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HomeMy WebLinkAbout20C - AA - DELHI CHANNEL PROJREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 15, 2016 TITLE: APPROVE APPROPRIATION ADJUSTMENTS FOR THE SANTA ANA - DELHI CHANNEL DIVERSION PROJECT (PROJECT NO. 16-6467) (STRATEGIC PLAN NO. 6, 1G) CITY MAMA ER RECOMMENDED ACTION s • • 71 As Recommended 0 As Amended El Ordinance on 1a' Reading ❑ Ordinance on 2"a Reading © Implementing Resolution C7 Set Public Hearing For CONTINUED TO FILE NUMBER Approve an Appropriation Adjustment recognizing the receipt of funds, to be deposited into the Federal Clean Water Enterprise Fund revenue account and appropriating the same into the Federal Clean Water Enterprise Fund expenditure account, from the following participating agencies in the stated amounts: a. Orange County Flood Control District $1,600,000 b. City of Newport Beach $1,500,000 c. Irvine Ranch Water District (design and construction only) $195,000 $3,295,000 Approve an Appropriation Adjustment to carry forward a portion of the Fiscal Year 2013-14 project appropriation, in the amount of $1,056,950 from the Federal Clean Water Enterprise Fund prior year fund balance, and appropriate the same amount into the Federal Clean Water District Fund expenditure account, to complete the City of Santa Ana's share of the project funding. Approve an Appropriation Adjustment recognizing the receipt of $1,000,000 from the Orange County Water District, due upon filing the project Notice of Completion, to be deposited into the Federal Clean Water Enterprise Fund revenue account and, appropriating the same amount into Federal Clean Water Enterprise Fund expenditure account. DISCUSSION The Santa Ana -Delhi Diversion project is a regional collaboration between the City of Santa Ana, the County of Orange (OC), the Orange County Flood Control District (OCFCD), and the cities of Newport Beach and Costa Mesa. The project is located south of SR -73 and east of SR -55 in the Newport Beach Golf Course (Exhibit 1). The goal of the Delhi project is to improve the water quality in Newport Bay and increase regional groundwater supplies. The City of Santa Ana will greatly benefit from this project because it will help meet federal storm water program requirements mandated by the California State Water Resources Control Board. Compliance with these federal requirements would otherwise prove to be very costly to Santa Ana. 20C-1 Approve Appropriation Adjustments for Santa Ana -Delhi Channel Diversion Project November 15, 2016 Page 2 The City of Santa Ana is the lead agency for the design and construction of the project. Upon completion of the project, the parties will jointly share in the future costs of the operation and long-term maintenance of the project which will be performed by both OC and OCFCD. Those maintenance costs and related funding are included in the total project funding commitments detailed below. The cost of the Santa Ana Delhi Diversion project design, construction, and 20 -year maintenance is estimated at $9.4 million. In addition to a $2,572,875 Measure M2 Grant from the Orange County Transportation Authority, the cooperative agreement, approved by the City Council on July 5, 2016, identifies the cost share for each participating party as follows (Exhibit 2): FUNDING SOURCE SUBTOTAL COMMITMENT Project Specific Grant .. .... ....... • Measure M2 (FY 2013-14 CIP) $2,572,875 $2,572,875 City of Santa Ana $1,900,000 Orange County Water District (Construction only via Escrow) $1,000,000 $1,000,000 Total Commitments 1 $9,367,875 The City of Santa Ana's share of $1,900,000 is comprised of the following appropriations in the Federal Clean Water Protection Enterprise: ACCOUNT NO. AUTHORITY AMOUNT 05717640-66220 Approved in FY 2015-16 CIP $343,050 05717640-66220 Appropriation Adjustment No. 2016-103 A roved b Council, April 19, 2016 $500,000 05717640-66220 Adjustment - Upon Council approval $1,056,950 _Appropriation TOTAL CITY OF SANTA ANA SHARE: $1,900,000 As referenced above, contributions from the participating agencies totaling $3,895,000 will be deposited and classified in a liability account until the project expenditures are incurred. The Orange County Water District (OCWD) share of $1,000,000 is not due to be submitted until the project Notice of Completion has been filed. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G 20Ci-2 Approve Appropriation Adjustments for Santa Ana -Delhi Channel Diversion Project November 15, 2016 Page 3 (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act (CEQA), a Mitigated Negative Declaration (MND) was prepared for the Santa Ana Delhi Channel Diversion Project (Exhibit 3). As noticed in the Orange County Register on January 27, 2016, the public review period for the MND was from January 27, 2016 to February 25, 2016. Documentation was available for viewing on the City website, the Public Works Counter in City Hall, the Santa Ana Main Library, and the Orange County Public Library, Mesa Verde Branch. Written comments on the MND were received from Orange County Public Works, Department of Transportation (Caltrans), Orange County Water District, John Wayne Airport, and the Santa Ana Regional Water Quality Control Board. The comments did not present issues that were substantive in nature or resulted in changes to any MND findings. All comments have been addressed in the Response to Comments document to the MND. The proposed project would have a less than significant impact on the environment. As planned, the Delhi Project would eliminate dry weather flows in the Santa Ana Delhi Channel to help improve wafter quality in downstream receiving waters including Upper Newport Bay. FISCAL IMPACT The total participating agency contribution for this project is $3,895,000. On April 19, 2016, Council approved the appropriation of $600,000 from the City of Costa Mesa. Approval of the recommended Appropriation Adjustment will allow additional funds in the amount of $3,295,000 to be deposited into the Delhi Diversion Project liability account (No. 05701001-25002) as they are received during Fiscal Year 2016-17. The $600,000 in funds (City of Costa Mesa) is available in the Balance Carry Forward in the FY 2016-17 to complete the $3,895,000 project contribution. After project expenditures are incurred, revenues in the amount of $3,895,000 will be recognized and appropriated for capital expenditure in the Federal Clean Water Protection Enterprise Fund in the following revenue and expenditure accounts: PARTICIPATING AGENCY AMOUNT REVENUE ACCOUNT EXPENDITURE ACCOUNT City of Costa Mesa $600,000 05717002-57013 05717660-66220 County of Orange and OC Flood Control District $1,600,000 05717002-57014 05717660-66220 City of Newport Beach $1,500,000 05717002-57017 05717660-66220 Irvine Ranch Water District $195,000 05717002-57016 05717660-66220 TOTAL PARTICIPATING AGENCY SHARE $3,895,000 The City of Santa Ana's project contribution of $1,900,000 is comprised of $343,050 budgeted in the Fiscal Year 2015-16 Capital Improvement Program in the Federal Clean Water Protection Enterprise Fund Capital Expenditures account (No. 05717640-66220) and $500,000 appropriated by Council action on April 19, 2016, into the same account (Appropriation Adjustment No. 2016-103). $1,100,000 was budgeted in Fiscal Year 2013-14 in the Federal Clean Water Protection Enterprise Fund Capital Expenditures account (No. 05717640-66220) for this project; however, only $1,056,950 is needed to complete the City's share. 20C-3 Approve Appropriation Adjustments for Santa Ana -Delhi Channel Diversion Project November 15, 2016 Page 4 Upon approval of the recommended appropriation adjustment, $1,056,950 will be recognized from the Federal Clean Water Enterprise Fund prior year fund balance (Account No. 05717002-50001) and appropriated into the Federal Clean Water Protection Enterprise Fund Delhi Diversion Project expenditure account (No. 05717640-66220). Maintenance costs related to the Project (20 -year duration) will be brought back for Council Consideration after completion of the Project to identify the spending plan by fiscal year along with the related amounts. Estimated Project spending plan is as follows: FISCAL YEAR AMOUNT 2016-17 $1,500,000 2017-18 $5,000,000 2018-19 $1,867,875 2018-19 (20 -year Maintenance $1,000,000 TOTAL PROJECT COST: $9,367,875 Estimated Project expenditures are as follows: DELHI PROJECT EXPENDITURE BUDGET AMOUNT Project Administration, Environmental, Permits $763,540 Construction $5,736,075 Construction Management $409,920 Inspection, Testing $433,540 Construction Contingency $1,024,800 20 -year Maintenance $1,000,000 TOTAL PROJECT COST: $9,367,875 Fred Mousavlpour rExecuti� Executive Director Finance Public Works Agency FM/EWG/TC/MG AS TO FUNDS & ACCOUNTS: Gutierrez Exhibits: 1. Location Map 2. Copy of Cooperative Agreement with Participating Agencies 3. Mitigated Negative Declaration 20C-4 Services Agency PAULARINO AV % Proposed PipellnetSawer Connection — BAKER ST \ Mw r aAu4ARrnro cri.aNu�t. (E0asy �r��r�.�Yi1i17ee�aaaxll�inrEa1114Ay�� `��p � r: ♦�`�$`'� w A�tP• tat W& C+� IGN — O ARLINGTON DRWAYNE N PROPOSED L@fiend �'tiy DIVERSION ■■I■ Proposed Diversion P@peline STRUCTURE �� r• �tt�/4 `\ \ 0zN 4..a R>t■ txlstingSeweriine /* � 1�`p��` �°.« �y � � 004.0 0CFCD Crninage i ilities %y SA�µ� '+ = `_ti+✓' G — City Boundaries Location Map EXHIBIT 1 SANTA ANA P�1City Council Agenda Date Project No. 16-6467: Santa Ana Delhi PURIICWORRSACENCY UNovember 15 20161 Channel Diversion - AA 20C-5 20C-6 A-2016-180 EXHIBIT 2 November 15, 2016 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 City of Santa Ana Orange County Flood Control District County of Orange City of Newport Beach City of Costa Mesa Orange County Water District Irvine Ranch Water District 20C-7 AGREEMENT This Santa Ana -Delhi Channel Diversion Project Agreement ("Agreement") is made as of this _ day of , 201_, ("Effective Date") by and among The City of Santa Ana, a California charter city ("SANTA ANA"), The Orange County Flood Control District, a body corporate and politic ("OCFCD"), The County of Orange, a political subdivision of the State of California ("COUNTY"), The City of Newport Beach, a California municipal and charter city ("NEWPORT BEACH"), The City of Costa Mesa, a California municipal corporation ("COSTA MESA"), The Orange County Water District, a subdivision of the State of California organized under Chapter 924 of the Statutes of 1933, as amended ("OCVVD' ), and The Irvine Ranch Water District, a. California water district organized under Section 34000 et seq. of the California Water Code (" IRWD"); which are sometimes individually referred to as "Party," or collectively referred to as "Parties." The following definitions shall hereinafter apply: Additional Annual O&M Costs - a Funding Party's proportionate share as specified in Exhibit C2 to cover annual O&M expenses upon exhaustion of the Initial O&M Deposit (as defined below). Additional Participant - a third parry point source discharger in the Watershed Area or other Project beneficiary that has entered into an agreement signed by all Parties committing its contribution toward the 0&M costs in order to receive regulatory compliance, offsets or credits offered by the Project. