HomeMy WebLinkAboutC-8214-1 - Cooperative Agreement for Lower Santa Ana River Sand ManagementAgreement MA -080-16012164
COOPERATIVE AGREEMENT BETWEEN THE
ORANGE COUNTY FLOOD CONTROL DISTIRCT
AND THE
CITY OF NEWPORT BEACH
FOR THE
LOWER SANTA ANA RIVER SAND MANAGEMENT PROJECT
This Cooperative Agreement ("AGREEMENT") is entered into the u -P" day of
J 4wt/ 2016, by and between the Orange County Flood Control District, a
political sul4division of the State of California ("DISTRICT'), and the City of Newport Beach, a
municipal corporation and charter city in the State of California, ("CITY"). The DISTRICT and
the CITY are the parties to this AGREEMENT and may sometimes hereinafter be individually
referred to as "PARTY" or jointly as "PARTIES".
WITNESSETH
WHEREAS, the lower Santa Ana River is owned, operated and maintained by the
DISTRICT; and
WHEREAS, sediment accumulates in the lower Santa Ana River delivered from
upstream sources and from the ocean at the river outlet; and
WHEREAS, the Operation, Maintenance, Repair, Replacement and Rehabilitation
Manual for the lower Santa Ana River channel, dated December 1996, prepared by the U.S.
Army Corps of Engineers identifies the design invert elevation and established an upper grade
limit that sediment would be allowed to accumulate to before the sediment must be removed to
the design invert elevation; and
WHEREAS, based on recent topographical surveys, the accumulated sediment in the
lower Santa Ana River between the ocean outlet and approximately 2,200 feet upstream of the
Adams Avenue bridge crossing is at or near the upper grade limit in many areas; and
WHEREAS, the DISTRICT intends to undertake removal of the accumulated sediment
from the lower Santa Ana River and deposit the sediment that is compatible for beach
nourishment to one or more beaches within Orange County, hereinafter referred to as the
"PROJECT"; and
WHEREAS, removal of the sediment is regulated by the California Coastal Commission,
California Department of Fish and Wildlife, Santa Ana Regional Water Quality Control Board,
and the U.S. Army Corps of Engineers (collectively "Resources Agencies"); and
WHEREAS, the Southern California Dredge Material Management Team (SC-DMMT),
the interagency team for the coordinated review of dredging projects and dredging policy issues,
Agreement MA -080-16012164
has approved various potential onshore and nearshore beach disposal sites within Orange
County; and
WHEREAS, the DISTRICT will take the lead for the design, environmental, regulatory
permitting and construction management of the PROJECT; and
WHEREAS, the lowest cost for the DISTRICT, complying with the required
environmental documents and regulatory permits, is to deposit all the suitable material at CITY's
beach shown in Exhibit A as the hashed area designated "Nearshore", attached hereto and
incorporated herein by this reference, as this is the closest beach in need of suitable material to
the PROJECT; and
WHEREAS, the CITY and DISTRICT acknowledge that suitable material is not required
to be deposited at a CITY beach, and the DISTRICT may choose not to deposit any suitable
material at CITY's beach; and
WHEREAS, approved suitable material, also sometimes referred to as compatible sand or
SAND in this AGREEMENT, is defined as material meeting both physical grain size
compatibility and chemical testing in accordance with state and federal regulations for material
to be used for beach nourishment as determined and approved by the SC-DMMT; and
NOW, THEREFORE, it is mutually understood and agreed by DISTRICT and CITY as
follows:
ARTICLE 1. COMPLETE AGREEMENT
This AGREEMENT constitutes the complete and exclusive statement of the terms and
conditions of the AGREEMENT between DISTRICT and CITY and it supersedes all prior
representations, understandings and communications. The invalidity in whole or in part of any
term or condition of this AGREEMENT shall not affect the validity of other terms or conditions.
Changes hereto shall not be binding upon both PARTIES except when specifically confirmed in
writing by an authorized representative of each PARTY.
ARTICLE 2. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities:
A. Allow DISTRICT'S construction contractor, at no cost to CITY, to deposit a maximum
of 1.1 million cubic yards of compatible sand (the "SAND") at CITY'S beach within the
limits shown in Exhibit A as the hashed area designated "Nearshore."
B. Negotiate with DISTRICT on acceptance of additional compatible sand if the DISTRICT
determines that additional compatible sand is found to be within the PROJECT limits that
require removal to meet the PROJECT objectives.
Agreement MA -080-16012164
Newport Beach, CA 92658
B. CITY agrees to indemnify, defend with counsel approved in writing by DISTRICT, and
hold DISTRICT, its elected and appointed officials, officers, employees, agents and those
special districts and agencies which the Orange County Board of Supervisors acts as the
governing Board harmless from any claims, demands or liability of any kind or nature,
including but not limited to personal injury or property damage, arising from or related to
CITY'S acts and/or omissions arising from or related to its performance under this
AGREEMENT.
DISTRICT agrees to indemnify, defend with counsel approved in writing by CITY, and
hold CITY, its elected and appointed officials, officers, employees, directors, agents, and
affiliates, harmless from any claims demands or liability of any kind or nature, including
but not limited to personal injury or property damage, arising from or related to
DISTRICT'S acts and/or omissions arising from or related to its performance under this
AGREEMENT.
For purposes of this subsection (B), the obligations of the PARTIES to prepare the
environmental documents and obtain the regulatory approvals identified in this
AGREEMENT shall be considered the act of the PARTY responsible for each such
environmental document and regulatory approval.
If judgment is entered against DISTRICT and CITY by a court of competent jurisdiction
because of the concurrent active negligence of CITY and/or DISTRICT, CITY and
DISTRICT agree that liability will be apportioned as determined by the court. Neither
PARTY shall request a jury apportionment.
C. DISTRICT and CITY agree that in the performance of their obligations under this
AGREEMENT they shall comply with all applicable federal, state and local laws, statutes
and ordinances and all lawful orders, rules and regulations promulgated thereunder.
D. This AGREEMENT may be terminated upon mutual agreement of the PARTIES prior to
the award of the construction contract of the PROJECT by DISTRICT.
E. This AGREEMENT may be amended in writing by the mutual consent of the PARTIES.
No amendment shall have any force or effect unless executed in writing by the
PARTIES.
F. In any action or proceeding to enforce or interpret any provision of this AGREEMENT or
where any provisions thereof is validly asserted as a defense, each PARTY shall bear its
own attorney's fees, costs and expenses.
Agreement MA -080-16012164
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT on
the dates opposite their respective signatures:
Date: f Y
Date: "1 -A -"b
Date: 5/30A
APPROVED AS TO FORM
By:
Aaron C. Hkp, City Attorney
City of Newport Beach 8130
Date: —7-2-6—((o
CITY OF NEWPORT BEACH,
a municipal corporation and charter city in the State
of C rnia
By
r, ity of N ortBea
Attest: „ 4,
, p
City Clerk of the City of Newport Beach
ORANGE COUNTY FLOOD CONTROL
DISTRICT,
a body co • orate and poli
By .•�� Lf�'6
dh4ir/of the Board of Supervisors
Orange County, CA
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:%
Date: -7-
Clerk of the Board o Supervisors
County of orange, California
Date: S-2ZZ1-�
APPROVED AS TO FORM
Office of the County Counsel
Orange County, California
By: i2
Deputy
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