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MAINTENANCE AGREEMENT
This AGREEMENT (“Agreement”) is made as of _________, 2024 (“Effective Date”) by and between ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, (“DISTRICT)”, the COUNTY OF ORANGE, a political subdivision of the state of California (“COUNTY”), and the CITY OF SAN CLEMENTE (“CITY”), a municipal corporation.
DISTRICT, COUNTY and CITY may sometimes hereinafter individually be referred to as “Party” or jointly as “Parties.”
RECITALS
A. Bridge Number 55C0399 is located within the local jurisdiction of the CITY and serves as a portion of the public roadway Calle de Los Molinos as it traverses over a subsurface segment of the Segunda Deshecha Canada Channel (OCFCD Facility No. M02) as illustrated on “Exhibit A,” attached hereto and by this reference made a part hereof (“Subject Property”).
B. DISTRICT and COUNTY do not have a vested property interest or right-of-way at the Subject Property. The CITY intends this Agreement to serve as the CITY’s written permission and authorization for the DISTRICT and/or COUNTY to enter upon the Subject Property and to perform work in accordance with the terms herein.
C. The Parties intend this Agreement to set forth the Parties’ understanding with respect to their respective responsibilities to operate and maintain infrastructure and facilities at the Subject Property and to ensure their joint use will not impede their respective operations. The Parties intend this Agreement to enable the DISTRICT to perform flood protection, flood control and channel/subsurface structural maintenance activities at the Subject Property in accordance with the Orange County Flood Control Act, California Water Code Appendix, section 36-1, et seq.
D. The Agreement further reflects the Parties’ shared objective that their respective work within the Subject Property will not unreasonably interfere with each other’s exercise of their respective rights and that each will endeavor to minimize the need in the future to impact the other’s facilities. Therefore, the Parties intend this Agreement to enable them to work collaboratively toward mitigating such impacts and to establish a mechanism by which they may cost share and reimburse each other for related costs incurred in accordance with the terms herein.
NOW, THEREFORE, the Parties agree:
The above Recitals are fully incorporated by this reference as though set forth in full.
1. DEFINITIONS
For the purposes of this Agreement, the following words are defined as follows, unless otherwise apparent from context:
a. “Bridge” means that certain bridge referenced by as Bridge Number 55C0399 located Attachment 1
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within the local jurisdiction of the CITY that serves as a portion of the public roadway Calle de Los Molinos as it traverses over a subsurface segment of the Segunda Deshecha Canada Channel.
b. “Channel” means that subsurface reinforced concrete box segment of DISTRICT’s Segunda Deshecha Canada Channel Facility No. M02 on the Subject Property located beneath the Bridge.
c. “CITY Representative” means the City’s Public Works Director / City Engineer, or their success or designee, who has the authority to perform actions on behalf of the CITY to carry out the terms in this Agreement.
d. “Days” means calendar days, unless otherwise specified. e. “Director” means Orange County’s Director of OC Public Works, or any successor agency thereto, or Director’s designee, who has the authority to perform actions on behalf of the COUNTY and/or DISTRICT to carry out the terms in this Agreement. f. “Installation” means any aerial, surface or subsurface utility or facility, other than the Channel, that has been or will be installed in, on or about the public road right-of-way, Road (as defined below) or Bridge.
g. “Road” means a portion of the public roadway Calle de Los Molinos on the Subject Property located above the Channel, including the fill over the Channel and beneath the Road surface and its appurtenances such as sidewalk, curb, gutter, signage and local drainage (including but not limited to any chutes or v-ditches and slopes).
2. TERM
The initial term of this Agreement shall be for twenty-five (25) years, commencing on the Effective Date, unless terminated earlier as provided herein. This Agreement will automatically renew annually for an additional one (1) year term with all the same covenants, terms and conditions provided herein unless either Party notifies the other in writing of its intention to terminate this Agreement at least one hundred eighty (180) days prior to the expiration of the then current initial or extended term.
3. DEFAULT AND TERMINATION
In the event of a Party’s breach of an obligation in this Agreement, the other Party may provide written notification to the offending Party of such breach. The offending Party shall have twenty (20) days after receipt of written notification to begin work to cure the breach identified in the written notification. If the offending Party fails to cure such breach within that 20-day period or if the Parties do not otherwise resolve the matter, the Party that sent the written notification may, at its sole discretion, take any of the following actions or combination thereof:
a. Waive the breach of the Agreement in writing. Any waiver under this provision shall not SEGUNDA DESHECHA CANADA CHANNEL (M02)
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function as a waiver of any future breaches of this Agreement. b. Terminate this Agreement, as provided in Section 2, and in such circumstance all respective Parties shall complete and record a quitclaim of rights and interests created herein. c. Remedy the breach and charge the offending Party the cost of that remedial action as set forth herein.
d. Take legal action, in law or in equity, to remedy any default, to recover damages for any breach of this Agreement; to compel specific performance of this Agreement; or to obtain injunctive relief, a declaratory judgment or any other equitable remedy consistent with the purposes of this Agreement.