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 2 of 69 20C-8 Airport Director — the Director of John Wayne Airport Approved Plans - those Project plans, specifications, and engineering estimates ("PS&E" see definition below) which have been approved through the County Property Permit process. Approved Plans shall also include those PS&E revisions and/or contract change orders approved in writing by the Project Representatives (as defined in Section 1). Bond - the faithful performance bond, payment bond, or warranty bond required to be provided by the Contractor pursuant to this Agreement. (collectively "Bonds) CPP - the process to obtain a County Property Permit from the County of Orange. CEQA — the California Environmental Quality Act (California Public Resources Code § 21000 et seq.). Channel - the Santa Ana -Delhi Diversion Channel designated OCFCD Facility No. FO 1. Cities - refers to SANTA ANA, NEWPORT BEACH, and COSTA MESA collectively Claims - liabilities, actions, suits, claims, demands, losses, costs, tortious, contractual, condemnation, inverse condemnation, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees; including those arising from injuries to or death of persons, for damage to property, or liability of any kind or nature. Conceptual Report — that Diversion Structure Water Capture and Reuse Structure Concept Feasibility Study dated July 8, 2013 which reviewed the technical and economic feasibility of reducing pollutants inflows and trash to the Channel. Contractor - that contractor and its subcontractors that have entered into a construction contract with SANTA ANA for the Project. Days — unless otherwise specified to the contrary, "days" in this Agreement shall mean business days as defined by the City of Santa Ana. Director — the Director of OC Public Works or designee. Diversion Structure — an urban discharge diversion system as may be constructed near the intersection of Mesa Drive and Irvine Avenue as shown on the attached Exhibit B (hereinafter referred to as the "Preliminary Plans"), which shall include features that Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 3 of 69 20C-9 extend across a segment of Channel designed to divert trash and debris into a containment area, while conveying low -flows where pollutants will be captured, and further discharged into an Orange County Sanitation District trunk line for conveyance to its sanitary sewer treatment plant and thereafter to the OCWD Groundwater Replenishment System. The Diversion Structure will modify the existing Channel with a concrete weir crossing the channel bottom and alter approximately 100 feet of the Channel's north wall to accommodate fixture of a debris boom, inlet and bypass outlet structures. Estimated Cost - the itemized estimate of Project Capital Costs and O&M expenses listed on Exhibit C3 from an Opinion of Probable Construction Cost referenced as "Engineer's Estimate 15-058" by AECOM dated July 24, 2015 based upon 60% Design Plans. Facility (sometimes also referred to as the "Facilities" or "Project Facilities") — final Project (as defined below) improvements constructed in accordance with the Approved Plans, which shall include the Diversion Structure, related pumps, pipelines and features necessary for operations. Flood Control Act - Orange County Flood Control Act set forth in California uncodified Water Code, Act 5682, section 2, also referred to as Water Code App. Sections 36-1 et seq, also referred to as Chapter 723 of the State of California Statutes of 1927, as amended. Force Majeure Event - those events specified in Section 2.5.4 that materially and adversely interfere with or increase the costs of performing SANTA ANA's obligations hereunder, provided that such event (or the effects of such event) could not have been avoided by SANTA ANA's use of reasonable effort. Funding Partner — SANTA ANA, NEWPORT BEACH, COSTA MESA, OCFCD, COUNTY or IRWD as shown on Exhibit C2 (collectively the "Funding Partners"). Golf Lessee — Public golf course operator, Newport Beach Golf Course, LLC, its successors or assigns, which leases a portion of County land, under the purview of John Wayne Airport that may be impacted by the Project. Grant - that Measure M2 Environmental Cleanup Program Grant from the Orange County Transportation Authority awarded to SANTA ANA in the amount of TWO MILLION, FIVE -HUNDRED SEVENTY-TWO THOUSAND, EIGHT HUNDRED, and SEVENTY-FIVE DOLLARS ($2,572,875) for Project Capital Costs. Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 4 of 69 20C-10 HM -1 - hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law existing prior to the Project and not disturbed by the Project. HM -2 - hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the Project or as a result of the Project. HM Management Activities - management activities related to either HM -1 or HM -2 including, without limitation, any necessary manifest requirements, clean-up and disposal facility designations. Initial O&M Deposit - a transfer of ONE MILLION DOLLARS ($1,000,000) from SANTA ANA to the O&M Account maintained by OCFCD in accordance with the terns herein John Wayne Airport ("JWA" or "Airport") — an airport established by ordinance of the County of Orange Board of Supervisors pursuant to the laws of the State of California and the federal government, which is operated on an enterprise basis at no cost to the taxpayer. Although JWA is a department of the County of Orange, the Parties agree JWA is not a Funding Partner to this Agreement, and as such is not required to financially contribute to the Project, associated O&M or Reserve Fund, but retains rights under this Agreement as a Project Representative and as otherwise provided herein. NPDES — National Pollutant Discharge Elimination System stormwater permit program authorized by Section 402 of the Clean Water Act, 33 U.S.C. §1251 et seq. of 1972, as amended, also referred to as a Municipal Separate Storm Sewer System ("MS4") Permit. OCSD - the Orange County Sanitation District. OCWD Project Contribution - a one-time, lump -sum payment from Orange County Water District (OCWD) of ONE MILLION DOLLARS and 00/100 ($1,000,000.00) toward the Project construction costs. O&M — operation and maintenance. O&M Contractor — a contractor under contract with OCFCD or COSTA MESA to perform operation and maintenance on the Facility or portion thereof. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-11 Page 5 of 69 O&M Fund - monies deposited into the 0&M Account in amounts paid in accordance with the terms herein, to be used by OCFCD or COSTA MESA for Facility operation, maintenance, and repair or replacement required clue to a catastrophic event. O&M Account - a separate account for the Initial O&M Deposit and OCFCD O&M Fund established by OCFCD and maintained consistent with all applicable OCFCD/COUNTY or other governmental laws, rules and regulations pertaining thereto, to receive from SANTA ANA a transfer of $1,000,000 from the Project Fund (e.g. the Initial O&M Deposit), Additional Annual O&M Costs and other monies consistent with the purposes of the O&M Fund. O&M Manual - the Operation and Maintenance Manual for the Facility and components thereof. Oversight Inspector - a qualified OC Public Works inspector or representative assigned through the CPP process by OCFCD/County to verify that construction of the Diversion Structure and other Facilities on OCFCD and COUNTY right-of-way are accomplished in a good, workman -like manner and in accordance with the Approved Plans per OCFCD and COUNTY standard. NEPA - National Environmental Policy Act, 42 U.S,C § 4231 et seq. Project — the Santa Ana -Delhi Channel Diversion Project is a regional water quality project intended to protect Upper Newport Bay from pollutant loadings generated by discharge flows, debris, and trash from the Channel and its watershed, and includes all right-of-way necessary for its implementation. The Project will remove dry -weather channel flows from the Channel watershed with the Diversion Structure, as further defined in Recital B. The Project shall include work within the limits indicated on Exhibit A performed concerning design, construction, and O&M of the Project and Facilities. Project Capital Costs — those Project costs referenced in Exhibit C3 including, but not limited to, design engineering, permits, right-of-way, easements, project administration, consultant costs, environmental reports, costs associated with CEQA, NEPA, Resource Agency or Regulatory compliance, surveying,investigation, testing, monitoring, construction, equipment, materials, contracts, warranties, attorney fees, Newport Beach Golf Course lost revenue, costs for defense of CEQA/NEPA lawsuit and costs for hazardous material management activities related to HM -2 as defined in Section 8 (Hazardous Material). O&M costs are not a put of the Project Capital Costs. Santa Aria -Delhi Channel Diversion Project Agreement D15-013 Page 6 of 69 20C-12 Project Costs — those actual costs as estimated and referenced in Exhibit Cl and Exhibit C3 covering all costs associated with the Project, Project Fund - a separate account established by SANTA ANA and maintained consistent with all applicable SANTA ANA or other governmental laws, rules and regulations pertaining thereto, wherein SANTA ANA shall deposit amounts paid by the Parties for Project Costs. PS&E - Project plans, specifications, and engineering estimates agreeable to the Project Representatives (as defined in Section 1) which have been approved through the County Property Permit process. Regional Board — the Santa Ana Regional Water Quality Control Board. Regulations — those federal and state regulations or requirements applicable to point source discharges, as more particularly described in Recital A, which are prescribed by the Santa Ana Regional Water Quality Control Board, California State Water Resources Control Board, and/or United States Environmental Protection Agency that have jurisdiction within the Santa Ana -Delhi drainage system depicted on Exhibit A. Reserve Fund - After exhaustion of the Initial O&M Deposit, monies deposited into the O&M Funds which are designated for reserve fund purposes as specified in Section 3.7.9. to be used by OCFCD and/or COSTA MESA to repair or replace the Facilities, Project -related Channel improvements and/or appurtenances, or portions thereof damaged due to a catastrophic event Resource Agency(ies) — each one of the following entities or collectively, all of them: U.S. Army Corps of Engineers, U.S, Fish and Wildlife Service, Federal Emergency Management Agency, California Department of Fish and Wildlife, Santa Ana Regional Water Quality Control Board, and Coastal Commission. Sponsor - OCFCD, the COUNTY, COSTA MESA, NEWPORT BEACH, or SANTA ANA (collectively the "Sponsors") and which shall include IRWD in accordance with Exhibit C2b. Sponsorship Share - a Sponsor's share of participation in funding, credits and offsets pursuant this Agreement and/or the Project, based upon the percentages denoted on Exhibit C2a and C2b. State Board — the California State Water Resources Control Board. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-13 Page 7 of 69 TCE - temporary construction easement. Term - unless otherwise terminated or extended, this Agreement shall be effective for an initial term of twenty-five years commencing on the Effective Date, and shall automatically renew for ten year terms thereafter. TMDL - Total Maximum Daily Loads. Watershed Drainage Area - the impacted watershed area within Project limits shown on Exhibit A. RECITALS A. The Parties are subject to regulations or requirements applicable to point source discharges for bacteria, metals, nutrients, trash, selenium and other constituents; including but not limited to, TMDL, applicable provisions of dewatering permits and time schedule orders the Municipal Separate Storm Sewer System (" MS4 Permit, and/or other discharge permits, waste discharge requirements,or discharge -related orders. In a collaborative effort SANTA ANA, NEWPORT BEACH, and COSTA MESA (collectively, "Cities") pursued satisfying current and future NPDES requirements and proposed trash amendment to MS4 Pernit requirements (see Recital Q) through the development of a watershed regional diversion project. The Project requires OCFCD and COUNTY cooperation in order for the Diversion Structure component to be constructed, operated and maintained in and about the Channel; a portion of the land is under the purview of JWA. B. The Parties, other than OCWD and IRWD, caused the Diversion Structure Water Capture and Reuse Structure Concept Feasibility Study dated July 8, 2013 to be conducted in order to review the technical and economic feasibility of reducing pollutants inflows and trash to the Channel ("Conceptual Report"), Based upon the Conceptual Report findings, possible locations for the Diversion Structure system and the Project limits shown on Exhibits A-1 and AA2 within the impacted watershed area (i.e., the Watershed Drainage Area) were proposed and alternative Facility components were discussed. C. The proposed Project is to be designed for the benefit of the Parties, who occupy or operate within a region of approximately 11,120 acres, by diverting dry -weather flows and trash from the Santa Ana -Delhi drainage system shown in Exhibit A. D. It is contemplated that the Diversion Structure will be constructed upon land owned by COUNTY, under the purview of JWA, Part of this County -land is leased to the "Golf Lessee," and other parts are utilized for OCFCD's Channel and flood control purposes in accordance with the Flood Control Act. E. OCFCD, COUNTY and JWA are amenable to accommodating the Diversion Structure and appurtenant components upon their right-of-way in accordance with the terns herein, provided that the Project: (1) will not violate the COUNTY's vesting deed restrictions or Santa Ana -Delhi Channel Diversion Project Agreement M5-013 Page 8 of 69 20C-14 create a nuisance, (2) will not interfere with flood control or Airport operations or operational requirements, (3) will minimize its effect on Golf Lessee, and (4) mitigates and compensates JWA and/or Golf Lessee for any negative impact due to the Project. F. The Project's proposed plan as shown on Exhibit B (Preliminary Plan) is to install, operate, and maintain pipelines within public street right-of-way The Cities are amenable to accommodating pipelines and other necessary Project Facilities within their respective public street right-of-way in furtherance of the Project. G. SANTA ANA will be the lead agency for the Project under CEQA, and if applicable NEPA, as well as being responsible for the PS&E, acquisition of property rights, relocations, necessary permits and easements, and construction administration necessary for the Project. H. The Parties anticipate the Project costs to be about $9,367,875 ("Estimated Cost") based