COOPERATIVE AGREEMENT NO. CXXXXX
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
City of San Clemente
FOR
Additional Sand Site Exploration Studies
for
The Coastal Rail Stabilization Priority Project
THIS COOPERATIVE AGREEMENT (Agreement) is effective this _____ day of _____________ 20__, (“Effective Date”) by and between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange, California 92863-1584, a public corporation of the State of California, (hereinafter referred to as “AUTHORITY”), and the City of San Clemente, 910 Calle Negocio, San Clemente, California 92673, (hereinafter referred to as “CITY”). The AUTHORITY and the CITY are sometimes referred to individual as PARTY and collectively as PARTIES.
RECITALS:
WHEREAS, AUTHORITY, is a public agency established under the laws of the State of California to plan, finance, and manage transportation-related programs and improvements in Orange County, and has an interest in supporting public safety and efficient rail operations through the funding and oversight of transportation projects; and WHEREAS, CITY is a municipal corporation and general law city in Orange County, California, with jurisdiction over public rights-of-way within its boundaries; and WHEREAS, AUTHORITY is undertaking a Coastal Rail Stabilization Priority Project to protect the coastal railway infrastructure in Orange County, including the railroad along the San Clemente coast, from threats such as coastal erosion and landslides; and /
WHEREAS, CITY is engaged in Phase 2 of an Offshore Sand Source Investigation (“OSSI”) to identify potential offshore sand borrow sites for beach nourishment and coastal resiliency (“PROJECT”);and WHEREAS, the PROJECT includes vibracore sediment sampling of priority offshore sites identified based on their proximity to the CITY and the likelihood of containing suitable beach-quality sand; and WHEREAS, AUTHORITY has an interest in the results of the PROJECT and desires to support and expand the investigation, if necessary, by providing supplemental funding to potentially support the exploration of an additional offshore sand borrow site at Surfside/Sunset (“Borrow Site”), shown in Exhibit A, titled “Borrow Site Identified for Exploration”, which is beyond the initial priority offshore sites located closest to the City of San Clemente, in the event the initial OSSI sampling does not yield sufficient promising sources of beach quality sand, as part of the AUTHORITY’s Coastal Rail Stabilization efforts; and WHEREAS, the PARTIES desire to enter into this Agreement to cooperatively define their respective roles, responsibilities, and commitments concerning the sand exploring activities related to the Coastal Rail Stabilization Priority Project; and WHEREAS, CITY’s City Council approved this Agreement on _____ day of ______________________ 2026.
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows:
COmplete Agreement
This Agreement, including any attachments incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the term(s) and conditions(s) of this Agreement between AUTHORITY and CITY and it supersedes all prior representations, understandings, and communications as they pertain to the subjects and projects addressed herein. The invalidity in whole or in part of any term or condition of this Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The above referenced Recitals are true and correct and are incorporated by reference herein. This Agreement in no way invalidates or supersedes Cooperative Agreement No. C-5-4416.
AUTHORITYS’ failure to insist on any instance(s) of CITY’s performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY’s right to such performance or to future performance of such term(s) or condition(s), and CITY’s obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized representative of AUTHORITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement.
CITY’s failure to insist on any instance(s) of AUTHORITY’s performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY’s right to such performance or to future performance of such term(s) or condition(s), and AUTHORITY’s obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon CITY except when specifically confirmed in writing by an authorized representative of CITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement.
SCOPE OF AGREEMENT
This Agreement specifies the roles and responsibilities of the Parties as they pertain to the subjects and projects addressed herein. Both AUTHORITY and CITY agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any other supplemental agreements that may be required to facilitate purposes thereof.
RESPONSIBILITIES OF AUTHORITY
AUTHORITY agrees to the following responsibilities for PROJECT:
Provide funding for a Phase 2 exploration of an additional offshore sand borrow site beyond the priority offshore sites covered by the CITY’s initial OSSI. AUTHORITY will fund additional investigation of at the offshore Surfside/Sunset Borrow Site, which has a high probability of finding additional suitable sand. Such funding shall cover the costs of the consultant services (e.g. Coastal Frontiers or other contractor hired by the CITY) and all associated field work expenses for the additional vibracore sampling and analysis at the additional site within AUTHORITY’s funding contribution. The total funding contribution by the AUTHORITY for this expanded exploration effort shall not exceed One Hundred Twenty Thousand Dollars ($120,000), unless otherwise agreed in writing by both PARTIES.