4. DISTRICT AND/OR COUNTY RIGHTS
CITY hereby grants to the DISTRICT and the COUNTY, and their respective successors and assigns, the right to enter the Subject Property for the purpose of maintaining, operating, repairing, improving, modifying, reconstructing and replacing the Channel and Bridge and those rights necessary for the proper maintenance and operation of the Channel and to permit any steps to be taken which the Director deems necessary or desirable to maintain, repair, improve, modify or reconstruct the Bridge, Channel or said facilities or such operations. The rights in this section, or any other section of this Agreement, shall be exercised by the Director, at the Director’s sole discretion. The Parties agree to record as an encumbrance on the Subject Property, a Memorandum of Agreement in a form substantially similar to that attached as Exhibit B to this Agreement, for the purpose of acknowledgment of this Agreement and to provide notice to the public of the appropriate Party to notify for matters concerning the Road, Bridge and Channel on the Subject Property.
5. DISTRICT AND/OR COUNTY USE
Each of DISTRICT and COUNTY (“DISTRICT/COUNTY”) agrees not to create, or permit to be created, any public or private nuisance with the Subject Property. In addition, DISTRICT/COUNTY agree to comply with all government laws and regulations in connection with their respective use of the Subject Property and agree that said use of the Subject Property shall be subject to all terms, conditions set forth in this Agreement, in addition to any other agreements between the CITY, and DISTRICT/COUNTY regarding use of the Subject Property.
Neither DISTRICT or COUNTY nor any agent, employee, contractor, operator or any other person or entity acting for or on behalf thereof shall incur any liability, including, but not limited to, loss of business, damage, destruction or relocation costs of the Road, Installations or impaired utility of the Subject Property for any action undertaken in the maintenance, repair, operation, improvement, modification or reconstruction of said flood control facilities. CITY agrees that should DISTRICT take any reasonable action in connection with the maintenance, repair, operation, improvement, modification or reconstruction of said Channel flood control facilities that requires the relocation, removal and/or replacement of any Installations either on a temporary or permanent basis, CITY shall incur all reasonable costs and expenses associated therewith. Except in an emergency situation, Director agrees to provide CITY with a minimum of one hundred eighty (180) days’ SEGUNDA DESHECHA CANADA CHANNEL (M02)
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written notice prior to the commencement of any maintenance, repair, operation, improvement, modification or reconstruction of said Channel flood control or Bridge facilities that may require the relocation or removal of any of any Installations.
6. CITY USE
CITY promises and covenants to refrain from conducting, or permitting to be conducted, all activities within the Subject Property, of any sort, that might have the potential to, or would, interfere with the DISTRICT/COUNTY flood control operations and maintenance activities relating to, bordering or within the Channel.
CITY agrees to refrain from using the Subject Property in ways that would interfere with the use of the Subject Property by DISTRICT/COUNTY for the purposes set forth herein, and to prohibit third parties from engaging in all such activities within the Subject Property.
CITY agrees to require third parties use of the Subject Property to comply with all government laws and regulations in connection with said use and for any such use to be subject to all terms, conditions set forth in this Agreement.
CITY or third party construction or work for the installation of any systems within Channel, facilities or equipment within the Subject Property shall be subject to approval in writing by the Director (“Permit”) through Orange County Public Works’ Property Permit department in accordance with the Orange County Flood Control Act, California uncodified Water Code Act 5682, section 2, later codified as Water Code Appendix, section 36-2, which approval shall not unreasonably be withheld or delayed provided that such activities do not have the potential to, or would, interfere with the DISTRICT/COUNTY’s flood control operations and maintenance activities relating to, bordering or within the Channel. The Permit applicant shall render all normal processing with no fees therefor, prior to commencement of any work in, on, over, under, across or about the Subject Property; and upon completion of any such work, CITY shall immediately notify Director in writing of such completion. Routine road surface maintenance and road rehabilitation work including, but not limited to, pavement repairs and replacements, sidewalk repairs and replacements, curb and gutter repairs and replacements, and any other related road work is exempt from requiring a Permit. This routine surface and road maintenance work is referred to herein as “Routine Road Maintenance”.
No Permit, approval or consent given by DISTRICT/COUNTY shall affect or limit CITY obligations hereunder nor shall any such approvals or consents given by DISTRICT or COUNTY, be deemed approval as to compliance or conformance with applicable, governmental codes, laws, ordinances, rules, or regulations.
Director’s approval of construction and/or work plans in a Permit shall not be deemed approval from the standpoint of structural safety, suitability for purpose or conformance with building or other codes or other governmental requirements. DISTRICT/COUNTY are not responsible for permitting of any construction and/or maintenance, design, assumptions or accuracy of other parties’ submitted construction and/or maintenance plans. Director will rely on the professional expertise of the Engineer of Record when approving such construction and/or maintenance plans.
CITY acknowledges that built structures that induce loading on DISTRICT/COUNTY flood control SEGUNDA DESHECHA CANADA CHANNEL (M02)
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structures pose a potential structural and safety problem for DISTRICT/COUNTY flood control structures. Notwithstanding the above, Calle de Los Molinos is a public street and other vehicles with heavy loading could use the roadway without CITY’s knowledge and that are not part of any CITY projects and therefore, are not a part of CITY’s responsibilities.