upon the itemized estimated expenses listed on Exhibit C3. I. The Estimated Cost amount includes an estimate of long -tern O&M expenses projected over twenty years in the amount of ONE MILLION DOLLARS ($1,000,000). J. SANTA ANA has been awarded a Measure M2 Environmental Cleanup Program Grant from the Orange County Transportation Authority in the amount of TWO MILLION, FIVE -HUNDRED SEVENTY-TWO THOUSAND, EIGHT HUNDRED, and SEVENTY-FIVE DOLLARS ($2,572,875) ("Grant"), which shall be used for the capital construction costs associated with the Project. R. The Project proposes to divert trash and debris into a containment area while conveying dry -weather flows into an Orange County Sanitation District trunk main which serves an OCSD sanitary sewer treatment plant and thereafter to the OCWD Groundwater Replenishment System. In furtherance of the Project, OCWD has offered to pay a one-time sum of ONE MILLION DOLLARS ($1,000,000) toward the construction costs pursuant to the terms and conditions provided herein. SANTA ANA will accept and expend said funds from OCWD for the construction of the PROJECT. L. SANTA ANA is committing its resources and is agreeable to contribute toward the Project design, construction, and O&M. SANTA ANA agrees to make one lamp sum payment for their proportionate share in the costs for the design, construction long-term O&M costs in an aggregate amount not to exceed of ONE MILLION, NINE -HUNDRED THOUSAND DOLLARS ($1,900,000), as denoted in Exhibit C1. M. OCFCD and COUNTY are agreeable to contribute toward Project design, construction, and O&M. Per the terms of this Agreement, OCFCD and COUNTY agrees to make one lump sum payment of their joint proportionate share in the costs for the design and construction, and long-term O&M in an aggregate amount not to exceed ONE MILLION, SIX - HUNDRED, THOUSAND DOLLARS ($1,600,000), as denoted in Exhibit Cl. OCFCD is agreeable to accept certain ownership, O&M responsibilities, in accordance with the terms herein, for the portion of the Facilities located upon OCFCD, COUNTY and/or JWA right-of- way. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 9 of 69 20C-15 N. NEWPORT BEACH is agreeable to contribute toward the Project construction and make a lump sum payment in the amount of ONE MILLION, FIVE -HUNDRED THOUSAND DOLLARS ($1,500,000), as denoted in Exhibit Cl. 0. COSTA MESA is agreeable to contribute toward Project design, construction, and O&M. COSTA MESA agrees to make one lump sum payment for it proportionate share in the costs for the design, construction, and long-term O&M costs in an aggregate amount not to exceed SIX -HUNDRED THOUSAND DOLLARS ($600,000), as denoted in Exhibit Cl. COSTA MESA agrees to accept certain ownership, O&M responsibilities, in accordance with the terms herein, for the Facility pipelines located outside of OCFCD, COUNTY and/or JWA right-of-way. P, IRWD discharges pumped groundwater to the Channel from wells pursuant to certain permits issued by COUNTY. In consideration of the effect of the quantity of such discharges upon the design and capacity of the Project, IRWD is willing to contribute one lump sum payment in the amount of ONE HUNDRED AND NINETY-FIVE THOUSAND DOLLARS ($195,000), as denoted in Exhibit Cl as its share of Project design and construction. IRWD shall not contribute to O&M costs. Q. The Parties contemplated statewide trash amendments by the State Board currently approved "Armendment to the Water Quality Control Plan for the Ocean Waters of California to Control Trash and Part 1 Trash Provisions of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California," which in the future would be reflected in stormwater MS4 Permits. It is intent of the Parties to collaborate efforts in order for the Project to qualify as an implementation plan, or portion thereof, under such requirements. R. After the Diversion Structure and the Facilities become operational and at any point establish an additional regulatory benefit or credit which may be allocated among the Parties, and/or traded or sold to an outside third party at market-based rates, the Parties desire to clarify herein how a Party might receive its fair share of the economic value generated and realized. S. The Parties further desire that the Agreement address how the Parties may amend their respective financial commitments as specified in Exhibit C2a and C2b by revising the percentages representing then proportionate share to include requiring the contribution from future, additional point source dischargers who benefit from the Project Facilities. T. Therefore, the Parties mutually desire to enter into this Agreement to set forth their respective rights and obligations with respect to the Project development, and the possible construction, and long-term O&M of the Facilities. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 10 of 69 20C-16 AGREEMENT NOW, THEREFORE, in consideration of the foregoing Definitions and Recitals, which are incorporated herein by reference, and the mutual covenants and promises among the Parties hereinafter set forth, the Parties agree as follows: SECTION 1 PROJECT REPRESENTATIVES 1.1 SANTA ANA Project Representative. The City Manager of the City of Santa Ana or his designee shall be authorized to perform all actions required to implement this Agreement on behalf of SANTA ANA and serve as the Project Representative for SANTA ANA for all purposes related to this Agreement. 1.2 COUNTY and OCFCD Project Representative. The Director shall be authorized to perform all actions required to implement this Agreement and to serve as the Project Representative, jointly and individually, for OCFCD and the COUNTY as Parties and property right owners; as well as, for the COUNTY as to unincorporated areas of the watershed within its jurisdiction that are not part of JWA operations. 1.3 John Wayne Airport Project Representative, The Airport Director or designee shall be authorized to perform all actions required to implement this Agreement and to serve as the Project Representative on behalf of JWA for all purposes related to this Agreement. 1.4 NEWPORT BEACH Project Representative. The City Manager of the City of Newport Beach or designee shall be authorized to perform all actions required to implement this Agreement on behalf of NEWPORT BEACH and serve as NEWPORT BEACH's Project Representative for NEWPORT BEACH for all purposes related to this Agreement. 1.5 COSTA MESA Proiect Representative. The City Manager of the City of Costa Mesa or designee shall be authorized to perform all actions required to implement this Agreement on behalf of COSTA MESA and serve as COSTA MESA's Project Representative for all purposes related to this Agreement. 1.6 IRWD Project Representative. The General Manager of the Irvine Ranch Water District or designee shall be authorized to perform all actions required to implement this Agreement on behalf of IRWD and serve as IRWD's Project Representative for all purposes related to this Agreement. 1.7 Whenever reference is made herein to an action or approval to be undertaken by a Party, the Project Representative shall be authorized to act on behalf of its respective Party unless specifically provided otherwise or the context requires otherwise. Any determination of change which if implemented may materially alter the terms and financial obligations of the Parties shall require an amendment of this Agreement approved in writing by each Party's board, council, or governing body. 1.8 The Project Representatives shall have authority to send invoices, make and receive Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 11 of 69 20C-17 payments, and perform all other activities required to satisfy the financial responsibilities of their respective Party in accordance with the terms herein. 1.9 Each Party and their respective Project Representative acknowledge that the Project is made possible by virtue of certain Grants and agrees to make every effort to assist and cooperate with SANTA ANA, the Grant Administrator, for the Project to remain in full compliance with the terms of the Grant. 1.10 The Parties agree that JWA and/or Golf Lessee will be compensated for any unmitigated negative impacts to the Golf Course and/or Golf Lessee operations caused by the Project construction or operation only if actual losses or damages are incurred and substantiated. Costs associated with this obligation are Project Cost estimates in Exhibit C3. SECTION 2 RESPONSIBILITIES OF SANTA ANA 2.1 General Responsibilities SANTA ANA shall be responsible for the design, environmental review, obtaining all required Resource Agency approvals, CPP, permits and easements, and construction of the Facilities developed for the Project under the terms of this Agreement. SANTA ANA shall deposit amounts paid by the Parties for Project design and/or construction into a separate account designated for such funds as the Project Fund. Within forty (40) days of the execution of this Agreement, SANTA ANA shall deposit a lump sum amount for design, construction, and the annual O&M costs as established per Exhibit C3, into the Project Favid Account, The Grant funds shall be paid to the Project Fund on a reimbursement basis pursuant the terms and conditions of said grant. 2.2 Environmental Review / Permitting 2.2.1 SANTA ANA shall be the lead agency for purposes of CEQA, prepare the necessary environmental documents and secure all necessary resource agency permits for the Project. SANTA ANA shall secure the rights-of-way for the Project, including any needed for the O&M of the Diversion Structure and all Facilities. 2.2.2 SANTA ANA shall obtain the prior written approval from the Project Representative(s) of any Party with jurisdiction and/or property rights to any permit concerning said property which potentially includes post -construction agreements, obligations or conditions (e.g., mitigation requirements) imposed by any governmental or regulatory agency. 2.2.3 SANTA ANA shall apply for permits and maintain Project compliance with all permits, regulations and laws. As referenced in Recital Q, the development of the Project contemplated statewide trash amendments by the State of California Water Control Board currently approved "Amendment to the Water Quality Control Plan for the Ocean Waters of California to Control Trash and Part 1 Trash Provisions of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California." SANTA ANA shall, if the Project Representatives mutually determine it is necessary, change the Project procedures as to its implementation, Santa Ana -Delhi Channel Diversion Project Agreement D1S-013 Page 12 of 69 20C-18 monitoring, and reporting to assist with a Party's respective stormwater discharge permit compliance. 2.3 Desien 2.3.1 The Parties acknowledge SANTA ANA had the "Santa Ana -Delhi Channel Diversion Project Technical Memorandum 1", dated July 2015 and revised in October 2015, prepared which provides a description of the Project operations and land requirements for alternate design plans. Among the alternatives presented in that memorandum, the Parties wish to implement Scenario 1 where the Facilities will have direct discharge to the Orange County Sanitation District Regional Sewer System as depicted in the "Preliminary Plan" shown on Exhibit B, attached. The Facilities are to be constructed in accordance with Approved Plans that specify its components which may include, among other things and in addition to the modifications to the existing channel section, diversion structure, submersible pumps, floating boom, weirs, screening bars, and debris containment area. 2.3.2 SANTA ANA shall require and ensure that all consultants, engineers and mitigation agents working on the Project environmental, design and construction abide by the insurance and bond requirements as specified in Exhibit G (Insurance, Bonds and Warranties). SANTA ANA agrees to be responsible for the preparation of the PS&E, which shall be consistent with the standards of SANTA ANA and the Party or Parties with jurisdiction or ownership of the right-of- way where construction is to be performed. In case of conflict between such standards, the most stringent standard shall prevail. With regard to the Diversion Stnrcture and any other Facilities appurtenant, in, on or about the Channel or right-of-way held by OCFCD or COUNTY, the PS&E shall be consistent with OCFCD standards, criteria, customs and practices and receive Director's and JWA's approval prior to commencement of construction through OCFCD's CPP process. 