Reimburse the CITY for the actual costs incurred in performing the additional sand exploration activities funded by the AUTHORITY, up to the not-to-exceed amount stated above.
RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
Serve as the lead agency for the Phase 2 OSSI and manage the overall project, including the management of the chosen consultants and contractors, scheduling of vibracore sampling activities, and obtaining any necessary permits for conducting the offshore sediment sampling.
Designate a project manager or staff to organize regular check-in meetings with AUTHORITY’s representative to discuss project status preliminary results, and next steps.
Ensure that the PROJECT (including any additional sites funded by AUTHORITY under this Agreement) is carried out in accordance with the grant requirements of the California Coastal Commission and all applicable laws and regulations.
Determine or have its Consultant determine the additional offshore site will be explored under this Agreement. CITY shall promptly take all necessary steps to authorize and arrange for its consultant or contractor to perform the additional vibracore sampling and analysis from the additional offshore Borrow Site.
Provide the AUTHORITY with all data, findings, and reports resulting from the PROJECT any additional site explorations funded under this Agreement. This includes, but is not limited to:
Raw and processed data from vibracore samples;
Laboratory analysis results (such as grain size distribution and other sediment quality parameters); Geotechnical or geological reports, recommendations, maps of borrow site locations, volume estimates of suitable sand (if determined); Any interim or final reports prepared by the consultant.
PARTIES intend that AUTHORITY and CITY will be the sole beneficiaries of the sources of sand identified under the Phase 2 OSSI study, but acknowledge that the decision of who benefits will be out side of their control.
CITY shall deliver a copy of the final Phase 2 OSSI report (inclusive of findings from additional sites, if any) to the AUTHORITY upon completion.
Ensure that all necessary environmental reviews, permits, and approvals are obtained for the Phase 2 OSSI and any AUTHORITY-funded additional exploration. If the expansion to an additional site requires notification to or approval from any regulatory body, CITY will take the lead in securing such approval, with support from AUTHORITY as noted above.
CITY shall conduct all sand exploration activities in a manner that minimizes environmental impact and complies with conditions of permits (e.g., seasonal restrictions for marine wildlife, turbidity controls, etc.). Any mitigation measures required for the sampling activities will be implemented by the CITY or its contractor.
Use funds provided by the AUTHORITY under this Agreement exclusively for the purpose of conducting the additional sand exploration activities contemplated by this Agreement. CITY, or its consultant, shall track costs of such activities separately from the grant-funded portion of the Phase 2 OSSI.
CITY shall not exceed the funding amount committed by AUTHORITY without obtaining prior written approval from the AUTHORITY in the form of an amendment to his agreement. Any cost overruns beyond the AUTHORITY’s commitment shall be the CITY’s responsibility unless otherwise agreed in writing.
To prepare and submit to AUTHORITY a monthly invoice with supporting documentation up to the amount of One Hundred Twenty Thousand Dollars ($120,000.00). CITY’s invoices shall include allowable PROJECT costs incurred and paid for by CITY for the applicable period. The invoices submitted by CITY shall be signed by an authorized agent who can duly certify the accuracy of the included information. CITY’s invoices shall include the following information:
Agreement Number CXXXXX;
The time period covered by the invoice;
Progress Report which includes a detailed description of the progress of the PROJECT; Such other information as requested by AUTHORITY;
Invoice Certification signed by an authorized representative of CITY; Certification statement shall be as follows:
“I hereby certify that to the best of our knowledge based on currently available information and subject to the impact of additional information that may become available in the future; invoice(s) dated _____ for the period covering _____ to _____ are true, complete and correct statements of reimbursable costs and progress. The backup information included with the invoices is true complete and correct in all material aspects. All payments due and owing to subcontractors and suppliers have been made. Timely payments will be made to subcontractors and suppliers from proceeds of the payment covered by the certification. The invoices do not include any amounts which Southern California Regional Rail Authority (SCRRA) intends to withhold or retain from a subcontractor or supplier unless so identified on the invoices.”
DELEGATED AUTHORITY
The actions required to be taken by AUTHORITY in the implementation of this Agreement are delegated to its Chief Executive Officer or designee and the actions required to be taken by CITY in the implementation of this Agreement are delegated to its City Manager or designee.
AUDIT AND INSPECTION
AUTHORITY and CITY shall maintain a complete set of records in accordance with generally accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and other data and records of CITY for a period of four (4) years after final payment, or until any on-going audit is completed. For purposes of audit, the date of completion of this Agreement shall be the date of CITY’s payment of AUTHORITY’s final billing (so noted on the invoice) under this Agreement. AUTHORITY shall have the right to reproduce any such books, records, and accounts. The above provision with respect to audits shall extend to and/or be included in contracts with CITY’s contractor.