Should it be necessary for CITY to conduct any construction within Channel other than Routine Road Maintenance, inspection or maintenance activities requiring the disturbance of the subsurface of the Subject Property or requiring the use of any specialized vehicles or equipment, including but not limited to cranes, within, over, under or about the Subject Property, CITY agrees to notify Director in writing no fewer than sixty (60) days in advance of such planned activities, and obtain Director’s written approval of all plans by obtaining a permit through Orange County Public Works’ Property Permit department in accordance with the Orange County Flood Control Act, California Water Code Appendix, sections 36-1, et seq., with normal processing with no fees therefor, prior to commencement of any such activities. Said approval shall not be withheld or delayed unreasonably, nor shall said approval be necessary in any emergency situation or in conducting routine maintenance activities that do not involve use of DISTRICT/COUNTY property outside of the Subject Property. However, other than Routine Road Maintenance, CITY shall notify Director within ten (10) days following commencement of any emergency repair work, and if requested by Director, CITY shall secure a Permit for the purpose of documenting the emergency work.
7. CITY MAINTENANCE/OPERATIONS
CITY shall, at no cost to DISTRICT/COUNTY, keep and maintain the Subject Property (other than the Channel and DISTRICT/COUNTY-owned facilities, if any, within the Subject Property) in good and safe condition and in substantial repair, and shall at all times conduct all operations thereon in a safe and responsible manner. It shall be CITY’s responsibility to take all necessary actions to maintain the Subject Property in such condition to not interfere with the operation and flood control purposes of DISTRICT’s Channel. CITY, at no cost to DISTRICT/COUNTY, shall perform all installation operation and maintenance responsibilities, which shall include but is not limited to:
a. Maintaining the plantings and landscaping at a minimum of 18” from the Channel for a visual observation space at the top of the Channel with all trees a minimum of 10’ from the Channel wall, with root pruning and root barriers on the portion of root adjacent to the Channel;
b. Maintaining the Road and ensuring operation of Installations are in good and safe condition and in substantial repair, and shall at all times conduct all operations thereon in a safe and responsible manner;
c. Performing its operations within the Subject Property in ways to reduce leaf litter and debris from entering the Channel and to address other related water quality issues when notified in writing by the Director of a matter to address; d. Performing graffiti clean-up within the Subject Property and removal of any abandoned property or encampments from the Subject Property; and
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e. Accommodate drainage, run-off from adjacent parcels to the Channel.
Except for flood control operations and maintenance of the Channel and DISTRICT-owned facilities, DISTRICT/COUNTY shall have no obligation to maintain or make any repairs or replacements to any area in, on over under or about the Subject Property. DISTRICT/COUNTY shall also have no obligation to secure the Subject Property or to provide law enforcement oversight for the Subject Property. In the event CITY fails to maintain, make repairs, remove and/ or replace Installations that affect DISTRICT's ability to maintain the Channel or provide flood control, Director may notify the CITY in writing of the needed correction(s). Unless otherwise agreed upon in writing, within five (5) days of receipt, CITY shall correct the identified deficiencies or provide the Director evidence of CITY’s having commenced the necessary corrective measure(s). Should, in the Director's sole discretion, the CITY fails to correct the identified deficiency within a reasonable time, Director may notify the CITY that the DISTRICT/COUNTY will undertake and complete the necessary work. In such a case, the CITY shall remain fully responsible and liable for the repair, replacement and corrective measures; and, shall pay DISTRICT within thirty (30) days of receipt of an invoice to reimburse DISTRICT’s associated cost, including but not limited to, the cost of labor (overtime, overhead and burden), materials, and equipment, with a fifteen percent (15%) administration fee, and any collections costs. CITY agrees to indemnify, hold harmless, protect and defend DISTRICT/COUNTY pursuant to the terms in Section 10, from claims arising from DISTRICT/COUNTY performing any of CITY’s obligations under this AGREEMENT.
DISTRICT’s election to self-perform corrective work under this provision shall not bar DISTRICT/COUNTY from availing itself of other remedies available under law, equity or contract, including other remedies made available by this Agreement.
CITY shall also promptly, at its sole cost and expense, repair or replace to their condition prior to damage or destruction, any facilities, equipment or improvements on DISTRICT’S property located under, over, within or adjacent to the Subject Property that are damaged or destroyed by CITY directed, conducted or sponsored activities under this Agreement. If CITY fails to perform any such repair or restoration within thirty (30) days following written notice from Director to CITY, or as such repair or restoration period may be extended in writing by Director. DISTRICT/COUNTY may opt to make the necessary repair or restoration and the cost thereof, including but not limited to the cost of labor, materials, and equipment and a fifteen percent (15%) administration fee of such costs, shall be paid by CITY within thirty (30) days of invoice by the DISTRICT. DISTRICT’s election to self-perform corrective work under this provision shall not bar DISTRICT/COUNTY from availing itself of other remedies available under law, equity or contract, including other remedies made available by this Agreement.