2.3.3 SANTA ANA shall provide the Project Representatives opportunities to review the PS&E at the 60% and 90% submittal levels and to provide timely comments prior to submittal of the PS&E to the relevant resource agencies that must issue permits for construction of the Project or O&M of the Facilities. The Project Representatives shall review the revised PS&E in a timely manner and indicate their approval or disapproval of the same to SANTA ANA. SANTA ANA shall address the comments in the drafts. SANTA ANA shall promptly provide each Project Representative with a reproducible copy of the PS&E as well as a copy of all Project -related documents. SANTA ANA shall be responsible for retaining all consultants necessary to prepare the PS&E and Approved Plans in accordance with applicable law. 2.4 Right-of-Wav 2.4.1 Prior to commencing construction, SANTA ANA shall obtain all necessary permits, easements, and any right of way necessary from landowners in order to use their respective properties for the construction and O&M of the Facilities. The terms and conditions of the permits shall be consistent with this Agreement, and in the case of a conflict, the terms and conditions of this Agreement shall control. SANTA ANA shall be responsible for providing the legal descriptions required for right-of-way transactions needed for the Project, subject to the Santa Ana -Delhi Channel Diversion Project Agreement D15•01.1 Page 13 of 69 20C-19 review and approval of the Parties which are to participate in the proposed right-of-way and/or interest transaction. 24.2 Prior to commencing Project construction, SANTA ANA shall work with OCFCD and JWA to obtain from the Irvine Company written concurrence that the proposed Project will not unreasonably interfere with their respective rights or interest in the subject property. 2.4.3 The Parties acknowledge the primary purpose of the OCFCD/COUNTY right-of-way for the proposed Diversion Structure is for flood control purposes and operation of the Channel. If firture circumstances necessitate relocation of the Diversion Structure, or if design requires additional right-of-way for the Project beyond that anticipated to be provided, the Parties shall meet and confer in good faith to identify a preferred location or other alternatives which would not impede flood control operations. Costs of relocation shall be the responsibility of the Parties and shall be allocated among the Parties, other than OCWD and IRWD, based on Sponsorship shares as specified in Exhibit C2a attached herein, 2.5 Construction 2.5.1 SANTA ANA shall be responsible for bidding, awarding, and administering the construction contract(s) of the Project in accordance with the terms of this Agreement. 2.5.2 Upon compliance with CEQA, (and NEPA if applicable), certification and approval of all necessary environmental documents, approval by all of the Project Representatives of associated mitigation requirements, receipt of all regulatory agency approvals, final approval of the PS&E and Approved Plans, and acquisition of right-of-way necessary for all work necessary for the Project, then SANTA ANA shall advertise a contract for construction of the Project for formal bidsper applicable sections of tlue California Public Contract Code, The Project Representatives shall have the opportunity to review all bids. If the lowest responsive and responsible bid would cause the Estimated Cost shown in Exhibit C3 (which includes the 20% contingency amount) to be exceeded, then the Project Representatives shall meet and confer and mutually agree by unanimous vote whether (i) SANTA ANA should award a contract for constriction of the Project to the lowest responsive and responsible bidder, (ii) SANTA ANA should reject all bids and re -bid the Project, or (iii) the Parties shall terminate or amend this Agreement, If all conditions precedent to construction of the Project set forth in this Agreement have been satisfied, SANTA ANA shall award a construction contract to the lowest responsive, responsible bidder and enter into that contract with the Contractor. SANTA ANA shall obtain advance written approval from Parties Representatives for any construction contract change orders and, the implementation thereof. 2.5.3 The Parties agree to cooperate in good faith and exercise best efforts in order to meet grant(s) requirements set forth in Exhibit F, to the best of their Imowledge, and to assist the Project in complying with a project schedule established by SANTA ANA to meet the requirements of Project permits and approvals. In addition, certain activities necessary to complete the Project may result in delays, such as securing environmental certifications/approvals, permitting, securing rights-of-way, Force Majeure Events, and/or obtaining necessary approvals of the Parties relative to design and construction of the Project. Sauta Ana -Delhi Channel Diversion Project Agreement D15-013 Page 14 of 69 20C-20 2.5.4 For purposes of this Section, a "Force Majeure Event" shall mean any of the following events that materially and adversely interferes with or increases the costs of performing SANTA ANA's obligations hereunder, provided that such event (or the effects of such event) could not have been avoided by SANTA ANA's use of reasonable efforts: naturally occurring events (such as landslides, underground movement, earthquakes, fires, tornadoes, hurricanes, floods, lightning, epidemics and other acts of God), Hazardous Material Management Activities (see Section 9), explosion, sabotage or other act of war or public enemy. 2.5.5 SANTA ANA shall require and ensure that the Contractor selected pursuant to this Section and each of the Contractor's subcontractors abide by the insurance requirements as specified in Exhibit G (Insurance, Bonds and Warranties), and name each Party and JWA as an additional insured, and that such Contractor's and subcontractors' indemnity, defense, hold harmless, and insurance obligations under SANTA ANA's agreement with the Contractor expressly benefit each other Party and JWA in the same manner and to the same extent as SANTA ANA. 2,5.6 SANTA ANA shall require and ensure that the Contractor, prior to commencement of construction, furnish a faithful performance bond, payment bond, and warranty bond in an amount equal to the estimated construction cost of the Facilities (including labor and materials) and to perform contract obligations. These bonds shall, at a minimum, comply with the requirements specified in Exhibit G. Each bond shall name the Parties and JWA as beneficiaries and grants each Project Representative the right to enforce the bond to complete the Facilities in compliance with all construction obligations including but not limited to those for warranties. SANTA ANA and the Project Representatives agree to not release the Contractor from its bond(s) without the first obtaining mutual written approval by the Project Representatives. 2.5.7 During construction, SANTA ANA shall provide access for purposes of inspection by any Project Representative to ensure that the Project work is being performed in accordance with the Approved Plans. Any Party's entry during construction upon COUNTY land shall require prior notice to JWA. 2.5.8 After construction, SANTA ANA shall submit to OCFCD Director for written approval a Notice of Completion of the Diversion Structure and any other Facilities on OCFCD and/or COUNTY right-of-way, which approval shall not be unreasonably delayed, and only after receiving approval, file/record the approved Notice of Completion and furnish OCFCD two copies of the Notice of Completion and one (1) set of Mylar (reversed fixed — line photo Mylar) copies and electronic files in a format acceptable to OCFCD of the approved "Record Drawings" for the Facilities within OCFCD and/or COUNTY right-of-way. Approval shall be withheld only for work not completed per the Approved Plans. 2.5.9 SANTA ANA agrees to not release the Contractor from its performance bond or irrevocable letter of credit obligations prior to receipt of written approval from JWA and the Director to the Notice of Completion. 2.5.10 SANTA ANA shall be responsible to maintain the Charnel and all OCFCD and COUNTY improvements impacted by the Project and/or within Project construction areas, according to OCFCD/COUNTY and JWA standards and criteria, until OCFCD/COUNTY and Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-21 Page 15 of 69 JWA acceptance of the portion of the Facility within OCFCD, COUNTY, and/or JWA right-of- way in accordance with the terms herein. 16 Project Fund raid Grant Administration 2.6.1 Within forty days of the Effective Date, SANTA ANA shall have established the Project Fund account in accordance with the terms herein and deposited into it any Grant funds and amounts paid by the Parties for Project in its possession. SANTA ANA shall be the Grant administrator and hold Grant funds and amounts paid by the Parties for Project Capital Costs in this separate Project Fund, SANTA ANA shall implement disbursements from the Project Fund to pay such Project costs as they become due and in accordance with the terms of the Grant and this Agreement. 2.62 SANTA ANA shall accept and use the OCWD's contribution of ONE MILLION DOLLARS and 00/100 ($1,000,000.00), made pursuant to Paragraph 2.6.4 below, for the Project construction cost. The funds shall be made available through an escrow account and paid when construction is completed. 2.6.3 SANTA ANA shall keep appropriate records and accounts of all costs. Said records and accounts shall be subject to reasonable inspection by Project Representatives at their expense and by any Grant fimding authorities. Said accounts and records may be audited annually by an independent certified public accounting firm appointed by SANTA ANA pursuant to generally accepted auditing standards. Costs incurred due to this section are to be paid by the Party or Parties initiating the inspection or audit. SANTA ANA agrees to remain at all times in compliance with the terms of the Grant. 2.64 SANTA ANA shall forward to. OCWLk a copy of the Notice of Completion approved by the Director with written request for payment of the ONE MILLION DOLLARS and 00/100 ($1,000,000.00) pursuant to this Agreement. OCWD's contribution will be deposited into the Project Fund and used prior to SANTA ANA invoicing the remaining Parties as part of the final reconciliation of the Project Fund. 2.6.5 SANTA ANA shall provide Project Fund account statements with updated accounting reconciliations provided upon written request from a Project Representative. Any interest accrued on the Project Fund shall be for the benefit of the Project Fund. A final reconciliation and detailed accounting report will be provided by SANTA ANA upon completion of the Project to each Party. Within forty-five (45) calendar days of Project completion, any excess funds remaining in the Project Fund, minus any unexpended Grant funds, shall be distributed to the Parties per the proportionate shares specified in Exhibit C2, 2.7 Operation and Maintenance (O&M) 2.7.1 SANTA ANA shall be responsible for the preparation of the O&M Manual for the Facility and components thereof as part of the construction contract and its distribution to the Parties for review and approval by the Project Representatives. The Notice of Completion for the Facilities shall not be prepared imtil the O&M Manual has been approved. SANTA ANA agrees Santa Ana�Delhl Channel Diversion Project Agreement D15-013 Page 16 of 69 20C-22 the Facilities shall be exclusively for the mutual use and benefit of all the Parties and those additional parties allowed pursuant Section 8 below. 2.7.2 Within forty (40) days of the Effective Date, SANTA ANA shall pay the amount of ONE MILLION DOLLARS and 00/100 ($1,000,000.00) to OCFCD as the initial deposit of O&M funds into the O&M Account ("Initial O&M Deposit"). 2.7.3 After exhaustion of the Initial O&M Deposits, SANTA ANA agrees to contribute to long-term O&M costs per its proportionate share as specified in Exhibit C2. 2.8 Project Costs 2.8.1 SANTA ANA shall be reimbursed for its actual Project Costs and actual design and construction administrations costs not to exceed the estimated amounts shown on Exhibit C3. SANTA ANA shall prepare invoices accordingly and shall be reimbursed from the Project Fund after sending its invoice(s) with documentation substantiating its actual costs to the Project Representatives within 30 days of reimbursement. SECTION 3 RESPONSIBILITIES OF OCFCD AND COUNTY 3.1 General. Responsibilities 3.1.1 OCFCD and COUNTY ("OCFCD/COUNTY") shall review the Project plans and financially contribute toward the Project Fund as shown in Exhibit C2. Within forty (40) days of the execution of this Agreement, OCFCD and COUNTY shall deliver to SANTA ANA a lump surn amount for design, construction, and the annual O&M; not exceed ONE MILLION, SIX - HUNDRED THOUSAND ($1,600,000) as established per Exhibit C2, which will be deposited into the Project Fund Account. Upon sign -off of all related CPP at completion of Project construction according to the Approved Plan, OCFCD shall take ownership, ongoing long term O&M for the portion of the Facility located upon OCFCD, COUNTY and/or JWA right-of-way. 3.2 Environmental Review / Permitting 3.23 OCFCD/ COUNTY and JWA shall comply with all of the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements obtained for the Project provided those commitments and conditions have been approved by the OCFCD/COUNTY Project Representative and applied to each Party's responsibilities under this Agreement. 