MAXIMUM OBLIGATION
Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CITY mutually agree that AUTHORITY’s maximum cumulative payment obligation hereunder shall be One Hundred Twenty Thousand Dollars ($120,000.00), unless agreed to and amended by both PARTIES.
INDEMNIFICATION
To the fullest extent permitted by law, CITY shall defend (at CITY’s sole cost and expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold harmless AUTHORITY, its officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (CITY’s employees included), for damage to property, including property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance, by the negligent acts, omissions or willful misconduct of CITY, its officers, directors, employees or agents in connection with or arising out of the performance of this Agreement.
To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY’s sole cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY, its officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (AUTHORITY’s employees included), for damage to property, including property owned by CITY, or from any violation of any federal, state, or local law or ordinance, by the negligent acts, omissions or willful misconduct of AUTHORITY, its officers, directors, employees or agents in connection with or arising out of the performance of this Agreement.
The indemnification and defense obligations of this Agreement shall survive its expiration or termination.
ADDITIONAL PROVISIONS:
Term of Agreement: This Agreement shall be effective as of the Effective Date and shall be in full force and effect through XXXXXXXXX.
Termination: In the event, that either Party defaults in the performance of their obligations under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall have the option to terminate this Agreement upon thirty (30) days prior written notice to the other Party.
Termination for Convenience: Either Party may terminate this Agreement for its convenience by providing thirty (30) days prior written notice of its intent to terminate for convenience to the other Party. In the event of termination of this Agreement by either Party, AUTHORITY shall be responsible for paying all PROJECT costs incurred by the CITY prior to the date of termination.
Compliance: AUTHORITY and CITY shall comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations of any governmental authority having jurisdiction over the PROJECT.
Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to execute this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties hereto are formally bound to the provisions of this Agreement.
Obligations To Comply with Law: Nothing herein shall be deemed nor construed to authorize or require any Party to issue bonds, notes, or other evidence of indebtedness under the terms, in amounts, or for purposes other than as authorized by local, state, or federal law.
Amendments: This Agreement may be amended in writing at any time by the mutual consent of both Parties. No amendment shall have any force or effect unless executed in writing by both Parties.
Severability: If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Counterparts of Agreement: This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile and/or email signatures will be permitted.
Force Majeure: Either Party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire, flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of such cause is presented to the other Party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
Assignment: Neither this Agreement, nor any of the Parties’ rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either Party without the prior written consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
Governing Law: The laws of the State of California and applicable local and federal laws, regulations, and guidelines shall govern this Agreement. The Parties further agree that any action or proceeding brought to enforce the terms and conditions of this Agreement shall be maintained in a court of competent jurisdiction in Orange County, California.
Litigation Fees: Should litigation arise out of this Agreement for the performance thereof, the court shall award costs and expenses, including attorney’s fees, to the prevailing Party.
Notices: Any notices, requests, or demands made between the Parties pursuant to this Agreement are to be directed as follows:
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To CITY:
To AUTHORITY:
City of San Clemente
Orange County Transportation Authority
910 Calle Negocio
San Clemente, California 92673
Attention: Leslea Meyerhoff
Coastal Administrator
Tel: (760) 845 - 8028
Email: [email protected]
Cc: Laura Campagnolo, City Clerk
Email: [email protected]
550 South Main Street
P. O. Box 14184
Orange, CA 92863-1584
Attention: Megan Bornman
Senior Contract Administrator
Tel: (714) 560-5064
Email: [email protected]
cc: Jason Lee, Project Manager,
Tel: (714) 560-5833
Email: [email protected]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. CXXXXX to be executed as of the date of the last signature below.
CITY OF SAN CLEMENTE ORANGE COUNTY TRANSPORTATION AUTHORITY By: By:
Andy Hall Lydia Bilynsky
City Manager Department Manager, Capital Projects
Attest: Approved as to Form:
By: By:
Laura Campagnolo James M. Donich
City Clerk General Counsel
Approved as to form
By: ______________________
Elizabeth A. Mitchell
City Attorney
Exhibit:
EXHIBIT A - Borrow Site Identified for Exploration
Exhibit A
Borrow Site Identified for Exploration
Mott MacDonald RestrictedMott MacDonald Restricted
Mott MacDonald Restricted
Mott MacDonald Restricted
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