The Parties agree to cooperate in the maintenance and operation of their respective facilities within the Subject Property by coordinating such activities. CITY shall designate in writing a representative (“Site Representative”) to Director. The Site Representative shall be responsible for the day-to-day operation and level of maintenance and general order of the Subject Property and any of Installations thereon. The Site Representative shall contact OC Public Works’/Operations & Maintenance by calling 714-955-0200 for any CITY activities that may affect DISTRICT/COUNTY use of the Subject Property, other than Routine Road Maintenance, at least 72 hours in advance of the commencement of such activities or as otherwise mutually agreed upon SEGUNDA DESHECHA CANADA CHANNEL (M02)
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in writing. Likewise, DISTRICT/COUNTY shall contact CITY’s Site Representative for any DISTRICT activities that may affect CITY’s use of the Subject Property at least 72 hours in advance of the commencement of such activities or as otherwise mutually agreed upon in writing.
8. BRIDGE AND CHANNEL MAINTENANCE/OPERATIONS
DISTRICT/COUNTY shall, at no cost to CITY, keep and maintain the Subject Property (other than the Road, Installations and CITY-owned facilities) in good and safe condition and in substantial repair, and shall at all times conduct all operations thereon in a safe and responsible manner. It shall be DISTRICT/COUNTY’s responsibility to take all necessary actions to maintain the Subject Property in such condition so as to not unreasonably interfere with the CITY operations on the Subject Property.
In the event DISTRICT/COUNTY fail to maintain or make ordinary repairs to the Bridge or Channel within the Subject Property which affect CITY’s use in accordance with the terms herein, the CITY Site Representative may notify the Director in writing of the needed correction(s). Unless otherwise agreed upon in writing, within five (5) days of receipt of such notice, DISTRICT/COUNTY shall correct the identified deficiencies or provided the CITY Site Representative evidence of DISTRICT/COUNTY having commenced the necessary corrective measure(s). Should the DISTRICT/COUNTY fail to correct the situation within a reasonable time, CITY may notify the DISTRICT/COUNTY that CITY will undertake and complete the necessary work. In such case, DISTRICT/COUNTY shall remain fully responsible and liable for the repair, replacement and corrective measures; and, shall pay CITY within thirty (30) days of receipt of an invoice to reimburse CITY’s associated cost, including but not limited to, the cost of labor (overtime, overhead and burden), materials, and equipment, with a fifteen percent (15%) administration fee, and any collections costs. CITY’s election to self-perform corrective work under this provision shall not bar CITY from availing itself of other remedies available under law, equity or contract, including other remedies made available by this Agreement.
9. RELOCATION OF INSTALLATIONS
CITY agrees that in the event Director determines that any future Installation interfere with the operation, maintenance, replacement, or improvement of the Channel, flood control facilities or property, the CITY shall, within ninety (90) days of receipt of written notice from Director, and at CITY’s sole cost and expense arrange for the removal of the Installation from the Subject Property and any reinstallation within the Subject Property, if applicable and appropriate. For reinstallations within the Subject Property, if appropriate and applicable, DISTRICT agrees to affirm in writing that the relocation will not interfere with DISTRICT’s ability to implement its duties and responsibilities under the Orange County Flood Control Act and will not be a material imposition on DISTRICT. The costs and expenses of removal and, if applicable, relocation of CITY’s Installations shall be borne by CITY. However, in the event that expansion or reconstruction of the channel necessitates impacts to the road, City and District shall enter into a separate agreement delineating the responsibilities for each party with respect to cost and remediation of any impacts to the road.
10. HOLD HARMLESS
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CITY acknowledges the Subject Property is over, upon and about the Channel and may be subject to all hazards associated with flood conditions. CITY agrees to assume all risks, financial or otherwise, associated with CITY’s decisions to engage in activities over, on and about the Subject Property caused by or associated with DISTRICT’s flood control operations and the Channel.
CITY hereby releases and waives all claims and recourse against DISTRICT/COUNTY including the right of contribution for loss of or damage to property, or injury to or death of any person arising from, growing out of or in any way connected with or related to this Agreement, including any damage to or interruption of use of any of CITY’s equipment or facilities placed in, on, or about the Subject Property, caused by erosion, flood, or flood overflow conditions of the Channel, or caused by the operation, maintenance, repair, reconstruction, replacement, enlargement or improvement of the Channel, or caused by DISTRICT’S flood control operations, except claims arising from the concurrent active or sole negligence of DISTRICT/COUNTY, their officers, agents, employees and contractors.
CITY agrees to indemnify, defend with counsel reasonably approved in writing by DISTRICT/COUNTY’s Board of Supervisors, and hold harmless DISTRICT/COUNTY and their elected and appointed officials, employees, and agents (“DISTRICT/COUNTY INDEMNITEES”) and their property from all loss, injury, liability, damages, claims, costs and expenses, whether incurred by or made against DISTRICT, COUNTY or any of the DISTRICT/COUNTY INDEMNITEES (including attorney’s fees and court costs) in connection with (i) breach of this Agreement by the CITY or its elected and appointed officials, employees, representatives, member agencies, agents, contractors, operators, invitees, or any person authorized by CITY to conduct activities on the Subject Property (individually and collectively “CITY INDEMNITEES”); (ii) the willful misconduct or negligent acts or omissions of CITY, CITY INDEMNITEES or any of them relating to or connected with and/or implementation of the CITY operations on the subject property; and (iii) the accuracy of any materials, methodology and/or other documentation provided by CITY to DISTRICT/COUNTY, DISTRICT/COUNTY INDEMNITEES or any of them in furtherance of the implementation of the CITY operations on the Subject Property or in performance of this Agreement; provided, however, that (a) DISTRICT/COUNTY timely provides notice to the CITY upon becoming aware of any fact, condition or event which may reasonably give rise to CITY’s obligation to defend and indemnify DISTRICT/COUNTY under this section and, (b) nothing in this subparagraph shall operate to relieve DISTRICT/COUNTY or any DISTRICT/COUNTY INDEMNITEES from responsibility for, or to require their indemnification with respect to, any loss, injury, liability, damages, claims, costs or expenses to the extent determined by a court of competent jurisdiction to have been proximately caused by the willful misconduct or negligent acts or omissions of DISTRICT/COUNTY, the DISTRICT/COUNTY INDEMNITEES, any party acting on their behalf or under their direction.