3.2.2 OCFCD/ COUNTY Project Representative's prior review and approval of permit conditions and other resource agency approvals shall be required for any that affect or could impact the construction or O&M of the Diversion Structure within OCFCD or COUNTY right- of-way or facilities, or other OCFCD/ COUNTY O&M activities. 3.3 Design Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 17 of 69 20C-23 3.3.1 OCFCD, COUNTY and JWA shall review all draft and final design reports, calculations, and PS&E submitted by SANTA ANA for Project through the CPP process. Such OCFCD, COUNTY, JWA review and approval will be limited to review of the proposed Facilities on OCFCD, COUNTY or JWA right-of-way for conformance with OCFCD, COUNTY or JWA standards, criteria, customs, and practices; to review implications upon the Golf Lessee and proposed remedies, and to ensure the proposed will not interfere with the flood control function of the Channel. Subsequent to the OCFCD, COUNTY, JWA final PS&E approval that becomes the Approved Plans upon mutual acceptance by all Project Representatives, any material design change variance shall require mutual approval by all Project Representatives. Any design change which if implemented would materially alter the terms and financial obligations of the Parties shall require an amendment of this Agreement approved in writing by each Party's board or council. 3.4 Right of Wav 3.4.1 Temporary Construction Easement Ninety (90) days prior to the commencement of any construction activities for the Project, JWA shall deliver to SANTA ANA a Temporary Construction Easement (TCE), substantially in the form of Exhibit D attached, signed and acknowledged by the Airport Director and approved by The Irvine Company in accordance with COUNTY's vesting document obligations. If requested by JWA, SANTA ANA shall provide a legal description in accordance with Section 2.4.1 above for this TCE in a form acceptable to The Irvine Company, COUNTY and OCFCD. 3.4.2 Easement Prior to the commencement of any construction activities for the Project, if deemed necessary, JWA shall deliver to the OCFCD's Director an easement deed substantially in the form of Exhibit E, with a legal description provided by SANTA ANA in accordance with Section 2.4,1 above that has been approved by The Irvine Company in accordance with the terms of COUNTY's vesting deed. The easement would convey rights to OCFCD needed for 0&M of the portion of the Facilities located on COUNTY land. OCFCD/COUNTY/JWA legal and administrative costs associated with this easement are a Project cost in Exhibit C3. SANTA ANA shall receive invoices accordingly from JWA and COUNTY for payment of said costs. SANTA ANA shall pay invoices as they become due from the Project Fund. JWA and COUNTY shall keep appropriate records and accounts supporting amormts invoiced. Said records and accounts shall be subject to reasonable inspection by Project Representatives at their expense and by any Grant funding authorities. 3.5 Construction 3.5.1 In order to reduce Project costs, OCFCD, COUNTY and JWA shall waive any costs or fees with respect to the permits issued by either of them in furtherance of the Project. The terms and conditions of the permits shall be consistent with flus Agreement, and in the case of a conflict, the terms and conditions of this Agreement shall control. Santa Ana -Delhi Channel Diversion Project Agreement DIS -013 Page 1s of 69 20C-24 3.5.2 During construction OCFCD, COUNTY and JWA, their agents, employees and contractors, shall have adequate access to Project areas, to perform their responsibilities pursuant to any issued CPP, this Agreement, and activities authorized tinder the Orange County Flood Control Act, OCFCD and COUNTY shall assign the Oversight Inspector to verify that construction of the Diversion Structure and other Facilities on OCFCD and COUNTY right-of- way are accomplished in a good, workman -like manner and in accordance with the Approved Plans per OCFCD arrd COUNTY standard. The Oversight Inspector shall notify JWA and SANTA ANA's Project inspector of any issue with construction per the terms of the CPP. 3.5.3 Upon receipt of notification by SANTA ANA that the Facilities (including the Diversion Structure) have been substantially completed, the CPP Inspector shall conduct a walls -through to provide a list of outstanding items, if any, needed to close out the construction permit. The Oversight Inspector shall communicate his/her concerns on all matters related to construction of Facilities within, or affecting OCFCD and/or COUNTY's right-of-way through SANTA ANA's Project inspector. Upon completion of the construction and satisfaction of all outstanding items, the Director shall provide SANTA ANA with written approval that construction of the Diversion Structure has been completed per the Approved Plans and the related CPP shall be signed off. Upon sign -off of all related CPP at completion of Project construction according to the Approved Plan, OCFCD/COUNTY shall take ownership and long-term O&M. 3.5A OCFCD/COUNTY costs associated, with the Oversight Inspector, CPP, and any other independent inspection of the Project construction are a Project cost in Exhibit C3. SANTA ANA shall receive invoices accordingly through CPP for payment of said costs. SANTA ANA shall pay invoices as they become due from the Project Fund. OCFCD/COUNTY shall keep appropriate records and accounts supporting amounts invoiced. Said records and accounts shall be subject to reasonable inspection by Project Representatives at their expense and by any Grant funding authorities. 3.6 Grant 3.6.1 OCFCD/COUNTY acknowledges the Project is made possible by virtue of certain Grants and agrees to make every effort to assist and cooperate with SANTA ANA, the Grant Administrator, for the Project to remain in full compliance with the terms of the Grant. 3.7 Operation and Maintenance 3.7.1 Upon OCFCD/COUNTY acceptance of Facilities within OCFCD/COUNTY and/or JWA right-of-way, OCFCD shall either perform Facility O&M or alternatively, OCFCD shall enter into a contract for a third party ("O&M Contractor") to perform the Facilities O&M. The Facilities shall be operated and maintained in accordance with the terms approved by the Director as set forth in the O&M Manual. An approved O&M Manual pursuant to Section 2.7 above and O&M contracts covering the entire Facilities shalt be provided to OCFCD/COUNTY, JWA and COSTA MESA by SANTA ANA prior to completion of Project construction to ensure long-term Facility O&M. In the case where OCFCD or COSTA MESA has chosen to perform their respective O&M duties without the aid of an independent contractor, an O&M contract may not be required. Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 19 of 69 20C-25 3.7.2 OCFCD and COSTA MESA shall ensure their O&M Contractor and those performing O&M abide by the Insurance Requirements as specified in Exhibit 0 (Insurance, Bonds, and Warranties), and name each Party and JWA as an additional insured, and that such Contractor's and subcontractors' indemnity, defense, hold harmless, and insurance obligations under their respective O&M contract with the Contractor and that it expressly benefit each other Party and JWA in the same manner and to the same extent as if they were the original signatories of said contract. OCFCD and COSTA MESA shall further ensure workers including third party contractors follow the O&M Manual and other maintenance manuals or guides for the Facilities. 3.7.3 Within fifteen (15) days of written notice from a Project Representative of a necessary repair and/or replacement or other remedial action for compliance with the O&M Manual or this Agreement, the O&M Contractor, OCFCD and/or COSTA MESA depending upon the location in need of said work shall promptly take action to perform the necessary work. Should that party not commence or diligently work toward completion of the repairs, replacement, and/or remedy required, the Project Representative may perform or cause the repairs, replacement, and/or remedy to be completed, and the costs thereof may be reimbursed from an O&M Fund, 3.7.4 If in the course of normal O&M Facility operations, OCFCD/COUNTY notice unusual types and quantities of debris and trash collected at the Facility, the Director will so notify the Parties who may discuss what upstream debris and trash reduction measures should be implemented in the tributary system to resolve this issue which would be addressed in a separate agreement, not included within obligations herein. Costs to implement these measures, as possible, will not be assessed against an O&M Fund unless agreed to by the Parties. Each Party shall maintain its infrastructure, as needed, to minimize the conveyance of any debris and trash to the Diversion Facility. If unusual amoimts of debris are found in the Facility, the Parties will discuss what upstream debris and trash reduction measures should be implemented in the tributary system to resolve this issue. 3.7.5 Operational and Maintenance Costs Within 40 days of the Effective Date, SANTA ANA shall disburse an upfront, hunp-sum initial $1,000,000 payment into the O&M Fund of OCFCD as the Initial 0&M Deposit. A Party's proportionate share obligation to fund Additional Annual O&M Costs are to be paid as indicated on Exhibit C2 on, or before January I" of each year, or as otherwise established in writing by the Parties. OCWD and IRWD shall not have any obligation to fund Additional O&M Costs. Amounts paid by the Parties for Additional Annual O&NI may be deposited into separate O&M Fund accounts held by either OCFCD or COSTA MESA designated for O&M of the Facilities. OCFCD and COSTA MESA shall pay costs out of their respective 0&M Funds as they become due and in accordance with the terms of this Agreement, COSTA MESA O&M Fund and charges are addressed in Section 5. 3.7.6 Overhead 3.7.6.1 All O&M costs for Project Facilities allocated to the Parties in accordance with the terms herein shall include the cost of OCFCD/COUNTY labor, services and equipment, determined on a time and material basis, using the actual number of man-hours and equipment -hours required Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 20 of 69 20C-26 (including travel time to and from their respective facilities), multiplied by the applicable rates for the crew members and equipment deployed. After-hours services (defined as between 5:00 p.m. on a working day and 7:00 a.m. on the next, following work -day; a "work day" shall exclude Saturday, Sundays and designated holidays for OCFCD/COUNTY unless otherwise approved by the respective Project Representative for OCFCD/COUNTY) will be charged at time and a half. Equipment and material rates shall be approved by the Project Representative for OCFCD/COUNTY and in accordance with OCFCD/COUNTY'S respective standards and practices. 3.7.6.2 The labor rates are comprised of direct and indirect components. The direct labor rate component is adjusted periodically by the authorized representatives of OCFCD/COUNTY as salary adjustments, which may include cost of living, competitive wage, benefit and annual hourly -rate schedule increases. The indirect component of the labor rate reflects the general and administrative cost, which shall include burden rates as established by OCFCD/COUNTY covering costs associated with overhead, contract management and other services provided (`Burden Rate"). As of the Effective Date, the Burden Rate for OCFCD/COUNTY is Seventy Four Point Three Six Percent (74.36%). The Parties acknowledge said Burden Rate is subject to change, and agree to pay the Burden Rate in effect when labor, services or equipment are provided. 3.7.7 Nuisance Prevention Measures. The Parties acknowledge the Diversion Structure is situated on COUNTY land with certain recorded deed restrictions and conditions prohibiting use of the land for any purpose which would constitute a nuisance or be offensive to the senses, health or safety of persons occupying the land or adjoining land. The Parties further agree OCFCD/COUNTY, the Director, an O&M Contractor or any party upholding the O&M duties of those portions of the Facilities on COUNTY land may take any reasonable action and incorporate cleaning and maintenance measures designed to reduce or eliminate odors or others aspects of the Facilities or Project at the site which might violate the aforementioned nuisance deed restrictions or to remedy a matter of particular concern they have been alerted to by person occupying the land or adjoining land. Costs associated with any such action, measure, and communications concerning these matters shall be reimbursed from the O&M Fund or Reserve Fund. The schedule for regular occurring maintenance, removal and hauling of trash and debris may be adjusted at the Director's sole discretion. The O&M Manual shall not limit the ability to adapt maintenance procedures or restrict implementation of alternate preventive measures to avoid the presence of a nuisance, 3.7.8 Hauling, Disposal and Discharize Costs. Facilities O&M requires the handling, extraction, hauling and disposal of solids and the discharge of diverted flows; therefore, the Parties, with exception of OCWD and IRWD, agree to jointly share in the responsibility for any such costs and charges associated therewith. Each Party shall pay its respective proportionate share of these costs as an O&M cost obligation. Notwithstanding the foregoing, the Parties agree to abide the terms in Section 9 (Hazardous Material) concerning the presence of a hazardous or toxic substances, material or waste and that this section shall not be interpreted as restricting or limiting a Party's hazardous material responsibilities herein or imder federal or state law. