hereafter have against Participating (and its officials, officers, employees, and agents) whether known or unknown with respect to liability for any damage to or loss of the Facility unless such damage or loss is caused by the sole active negligence or willful misconduct of Participating Agency.
a. As a material part of Participating Agency’s decision to issue this Agreement, Lead Agency hereby assumes all risk of damage to the Facility arising to the extent attributable to Participating Agency’s exercising its rights under this Agreement; and Lead Agency hereby waives all claims in respect thereto against Participating Agencyr, except if caused by the sole active negligence or willful misconduct of Grantor.
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15. Mechanics Lien Claims. In its performance of the Work or any other activities on the Encroachment Area associated with this Agreement, Lead Agency shall assure that the Property is kept free from mechanics lien claims; and shall defend, indemnify, and hold Participating Agency free and harmless from and against any such claims. In the event a mechanics lien is filed against the Property, Lead Agency shall cause such lien to be removed (whether by bonding or otherwise) within thirty (30) calendar days after it is recorded.
16. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or Federal court situated in the County of Los Angeles, State of California.
17. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the Parties.
18. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office (certified mail, return receipt requested, postage prepaid, and addressed to the following addresses) and shall be effective upon receipt thereof:
Grantor:
City of Hermosa Beach
1315 Valley Drive
Hermosa Beach, California 90254
Attn: City Manager
Email: [email protected]
Grantee:
City of Manhattan Beach
1400 Highland Ave
Manhattan Beach, California 90266
Attn: City Manager
Email:
[email protected]
19. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
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20. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance; and the remaining provisions of this Agreement shall remain in full force and effect.
21. Time of Essence. Time is of the essence for each and every provision of this Agreement.
22. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof; and shall not in any way affect the meaning or interpretation of this Agreement.
23. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
24. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties; and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
25. Entire Agreement. This Agreement (including the Exhibits) represents the entire understanding of the Parties as to those matters contained herein; and supersedes and cancels any prior or contemporaneous oral or written understanding, promises, or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein; and that any other agreements shall be void. This is an integrated Agreement.
26. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
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CITY OF HERMOSA BEACH
APPROVED BY:
Steve Napolitano
City Manager
ATTESTED BY:
Martha Alvarez
City Clerk
APPROVED AS TO FORM:
Jason Baltimore
Interim City Attorney
CITY MANHATTAN BEACH
APPROVED BY:
Talyn Mirzakhanian
City Manager
ATTESTED BY:
Liza Tamura
City Clerk
APPROVED AS TO FORM:
Quinn Barrow
City Attorney
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AGREEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ___________________ )
On , 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)
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ___________________ )
On , 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)
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EXHIBIT A
Legal Description of Encroachment Area
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EXHIBIT B
Site Plan
1ST ST
OCEAN DR
BIO CLEAN
BIO CLEANBIO CLEAN
10+06
10+25
10+50
10+75
11+00
10+00
10+25
10+50
10+75
11+00
10+0010+25
10+50
L1L2L3L4
35th
1st pl1st pl1st2nd pl2nd pl2nd pl2nd plInglesideThe Strand5thOceanManhattan 3rd
Bay View
2nd1st pl
Homer
HighlandCrestVista3rd2nd
1st MorningsideFrancisco
ALIGNMENT DATA TABLEL1L2L3L4
CONSTRUCTION NOTES:
LOCATION
KEYMAP
PLAN
100% CONSTRUCTION PLAN
Know what'sbelow.before you dig.Call
R
CITY OFMANHATTAN BEACHCITY OFHERMOSA BEACH
SECTION A-A
A
B
B
SECTION B-B
DEMOLITION NOTES:
A
BACKFILL AND SHORING NOTES:
LEGEND:
CITY OF MANHATTAN BEACHCITY OF HERMOSA BEACH
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CERTIFICATE OF ACCEPTANCE
OF
EASEMENT AND MAINTENANCE AGREEMENT
(City of Manhattan Beach)
This is to certify that the interest in real property conveyed by the foregoing Construction and Maintenance Agreement from the CITY OF HERMOSA BEACH, a California municipal corporation, to the CITY OF MANHATTAN BEACH, a California municipal corporation (“City”), is hereby accepted by the undersigned authorized officer on behalf of City, pursuant to authority conferred on such authorized officer by City, and City consents to recordation of such Construction and Maintenance Agreement in the Official Records of the Recorder of the County of Los Angeles, California.
CITY OF MANHATTAN BEACH,
a California municipal corporation
By: __________________________
Name: ________________________
Title: _________________________
Dated: ___________________, 2026