DISTRICT/COUNTY jointly and severally agree to indemnify, defend with counsel reasonably approved in writing by the CITY, and hold harmless the CITY and its elected and appointed officials, employees, and agents (“CITY INDEMNITEES”) and their property from all loss, injury, liability, damages, claims, costs and expenses, whether incurred by or made against CITY or any of the CITY INDEMNITEES (including attorney’s fees and court costs) in connection with (i) breach of this Agreement by the DISTRICT/COUNTY or DISTRICT/COUNTY INDEMNITEES; SEGUNDA DESHECHA CANADA CHANNEL (M02)
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(ii) the willful misconduct or negligent acts or omissions of DISTRICT/COUNTY or DISTRICT/COUNTY INDEMNITEES or any of them relating to or connected with and/or implementation of the rights granted herein or in performance of this Agreement; provided, however, that (a) CITY timely provides notice to the DISTRICT/COUNTY upon becoming aware of any fact, condition or event which may reasonably give rise to the DISTRICT/COUNTY obligation to defend and indemnify CITY under this section and, (b) nothing in this subparagraph shall operate to relieve CITY or any CITY INDEMNITEES from responsibility for, or to require their indemnification with respect to, any loss, injury, liability, damages, claims, costs or expenses to the extent determined by a court of competent jurisdiction to have been proximately caused by the willful misconduct or negligent acts or omissions of CITY, the CITY INDEMNITEES, any party acting on their behalf or under their direction.
If judgment is entered against DISTRICT/COUNTY and CITY by a court of competent jurisdiction because of the concurrent active negligence of DISTRICT/COUNTY and CITY, DISTRICT/COUNTY and CITY agree that liability will be apportioned as determined by the court.
No Party shall request a jury apportionment.
11. HAZARDOUS MATERIALS
A. Definition of Hazardous Materials
For purposes of this Agreement, the term “Hazardous Material(s)” shall mean any hazardous or toxic substance, material, product, byproduct, or waste which is or shall become regulated by any governmental entity, including, without limitation, COUNTY, the State of California, or the United States government.
B. Use of Hazardous Materials
CITY or CITY INDEMNITEES shall not cause or permit any Hazardous Materials to be brought upon, stored, kept, used, generated, released into the environment or disposed of on, under, from or about the Subject Property (which for purposes of this clause shall include the subsurface soil and ground water).
C. CITY Obligations
If the presence of any Hazardous Materials on, under or about the Subject Property caused or permitted by CITY or CITY INDEMNITEES results in (i) injury to any person, (ii) injury to or contamination of the Subject Property (or a portion thereof), or (iii) injury to or contamination of any real or personal property wherever situated, CITY, at its sole cost and expense, shall promptly take all actions necessary or appropriate to return the Subject Property and/or other property to the condition existing prior to the introduction of such Hazardous Materials in, on, or about the Subject Property and to remedy or repair any such injury or contamination. Without limiting any other rights or remedies of DISTRICT/COUNTY under this Agreement, CITY shall pay the cost of any cleanup or remedial work performed on, under, or about the Subject Property as required by this Agreement or by applicable laws in connection with the removal, disposal, neutralization or other treatment of such Hazardous Materials caused or permitted by CITY or CITY INDEMNITEES. Notwithstanding the foregoing, CITY shall not take any remedial action SEGUNDA DESHECHA CANADA CHANNEL (M02)
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in response to the presence, discharge or release, of any Hazardous Materials on, under or about the Subject Property caused or permitted by CITY or CITY INDEMNITEES, or enter into any settlement agreement, consent decree or other compromise with any governmental or quasi-governmental entity without first obtaining the prior written consent of Director on behalf of DISTRICT/COUNTY, which shall not be unreasonably withheld or delayed. All work performed or caused to be performed by CITY as provided for above shall be done in good and workmanlike manner and in compliance with plans, specifications, permits, and other requirements for such work approved by Director.
12. BEST MANAGEMENT PRACTICES
The Parties shall conduct operations under this Agreement so as to assure that pollutants do not enter municipal storm drain systems which systems are comprised of, but are not limited to curbs and gutters that are part of the street systems (“Stormwater Drainage System”), and to ensure that pollutants do not directly impact “Receiving Waters” (as used herein, Receiving Waters include, but are not limited to, rivers, creeks, streams, estuaries, lakes, harbors, bays and oceans).