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 21 of 69, 20C-27 3,7.9 Reserve Fund After exhaustion of the Initial O&M Deposit, a portion of the O&M fund may be deposited and designated as the Reserve Fund which is to be used to repair or replace the Facilities, Project - related Channel improvements and/or appurtenances, or portions thereof, damaged due to a catastrophic event (e.g. a severe storm, seismic activity, or fire). . COSTA MESA may utilize Reserve Funds for the portions of the Facilities it shall own and maintain by having their Project Representative send a written request with supporting documentation to the Director that specifies use of funds consistent with Reserve Fund purposes. The Director shall provide Reserve Fund account statements with the annual O&M Fund reporting. Additional Annual O&M Costs contributions from the Parties, in accordance with the terms herein, are to be, used to replenish the O&M Fund and Reserve Fund. . 3.7. 10 Additional Annual O&M Costs A Patty's proportionate share obligation to fund Additional Annual 0&M Costs are to be paid as indicated on Exhibit C2 to OCFCD on, or before January I' of each year, or as otherwise established in writing by the Patties. OCWD and IRWD shall not have any obligation to fund Additional O&M Costs. OCFCD shall pay costs out of its O&M Fund as they become due and in accordance with the terms of this Agreement. 3.7.11 After exhaustion of the Initial O&M Deposit, OCFCD/COUNTY agree to contribute to long term O&M costs per its joint proportionate share as specified in Exhibit C2. 3,7.12 Records OCFCD shall maintain a complete set of records and accounts of all O&M Costs, maintenance activities and schedules in accordance with generally accepted accounting principles. Upon reasonable notice, OCFCD shall permit a Party or Parties' Project Representatives to inspect and audit all work, materials, payroll, books, accounts, and other data and records of OCFCD. Project Representatives shall also have the right to reproduce any such books, records, and accounts. The above provisions with respect to audits shall extend to and/or be included in contracts with OCFCD'S contractors. Costs incurred pursuant to this section are to be paid by the Party or Parties initiating any inspection or audit. 3.7.13 O&M Cost Annual Report OCFCD shall provide Sponsors an annual report of O&M Account transactions; that includes, O&M Costs, the O&M Fund of OCFCD and any Reserve Fund maintained by OCFCD. Should the Initial O&M Deposit be depleted to less than $400,000 by the end of the fifth year of Facility operations, OCFCD shall so notify all Project Representatives who may meet and confer to evaluate if changes in O&M and fiscal strategies should be implemented, and to ensure enough funds by the Sponsors are available for OCFCD and COSTA MESA to satisfy their respective O&M responsibilities. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 22 of 69 20C-28 SECTION 4 RESPONSIBILITIES OF NEWPORT BEACH 4.1 General Responsibilities NEWPORT BEACH shall review the Project's plans and financially contribute toward the Project Fund as indicated in Exhibit C2. 4.2 Environmental Review; Permitting NEWPORT BEACH shall comply with all of the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements obtained for the Project as those commitments and conditions apply to their responsibilities under this Agreement. Notwithstanding the foregoing, NEWPORT BEACH through its designated Project Representative shall review and approve all permit conditions and other resource agency approvals that affect the construction and O&M of the Facilities, or any portion thereof within its jurisdiction and in, on, or about its right-of-way as to its respective compliance with applicable Regulations. 4.3 Design NEWPORT BEACH shall review all draft and final Project design reports, and PS&E submitted for their approval and shall have its Project Representative respond in writing to SANTA ANA as to a submittal's review for approval in a timely manner, Subsequent to approval of the final design, any material design change variance shall require mutual approval by the Project Representatives. 4.4 Right of Wav As indicated in the Preliminary Plan Exhibit B no pipelines for the Project are proposed to be installed within the public right-of-way of NEWPORT BEACH. However, in the event the final design necessitates the use of public right-of-way and in order to reduce Project costs, provided that a request is in compliance with all permits and regulatory approvals, NEWPORT BEACH shall allow the Project Facilities or portion thereof (including the aforementioned pipelines) to be constructed, operated, and maintained, after an appropriate review, within its respective right of way. Any additional project costs shall be shared by the Parties other than OCWD and IRWD. 4,5 Construction NEWPORT BEACH shall waive any costs or fees with respect to the permits issued by it in furtherance of the Project. The terms and conditions of the permits shall be consistent with this Agreement, and in the case of a conflict, the terms and conditions of this Agreement shall control. Prior to SANTA ANA's construction completion of the Diversion Structure and other Facilities, NEWPORT BEACH shall have its respective Project Representative conduct a walk-through to promptly review the improvements mid provide any comments. Upon satisfaction of any and all Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-29 Page 23 of 69 the comments or items, NEWPORT BEACH shall have its Project Representative provide written approval to SANTA ANA that the Facilities have been constructed in accordance with the Approved Plans or are otherwise acceptable. 4.6 Contribution 4.6.1 Within forty (40) days of the execution of this Agreement, NEWPORT BEACH shall deposit a lump sum amount of ONE MILLION, FIVE -HUNDRED THOUSAND DOLLARS and 00/100 ($1,500,000.00), as established per Exhibit C3, into the Project Fund Account. 4.6.2 After exhaustion of the Initial O&M Deposit, NEWPORT BEACH agrees to contribute to long term 0&M costs per its joint proportionate share as specified in Exhibit C2, SECTION 5 RESPONSIBILITIES OF COSTA MESA 5.1 General Resnons bilities COSTA MESA shall review the Project plans and financially contribute toward the Project Fund as shown in Exhibit C2. In furtherance of the Project, Costa Mesa may include the installation of a segment of the Project's force main in conjunction with one of their City's current construction contracts. In this case, costs to construct this portion shall off -set its financial contribution shown in Exhibit C2. Upon completion of the Project, COSTA MESA shall take ownership, ongoing long-term O&M responsibilities for the Project force main or pipeline, excluding those portions which are part of the Facilities located on OCFCD, COUNTY and/or JWA right-of-way. 5.2 Environmental Review / Perinittine. COSTA MESA shall comply with all of the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements obtained for the Project as those cormnitments and conditions apply to its responsibilities tinder this Agreement. Notwithstanding the foregoing, COSTA MESA through its designated Project Representative shall review and approve all permit conditions and other resource agency approvals that affect the construction and O&M of those portions of the Facilities not on OCFCD, COUNTY and/or JWA right-of-way as to its respective compliance with applicable Regulations. 5.3 Design COSTA MESA shall review all draft and final Project design reports, and PS&E submitted for its approval and have its Project Representative respond in writing to SANTA ANA in a timely manner. Subsequent to approval of the final design, any material design change variance shall require mutual approval by the Project Representatives. Santa. Ana -Delhi Channel Diversion Project Agreement D15-013 Page 24 of 69 20C-30 5.4 Right of Way As indicated in the Preliminary Plan QIhibit B pipelines for the Project are proposed to be installed within the public right-of-way of COSTA MESA. In order to reduce Project costs, provided that a request is in compliance with all permits and regulatory approvals, COSTA MESA shall allow the Project Facilities or portion thereof (including the aforementioned pipelines) to be constructed, operated, and maintained within its respective right of way at no additional cost. 5.5 Construction In order to reduce Project costs, COSTA MESA shall waive any costs or fees with respect to the permits issued by it in furtherance of the Project, The terms and conditions of the permits shall be consistent with this Agreement, and in the case of a conflict, the terms and conditions of this Agreement shall control. Upon receipt of notification that the Facilities or separately constructed portions thereof have been substantially completed, COSTA MESA shall have its Project Representative conduct a walk-through to promptly review the improvements and provide any comments as to any portion of the Facilities not on OCFCD, COUNTY and/or JWA right-of-way. Upon satisfaction of any and all the comments or items, COSTA MESA shall have its Project Representative provide written approval to SANTA ANA that said Facility components have been constructed in accordance with the Approved Plans or otherwise acceptable. Said notice shall be deemed COSTA MESA'S acceptance of ownership and maintenance responsibility for the portions of the Facilities not on OCFCD, COUNTY and/or JWA right-of-way. 5.6 Contribution 5.6.1 Within forty (40) days of the execution of this Agreement, COSTA MESA shall deposit a lump sum amount of SIX -HUNDRED THOUSAND DOLLARS AND 00A00 ($600,000.00), as indicated in Exhibit C2, into the Project Fimd Account, COSTA MESA has the option to construct a segment of the force main in conjunction with one of their construction contracts; in this case, costs expended to constrict this portion shall off -set their financial contribution as established herein; in which their portion of the $600,000 shall be used. SANTA ANA shall advance COSTA MESA, under separate agreement, the $600,000 and any additional funds required for the construction of a portion of the force main with one of their construction contracts. COSTA MESA shall reimburse SANTA ANA as stipulated per their agreement. 5.7 Operation and Maintenance 5.7.1 Upon COSTA MESA acceptance of certain Facility pipeline and appurtenant components, COSTA MESA or its contractor shall perform the O&M for said improvements with all expenses and costs reimbursed from an O&M Fund, as specified in Section 3.7.3 or Reserve Fund. The Facilities shall be operated and maintained in accordance with the terms as set forth in the O&M Manual, COSTA MESA shall ensure any of its contractors performing O&M on the Facilities abide by the Insurance Requirements as specified in Exhibit G (Insurance, Bonds, and Warranties), and name each Party and JWA as an additional insured, and Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 25 of 69 20C-31 that such contractor's and subcontractors' indemnity, defense, hold harmless, and insurance obligations under their respective contract expressly benefit each other Party and JWA in the same manner and to the same extent as if they were the original signatories of said contract. COSTA MESA shall further ensure workers including third party contractors follow the O&M Manual and other maintenance manuals or guides for the Facilities. 5.7.2 Within twenty (20) days of written notice from a Project Representative of a necessary repair and/or replacement or other remedial action for compliance with the O&M Manual or this Agreement within those portions of the Facilities owned and maintained by COSTA MESA, COSTA MESA shall promptly take the remedial action to perform or have its contract perform the necessary work. Should it not commence or diligently work toward completion of the repairs, replacement, and/or remedy required, OCFCD may perform or cause the repairs, replacement, and/or remedy to be completed, and the costs thereof may be reimbursed by invoicing the other Parties according to their proportionate share as shown in Exhibit C2 and the terms herein, 5.8 Additional Annual O&M Costs 5.8.1 A Party's proportionate share obligation to fund Additional Amoral O&M Costs are to be paid as indicated on Exhibit C2 on, or before January 1" of each year, or as otherwise established in writing by the Parties. OCWD and IRWD shall not have any obligation to fund Additional O&M Costs. COSTA MESA shall pay costs out of its O&M Funds by collaborating with OCFCD to acquire said Rinds for Facility O&M Costs in accordance with the terms of this Agreement. 