The Santa Ana and San Diego Regional Water Quality Control Boards have issued National Pollutant Discharge Elimination System (NPDES) permits (“Stormwater Permits”) to the DISTRICT/COUNTY and cities within Orange County, including CITY, as co-permittees (hereinafter collectively referred to as “County Parties”) which regulate the discharge of urban runoff from areas within the COUNTY, including the Subject Property. DISTRICT/COUNTY have enacted water quality ordinances that prohibit conditions and activities that may result in polluted runoff being discharged into the Stormwater Drainage System.
To assure compliance with the Stormwater Permits and water quality ordinances, DISTRICT/COUNTY have developed a Drainage Area Management Plan (“DAMP”) which includes a Local Implementation Plan (“LIP”) for each jurisdiction that contains Best Management Practices (“BMPs”) that parties using properties within Orange County must abide. As used herein, a BMP is defined as a technique, measure, or structural control that is used for a given set of conditions to manage the quantity and improve the quality of stormwater runoff in a cost-effective manner. These BMPs are found within the COUNTY’s LIP in the form of Model Maintenance Procedures and BMP Fact Sheets (the Model Maintenance Procedures and BMP Fact Sheets contained in the DAMP/LIP shall be referred to hereinafter collectively as “BMP Fact Sheets”) and contain pollution prevention and source control techniques to eliminate non-stormwater discharges and minimize the impact of pollutants on stormwater runoff.
The Parties shall, throughout the term of this Agreement, comply with the BMP Fact Sheets, as they exist now or are modified, and shall comply with all other requirements of the Stormwater Permits, as they exist at the time this Agreement commences or as the Stormwater Permits may be modified.
The Parties agree to maintain current copies of the BMP Fact Sheets in a location readily accessible to any or all Parties throughout the term of this Agreement.
A Party may propose alternative BMPs that meet or exceed the pollution prevention performance of the measures set forth in the BMP Fact Sheets. Any such alternative BMPs shall be submitted to SEGUNDA DESHECHA CANADA CHANNEL (M02)
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the Director for review and approval prior to implementation.
Director may access the Subject Property and/or review the records of a Party or their respective contractor at any time to assure that activities conducted within the Subject Property comply with the requirements of this section. A Party may be required to implement a self-evaluation program to demonstrate compliance with the requirements of this section.
13. NOTICES
All notices, documents, correspondence and communications concerning this Agreement shall be addressed as set forth in this Section, or as the Parties may hereafter designate by written notice and shall be sent through the United States mail with postage prepaid. Any such mailing shall be deemed served or delivered forty-eight (48) hours after mailing. Either Party may change the address for notices by giving the other Party at least ten (10) days’ prior written notice of the new address.
Notwithstanding the above, either Party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or by Federal Express or similar courier service and so given shall be deemed to have been given upon receipt.
To DISTRICT/COUNTY:
Mr. Kevin Onuma
County Engineer
County of Orange
P.O. Box 4048
Santa Ana, CA 92702-4048
RE: Maintenance Agreement MA #__
To CITY:
Mr. David Rebensdorf
Public Works Director / City Engineer
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
RE: Maintenance Agreement MA #__
14. AUTHORITY
The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes a legally binding obligation of their respective organization or entity, enforceable in accordance with the terms herein.
15. LABOR CODE COMPLIANCE
The Parties acknowledge and agree that all improvements or modifications required to be performed as a condition precedent to the commencement of the term of this Agreement or any such future improvements or modifications performed by or at the request of a Party shall be governed by, and performed in accordance with, the provisions of Article 2 of Chapter 1, Part 7, Division 2 of the Labor Code of the State of California (Sections 1770, et seq.). These provisions are applicable to improvements or modifications costing more than $1,000.
Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Orange County Board of Supervisors has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the locality applicable to this Agreement SEGUNDA DESHECHA CANADA CHANNEL (M02)
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for each craft, classification, or type of workman needed to execute the aforesaid improvements or modifications from the Director of the State Department of Industrial Relations. Copies of said prevailing wage rates may be obtained from the State of California, Department of Industrial Relations.
The Parties hereby agree to pay or cause its contractors and/or subcontractors to pay said prevailing wage rates at all times for all improvements or modifications to be completed within the Subject Property, and the Parties herein agree to post, or cause to be posted, a copy of the most current, applicable prevailing wage rates at the site where the improvements or modifications are performed.
Prior to commencement of any improvements or modifications, the Party performing the work shall provide Director with the applicable certified payroll records for all workers that will be assigned to the improvements or modifications. Said payroll records shall contain, but not be limited to, the complete name, address, telephone number, social security number, job classification, and prevailing wage rate for each worker. Said Party shall also provide, Director bi-weekly updated, certified payroll records for all workers that include, but not be limited to, the weekly hours worked, prevailing hourly wage rates, and total wages paid.
If a Party neglects, fails, or refuses to provide said payroll records to Director, such occurrence shall constitute a default under this Agreement and the other Parties, notwithstanding any other termination provisions contained herein, may terminate this Agreement following notice and an opportunity to cure the default in accordance with Section 3 of this Agreement. A Party’s failure to provide payroll records to the Director will result in withholding of payment until such payroll records are provided. Withholding of payment in accordance with this provision shall not constitute a default under this Agreement.
16. RIGHT TO WORK AND MINIMUM WAGE LAWS
In accordance with the United States Immigration Reform and Control Act of 1986, the Parties shall require their respective employees that directly or indirectly service or conduct activities on the Subject Property pursuant to the terms and conditions of this Agreement, in any manner whatsoever, to verify their identity and eligibility for employment in the United States. Each Party shall also require and verify that its contractors or any other persons servicing or conducting construction activities on the Subject Property pursuant to the terms and conditions of this Agreement, in any manner whatsoever, verify the identity of their employees and their eligibility for employment in the United States.
Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of California Labor Code, Section 1178.5, each Party shall pay no less than the greater of the Federal or California Minimum Wage to all its employees that directly or indirectly service the Subject Property, in any manner whatsoever. Each Party shall require and verify that all its contractors or other persons servicing the Subject Property on behalf of a Party also pay their employees no less than the greater of the Federal or California Minimum Wage.
Each Party shall comply and verify that its contractors comply with all other Federal and State of California laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the servicing of the Subject Property or terms and conditions of this Agreement.
SEGUNDA DESHECHA CANADA CHANNEL (M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
CITY OF SAN CLEMENTE - 13 - 2.1.2021
Notwithstanding the minimum wage requirements provided for in this section, each Party where applicable, shall comply with the prevailing wage and related requirements, as provided for in Section 6 (Labor Code Compliance) of this Agreement.
17. PARTIAL INVALIDITY AND SURVIVAL
If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.
18. WAIVER OF RIGHTS
The failure of either Party 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 Party 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 Agreement thereafter, nor a waiver of any remedy for subsequent breach or default under term, covenant, or condition of the Agreement. Any waiver, in order to be effective, must be signed by the Party whose right or remedy is being waived.
19. ATTORNEYS’ FEES
In the event of a dispute between the Parties concerning claims arising out of this Agreement, or in any action or proceeding brought to enforce or interpret any provision of this Agreement or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorneys’ fees and costs.
20. COST SHARING
CITY and Director may mutually agree in writing to collaborate on activities within the Subject Property in order to fulfill their respective obligations as contemplated herein or perform their operations jointly, by sharing related costs and paying or reimbursing the other accordingly.
Notwithstanding the above, the mere act of cost sharing shall not result or be construed to be a Party assuming the other’s responsibilities or changing its liability from what is set forth in this Agreement. Written cost-sharing documents between the CITY Site Representative and the Director as contemplated within this Section shall not constitute an amendment to this Agreement.
A Party seeking a cost-share payment from the other Parties must satisfy the requirements set forth in Section 21 below.
21. PAYMENT TERMS
Invoices, reconciliations and the final statement to the other Parties shall include the following, as applicable, for a Party to receive payment from the other Parties for allowable costs in accordance with the terms herein:
a. Agreement Number MA#;
b. Itemization of expenditures; specifying the percent and amount to be reimbursed with SEGUNDA DESHECHA CANADA CHANNEL (M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
CITY OF SAN CLEMENTE - 14 - 2.1.2021
supporting documentation with documentation of the Director and CITY Site Representative written approval of an engineer’s estimate prior to commencement of work; c. Adequate detail describing all work completed with documentation of the Director and CITY Site Representative written approval prior to commencement of work; and d. Signature by an authorized agent certifying the accuracy of the included information.
The Parties agree to pay requests for payment received in accordance with the terms herein within thirty (30) days of receipt thereof, unless otherwise extended by the Director and CITY Representative in writing.
22. COUNTERPARTS/ELECTRONIC SIGNATURES
This Agreement may be executed in any number of counterparts, which together shall constitute one instrument. This Agreement may be executed electronically with the same force and effect as original, ink signatures.
[SIGNATURES ON FOLLOWING PAGE]
SEGUNDA DESHECHA CANADA CHANNEL (M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
CITY OF SAN CLEMENTE - 15 - 2.1.2021
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written.
Approved as to Form
Office of the County Counsel
Orange County, California
By: ____________________________
Deputy
Date: _________________________
DISTRICT
Orange County Flood Control District,
a body corporate and politic
By: _____________________________
Chairman 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:
__________________________________
Robin Stieler
Clerk of the Board of Supervisors
Orange County Flood Control District
Orange County, California
Approved As to Form
By: ____________________________
Elizabeth A. Mitchell, City Attorney
ATTEST:
By: __________________________________
Laura Campagnolo, City Clerk
COUNTY
County of Orange,
a subdivision of the State of California
By: _____________________________
Chairman of the Board of Supervisors
Orange County, California
CITY
City of San Clemente,
a municipal corporation
By:
_____________________________
Andy Hall, City Manager
Date: _______________________
SEGUNDA DESHECHA CANADA CHANNEL (M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
EXHIBIT A
SUBJECT PROPERTY
SEGUNDA DESHECHA CANADA CHANNEL (
M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
SEGUNDA DESHECHA CANADA CHANNEL (M02)
CALLE DE LOS MOLINOS BRIDGE 55C0399 MA#-080-______
EXHIBIT B
MEMORANDUM OF AGREEMENT
RECORDED AT THE REQUEST OF,
WHEN RECORDED MAIL TO:
County of Orange
OC Public Works
Real Estate Services
601 N. Ross Street
Santa Ana, California 92701
Attn: Flood Program Support
Mail Tax Statements as shown above THIS SPACE FOR RECORDER’S USE ONLY This is to certify that this document is exempt
from recording fees per Govt. Code Sec. 27383
and is exempt from Documentary Transfer Tax per Unincorporated Area Rev. & Taxation Code Sec. 11922. Incorporated, City of San Clemente By:
OC Public Works/Real Estate Services Project: Calle De Los Molinos Bridge 55C0399 Project Name: Segunda Deshecha Channel (M02)
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT ("Memorandum") is made as of __________, 2025, by and among the Orange County Flood Control District, a body corporate and politic (“District”), the County of Orange, a political subdivision of the State of California (“County”), and the City of San Clemente, a municipal corporation (“City”). District, County and City are each referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
A. Reference is hereby made to that certain Master Agreement MA#080-#### (the “Agreement”), dated _____________, 2025, by and among the Parties, pursuant to Bridge Number 55C0399 located within the local jurisdiction of the City and serves as a portion of the public roadway Calle de Los Molinos as it traverses over a subsurface segment of the Segunda Deshecha Canada Channel (OCFCD Facility No. M02) as illustrated on “Exhibit A,” attached hereto and by this reference made a part hereof (“Subject Property”).