5.9 O&M or_Reserve Fund Utilization 5.9.1 In addition to reimbursement for payment of expenses, COSTA MESA may recover as 0&M casts allocated to the Parties in accordance with the terms herein its labor, services and equipment costs determined on a time and material basis, using the actual number of man-hours and equipment -hours required (including travel time to and from their respective facilities), multiplied by the applicable rates for the crew members and equipment deployed. After-hours services (defined as between 5:00 p.m. on a working day and 7:00 a.m. on the next, following work -clay; a "work day" shall exclude Saturday, Sundays and designated holidays for COSTA MESA unless otherwise approved by the respective Project Representative for COSTA MESA) will be charged at time and a half. Equipment and material rates shall be approved by the Project Representative for COSTA MESA, as the case may be, and in accordance with its respective standards and practices. 5.9.2 The labor rates are comprised of direct and indirect components. The direct labor rate component is adjusted periodically by the authorized representatives of COSTA MESA as salary adjustments, which may include cost of living, competitive wage, benefit and annual bourly-rate schedule increases. The indirect component of the labor rate reflects the general and administrative cost, which shall include COSTA MESA Burden Rate. As of the Effective Date, the Burden Rate for COSTA MESA is 89%. The Parties acknowledge said Burden Rate is subject to change, and agree to pay the Burden Rates in effect when labor, services or equipment are provided. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 26 of 69 20C-32 5.9.3 COSTA MESA may utilize Reserve Funds to repair or replace the Facilities or portions thereof, damaged due to a catastrophic event (e,g. a severe storm, seismic activity, or fire) by sending a written request with supporting documentation to the Director that specifies a use of funds consistent with Reserve Fund purposes. Upon completion of work paid with Reserve Funds, COSTA MESA shall send OCFCD an accounting of expended funds and return any unused funds for deposit back into the Reserve Account. 5.9.4 After exhaustion of the Initial O&M Deposit COSTA MESA agrees to contribute to long term O&M costs per its joint proportionate share as specified in Exhibit C2. 5.10 Records COSTA MESA shall maintain a complete set of records and accounts of all O&M costs, maintenance activities and schedules in accordance with generally accepted accounting principles. Upon reasonable notice, COSTA MESA shall permit a Party or Parties' Project Representatives to inspect and audit all work, materials, payroll, books, accounts, and other data and records of COSTA MESA. Project Representatives shall also have the right to reproduce any such books, records, and accounts. The above provisions with respect to audits shall extend to and/or be included in contracts with COSTA MESA'S contractors. Costs incurred due to this section are to be paid by the Party or Parties initiating any inspection or audit. SECTION 6 RESPONSIBILITIES OF IRWD 6.1 General Responsibilities IRWD shall review the Project's plans and financially contribute toward the Project Fund as shown on Exhibit Cl . 6.2 Environmental Review: Permittin IRWD shall comply with all of the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements obtained for the Project as those commitments and conditions apply to its responsibilities under this Agreement, 6.3 De. sign IRWD shall review all draft and final Project design reports, and PS&E submitted for its approval. IRWD's Project Representative shall respond in writing to SANTA ANA as to a submittal's review for approval in a timely manner. Subsequent to approval of the final design, any material design change variance shall require mutual approval by the Project Representatives. 6.4 Right of Way - Intentionally deleted Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 27 of 69 20C-33 6,5 Construction IRWD shall waive any costs or fees with respect to the permits issued by IRWD in furtherance of the Project. The terms and conditions of the permits shall be consistent with this Agreement, and in the case of a conflict, the terms and conditions of this Agreement shall control. Prior to SANTA ANA's construction completion of the Diversion Structure and other Facilities, IRWD shall have its Project Representative conduct a walls -through to promptly review the improvements and provide any comments. Upon satisfaction of any and all the comments or items, IRWD shall have its Project Representative provide written approval to SANTA ANA that the Facilities have been constricted in accordance with the Approved Plans or are otherwise acceptable. 6.6 Contribution 6.6.1 Within forty (40) days of the later of (i) execution of this Agreement or (ii) the expiration of the applicable challenge periods for the Project environmental documentation or (iii) the resolution of all court actions challenging such environmental documentation, IRWD shall make a one-time lump sum payment of ONE HUNDRED AND NINETY-FIVE THOUSAND DOLLARS ($195,000), as denoted per Exhibit Cl, into the Project Fund Account. 6.6.3 IRWD shall not be obligated to pay or contribute to O&M costs or required to contribute to the Reserve Fund for the Facility. Provisions in this Agreement stating IRWD's non - responsibility for particular costs or contributions shall not limit the generality of this Section. 6.7 Discharges During the Term 63.1 IRWD shall have the right to continue to apply for permits consistent with the terms and conditions of IRWD's existing CPP issued permits Nos. 2015-00435, 2015-00443, 2015-00444, 2015-00445, 2015-00461, 2015-00439, 2015-00440 and 2015-00441 allowing for their discharge(s) into Santa Ana Gardens Channel (which further discharges to the Chamrel) from its Well Nos. IRWD-1, IRWD-11, IRWD-C-8, and IRWD-C-9, and directly into the Channel from its Well Nos. IRWD-2, IRWD-4, IRWD-5 and IRWD-6, or any replacements to these wells in kind, with similar discharge release, quantities and timing. 6.7.2 COUNTY shall not unreasonably cancel or withhold renewal of any such discharge permits to IRWD, which are in full compliance and effect on the Effective Date, on substantially the same terms and conditions, provided IRWD abides by COUNTY's permit application and renewal process with payment of applicable standard fees. SECTION 7 ORANGE COUNTY WATER DISTRICT 7.1 General Responsibilities The Project proposes to divert dry -weather flows an Orange County Sanitation District ("OCSD") trunk line for conveyance to its sanitary sewer treatment plant and thereafter to the Santa Ana -Delhi Channel Diversion Project Agreement D13-013 Page 28 of 69 20C-34 OCWD Groundwater Replenishment System. In furtherance of the Project, OCWD will make a one-time, lump -sum payment of ONE MILLION DOLLARS ($1,000,000) toward the Project construction costs ("OCWD Project Contribution") pursuant to the terms and conditions provided herein. OCWD shall have no responsibility for the design, construction, operation, maintenance or repair of the Project. OCWD's sole responsibility under this Agreement shall be payment of the OCWD Project Contribution in accordance with the terms herein. 7.2 Environmental Review; Permitting. Intentionally deleted 7.3 Design. Intentionally deleted 7.4 Right of Wim. Intentionally deleted 7.5 Construction. Intentionally deleted 7.6 Contribution. Within fifteen days of receipt from SANTA ANA of a copy of the issued Notice of Completion, OCWD shall pay SANTA ANA the OCWD Project Contribution. OCWD shall not be responsible for sharing the O&M Costs to operate and maintain the Facility or required to contribute to the Reserve Fund for the Facility. 7.7 Water Recipient. OCWD agrees to receive water generated by the Project by allowing flows which are diverted by the Project into an OCSD trunk line and sanitary treatment plant to be conveyed via transmission pipelines into OCWD's Groundwater Replenishment System. The Parties mutually agree that neither the Project nor operation of the Facilities shall require OCWD to pay for its receipt of the Project's water (other than OCWD's payment of the OCWD Project Contribution). Nothing contained in this Agreement or in any document related hereto shall be construed to imply any representation or warranty, either express or implied, by any Party as to the quantity, quality, nature or condition of water or flows diverted by virtue of the Project or a guarantee with regard to water rights or any interest therein. SECTION 8 INDEMNIFICATION 8.1 In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of the Government Code, each Party, pursuant to the authorization contained in Sections 895.4 and 895.6 of the Government Code, hereby agree to and shall indemnify and hold harmless the other Parties as provided in this Section, 8.2 SANTA ANA shall assume the defense of, indemnify and hold harmless the other Parties and JWA, and each of their elected or appointed officers, employees, officials, volunteers, and Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 29 of 69 20C-35 agents from and against any and all actions, damages, liability or claims for death, injury, loss, damage or expense to persons or property arising from or related to, or claimed to have arisen from or be related to, the Diversion Structure, the Facilities and/or the Project or implementation of this Agreement, including claims or liability associated with SANTA ANA's responsibilities herein, including but not limited to, environmental compliance, design, construction, replacement, use, operation, maintenance, and/ or repair, of the segment of Channel impacted by the Project, the Diversion Structure, and/or the Facilities, or resulting from SANTA ANA's breach of its obligations trader the Agreement, except to the extent such actions, damages, claims, losses, expenses or liabilities have arisen from or relate to the willful misconduct or negligent acts of the indemnified Party, or result from such Party's breach of its obligation(s) under the Agreement. 8.3 Each of the Parties, other than SANTA ANA and OCWD, shall assume the defense of, indemnify and hold harmless the other Parties and 7WA, and each of their elected or appointed officers, employees, officials, volunteers and agents from and against any and all actions, damages, liability or claims for death, injury, loss, damage or expense to persons or property arising from or related to, or claimed to have arisen from or be related to, the willful misconduct or negligent acts or omissions of, or result from the breach of this Agreement by, such Party in connection with its participation in the Project or use of the Diversion Structure or other component of the Facilities, except to the extent such actions, damages, claims, losses, expenses or liabilities have arisen from the willful misconduct or negligent acts or omissions of, or result from the breach of this Agreement by, the indemnified Party. If judgment is entered against all the Parties by a court of competent jurisdiction because of the concurrent active negligence or improper acts of one or more Parties, the Parties agree that liability will be apportioned as determined by the court. No Patty shall request a jury apportionment. 