B. District and County do not have a vested property interest or right-of-way at the Subject Property. The CITY intends this Agreement to serve as the CITY’s written permission and authorization for the DISTRICT and/or COUNTY to enter upon the Subject Property and to perform work in accordance with the terms herein.
C. The Parties intend the Agreement to set forth the Parties’ understanding with respect to their respective responsibilities to operate and maintain infrastructure and facilities at the Subject Property and to ensure their joint use will not impede their respective operations. The Parties intend the Agreement to enable the DISTRICT to perform flood protection, flood control and channel/subsurface structural maintenance activities at the Subject Property in accordance with the Orange County Flood Control Act, California Water Code Appendix, section 36-1, et seq.
D. The Agreement further reflects the Parties’ shared objective that their respective work within the Subject Property will not unreasonably interfere with each other’s exercise of their respective rights and that each will endeavor to minimize the need in the future to impact the other’s facilities. Therefore, the Parties intend the Agreement to enable them to work collaboratively toward mitigating such impacts and to establish a mechanism by which they may cost share and reimburse each other for related costs incurred in accordance with the terms herein.
E. The Parties desire to record this Memorandum so that third parties may have notice of the existence of the Agreement, and the obligation of the Parties to convey property rights as further set forth therein.
For good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows:
1. Notice. The purpose of this Memorandum is to give notice of the existence of the Agreement and the need for all interested parties to inquire further about the terms and conditions of the Agreement. If there is any inconsistency between any provisions of this Memorandum and any provisions of the Agreement, the provisions of the Agreement shall control.
2. Cancellation of Memorandum. Upon the recordation of a quitclaim deed which is executed and acknowledged by the Parties hereto, this Memorandum shall no longer serve any purpose and it will no longer be necessary for third parties to have notice of the existence of the Agreement and/or this Memorandum. Upon recordation of a quitclaim, this Memorandum shall be nullified and of no further force or effect and this Memorandum and the Agreement shall not be matters of record with respect to the Subject Property. The Parties hereby authorize and direct any and all issuers of title insurance with respect to all or any portion of the Subject Property not to indicate the Memorandum or the Agreement as matters affecting the condition of title to all or any portion of the Subject Property following the recordation of the quitclaim deed described above.
3. Counterparts. This Memorandum may be executed in any number of counterparts. //
//
Signatures follow
Approved as to Form
Office of the County Counsel
Orange County, California
By: ________________________________
Deputy
Date: ______________________
DISTRICT:
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By: __________________________________
Kevin Onuma, Director
OC Public Works
ACKNOWLEDGMENT
State of California
County of Orange
On __________________, 20___, before me, ______________________________, a notary public, personally appeared ________________________________________________________, who proved to me on the basis of satisfactory evidence to be the persons(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 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 of Notary Public
Approved as to Form
Office of the County Counsel
Orange County, California
___________________________
Deputy
Date: _______________________
COUNTY:
COUNTY OF ORANGE
a political subdivision of the state of California
By: __________________________________
Kevin Onuma, Director
OC Public Works
ACKNOWLEDGMENT
State of California
County of Orange
On __________________, 20___, before me, ______________________________, a notary public, personally appeared ________________________________________________________, who proved to me on the basis of satisfactory evidence to be the persons(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 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 of Notary Public
CITY:
CITY OF SAN CLEMENTE,
a municipal corporation
By: ______________________________
Andy Hall, City Manager
ATTEST:
________________________________
Laura Campagnolo, City Clerk
Approved as to Form
City of San Clemente
City Attorney
By: ______________________________
Elizabeth A. Mitchell, City Attorney
Date: ___________________________
ACKNOWLEDGMENT
State of California
County of Orange
On __________________, 20___, before me, ______________________________, a notary public, personally appeared ________________________________________________________, who proved to me on the basis of satisfactory evidence to be the persons(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 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 of Notary Public
EXHIBIT "A" TO MEMORANDUM OF AGREEMENT
DEPICTION OF THE SUBJECT PROPERTY