8.4 To the fullest extent permitted by law, each of the Parties other than IRWD, shall defend, indemnify, protect, and hold harmless OCWD, its officers, agents, employees, and independent contractors (OCWD Indemnitees) from and against any and all liabilities, actions, suits, claims, demands, losses, costs, tortious, contractual, condemnation, inverse condemnation, 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, for damage to property, or liability of any kind or nature which OCWD Indemnities may sustain or incur upon them or any of them as a result of, arising out of, or in any way connected with this Agreement, use, operation, maintenance, replacement, and/ or repair of improvements, the segment of Channel in association with the Project, the Diversion Structure, and Facilities or portions thereof, from any violation of any federal, state, or local law or ordinance, except to the extent such Claims are alleged to be proximately caused by the negligent acts, omissions or willful misconduct of OCWD Indemnities in connection with or arising out of this Agreement, or the performance or breach of this Agreement or the O&M Manual. SECTION 9 HAZARDOUS MATERIAL "HM -1" is defined as hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law existing prior to the Project Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 30 of 69 20C-36 and not disturbed by the Project. "HM -2" is defined as hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the Project or as a result of the Project. "HM Management Activities" is defined as management activities related to either HM -1 or HM -2 including, without limitation, any necessary manifest requirements, clean-up and disposal facility designations. If HM -1 or HM -2 is found during Project implementation, SANTA ANA will immediately notify the Parties. The Parties are responsible for any HM -1 found within property they own to the extent provided by applicable law, and entry into this Agreement shall not cause that liability to be assumed by or transferred to any other Patty. If HM -I is discovered, the Parties will meet to determine the most cost-effective solution to deal with the HM -1 including, but not limited to, changes to the Project. Unless otherwise mutually agreed by the Parties, other Parties shall not be responsible for the cost of HM Management Activities related to HM -1 on another Party's property, if any. If HM -2 is found within Project limits, SANTA ANA will be responsible for HM Management Activities related to HM -2 within the Project limits. HM -2 related HM Management Activities during construction shall be paid as a Project constnietion cost. HM -2 related HM Management Activities after construction shall be paid from an O&M Fund in accordance with the terms herein. SECTION 10 REGULATORY CREDITS & OFFSETS If the Project, is considered a qualified offset program by the Regional Board, such that load reductions create regulatory credits or offsets that may be traded among the Parties or collectively traded or sold to others by actions taken by a Party's Project Representative, the Parties agree that the credits will accrue to the Sponsors in proportion to their Sponsorship Share on Exhibit C2a or C2b, whichever is then in effect. Prior to -offering its regulatory credits or offsets for trade or sale to others, a Sponsor through its associated Project Representative shall first present such offer to the other Sponsors' Project Representatives who shall have a first right of refusal, to acquire according to they Sponsorship Share, SECTION 11 ADDITIONAL POINT SOURCE PARTICIPANTS 11.1 At any time the Project Facilities becoming operational, additional parties may wish to participate in the Project. Parties may initiate negotiations with others that move into the Watershed Area, such that they could enter into an agreement as an Additional Participant to receive regulatory compliance, offsets or credits offered by the Project, provided that the party appropriately contributes toward the O&M costs. 11,2 Additional Participants shall enter into an agreement with a term coinciding with this Agreement that is signed by all Parties. The Additional Participant shall agree to comply with the terms and conditions herein (excluding those pertaining solely to the Project's design and construction) and to pay invoices for their Cost Share of O&M costs within forty (40) days of receipt of an invoice. Each Additional Participant shall indemnify and hold the Parties and JWA and each of their elected or appointed officers, employees, officials, volunteers, and agents from and against any and all actions, damages, liability or claims for death, injury, loss, damage or Santa Ana -Delhi Channel Diversion Projeot Agreement Dl S-013 Page 31 of 69 20C-37 expense to persons or property arising from or related to, or claimed to have arisen from or be related to, the willful misconduct or negligent acts or omissions of, or result from the breach of this Agreement by, such Party in connection with its participation in the Project or use of the Diversion Structure or other component of the Facilities. Additional Participants shall not have a Project Representative for this Agreement, unless such party later becomes an assignee or successor of a Party. 11.3 After entering into an Additional Participant agreement the Parties may amend the Cost Share percentages, with any material alteration in the financial obligations of the Parties requiring an amendment to this Agreement to be approved in writing by the Party's board, council, or governing body. Additional Participants' Cost Share shall include a premum above what is attributable to them by virtue of their Watershed acreage percentage, percentage of discharge or acknowledged benefit. An additional One Point Five Percent (1.5%) premium shall be paid by the Additional Participant into an O&M Fund. The amount of premium may be revised by written approval of the Project Representatives. SECTION 12 SUCCESSORS AND ASSIGNS This Agreement shall inure to and be for the benefit of the successors and assigns of the Parties hereto. A Party shall not assign or delegate its responsibilities or performance trader this Agreement, nor any part thereof, without the prior written consent of the non -assigning Parties. Prior to any such assignment or conveyance, that Party shall provide the Project Representatives with the proposed assignee's written assumption of all of the respective Party's responsibilities and obligations pursuant to this Agreement. Such consent shall not be unreasonably withheld. Any purported assignment, conveyance or encumbrance of any of the Facilities without such unanimous written consent shall be null and void. In the event of any assignment, conveyance, and/or encumbrance of a Party's respective interests in the Watershed Drainage Area right-of-way, that Party shall provide the other Parties at least three (3) months' written notice of any such proposed transaction or event. SECTION 13 ATTORNEY'S FEES Unless otherwise specified herein, in any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, the Patties shall each bear their own attorney's fees, costs and expenses. SECTION 14 ENTIRE AGREEMENT; GOVERNING LAW; AMENDMENT; COUNTERPART; AVAILABILITY OF FUNDS 14.1 Entire Agreement. This Agreement including the Exhibits and all applicable permits and CPP constitutes the entire agreement between the Parties hereto and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. Notwithstanding the foregoing, this provision shall not release any Party Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 32 of 69 20C-38 from any obligations under any prior agreements to be performed through the Effective Date or from any obligations of indemnification based upon events occurring prior to the Effective Date, This Agreement shall be construed as if prepared by all Parties hereto. 14.2 Governing Law. California law shall govern the interpretation of this Agreement. Any action or proceeding brought to enforce the Agreement, or related to the Agreement, shall be brought h1 Orange County, California, notwithstanding the provisions of California Code of Civil Procedure Section 394. 14.3 Amendment. Any amendment to this Agreement shall be made in writing and signed by all of the Parties hereto. 14.4 Counterpart. The Agreement and any amendment hereto may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 14.5 Availability of Funds. All obligations of the Parties, including those exercised through the Project Representatives, under the terms of this Agreement are subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating any Party to expend or as involving any Party in any other contract or obligation for the future payment of money in excess of appropriations authorized by law. SECTION 15 NOTICES Any notices given pursuant to the Agreement or regarding matters contained within this Agreement shall be deemed delivered upon personal delivery or five (5) days after deposit in the United States Mail, first class, postage prepaid, addressed to the Project Representative of each Party at the address included in the signature section. Notice under this Agreement shall be given to each Party and JWA using the following contact information, unless any Project Representative gives notice of a change in Project Representative or contact information pursuant to this Section, in which case the new information shall be substituted for the information set forth in this Section. Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 33 of 69 20C-39 City of Santa Ana Tyrone Chesanek, P.E. Principal Civil Engineer Public Works Agency - Constriction 20 Civic Center Plaza M-22 Santa Ana, CA 92702 Phone: (714) 647-5045 Email: tchesanek@santa-ana.org City of Newvort Beach Dave Kiff City Manager 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644-3001 Email: dkiff@newportbeachca.gov City of Costa Mesa Baltazar Mejia Acting City Engineer Public Services 77 Fair Drive, 4th Flr Costa Mesa, CA. 92626 Phone: (714) 754-5222 Email: NABIL.TOMA@costamesaca.gov 10 K R,, John Kennedy Executive Director of Engineering and Water Resources Orange County Water District 18700 Ward Street Fountain Valley, CA 92708 Phone: (714) 378-3304 Email: jkennedy@ocwd.com County of Orange/ Orange County Flood Control District Shane L. Silsby OC Public Works Director OC Public Works 300 North Flower Street Santa Ana, CA 92703.5000 Facsimile: (714) 834-2395 RE: D15-013 F01 Diversion Project with copy to: John Wayne Airport Airport Director Barry A. Rondinella 3160 Airway Avenue Costa Mesa, CA 92626 Facsimile: (949) 252-5044 RE: Santa Ana -Delhi Diversion Project YRWD General Manager Irvine Ranch Water District 15600 Sand Canyon Ave Irvine, CA 92716 Phone: (949) 453-5300 Facsimile: (949) 453-1228 Email: cook(a&irwd.com Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-40 Page 34 of 69 SECTION 16 SEVERA131LITY If any covenant, term, condition, or provision of this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law unless that covenant, term, condition, or provision declared to be invalid is so material that its invalidity deprives any Party of the basic benefit of its bargain or renders the remainder of this Agreement meaningless, SECTION 17 NO THIRD PARTY BENEFICIARIES No customer, other person or entity other than the Parties acid JWA shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement, either express or implied, is intended to confer upon any other person or entity, other than the Parties and JWA and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. SECTION 18 DISPUTE RESOLUTION The Parties desire to resolve as quickly and as amicably as possible any disputes as to the meaning of any portion of this Agreement, the validity of any determination or calculation, or the rights or obligations of the Parties pursuant hereto. Therefore, prior to initiation by a Party of any litigation or other proceeding in connection with this Agreement, the Parties shall meet and make good -faith efforts to resolve any such disputes on an informal basis, The Party that first raises a claim against any other Party in connection with a dispute shall be responsible for providing written notice to such other Party or Parties and initiating the informal dispute resolution efforts. Such informal efforts may include mediation of the dispute if agreed by the Parties involved in the dispute. Not sooner than thirty (30) days after diligent efforts to resolve a dispute have been initiated, if the Parties have been unable to resolve the dispute on such informal basis, any Party involved in the dispute may, in its discretion and after providing written notice to the other Parties that the informal dispute -resolution efforts are being terminated, proceed to take any and all such action to enforce or protect its rights as permitted by law and/or this Agreement. If a Party initiates informal dispute resolution with respect to a dispute, any statutory limitation for filing of a court action or commencement of any other proceeding shall be tolled for a period of days equal to the number of days that elapsed between delivery of the notice initiating informal dispute resolution and the notice terminating informal dispute -resolution. SECTION 19 TERMINATION AND EXPIRATION In the event that Project construction is not initiated within two (2) years of the execution date of this Agreement, this Agreement shall automatically expire, unless sooner terminated by a Project Representative written notice to all other Parties, or extended in writing by mutual agreement of the Project Representatives. Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 35 of 69 20C-41 Once construction has begun, unless otherwise mutually agreed by all Project Representatives, a Party may not unilaterally terminate its obligations ander this Agreement. Notwithstanding any termination of this Agreement, each of the Parties must comply with all terms and conditions of the Grants. In the event of a temaination of this Agreement, each of the Parties shall be responsible for finding and arranging an alternate means of discharging its respective duties or other Regulatory obligations, and for payment of any fines, penalties or costs incurred by that Party as the result of a suspension or termination. Unless otherwise terminated or extended, this Agreement shall be effective for an initial term of twenty-five (25) years commencing on the Effective Date, and shall automatically renew for a one time ten year term thereafter (the initial term and renewal terms shall collectively be referred to as the "Term"). Project Representatives may meet and confer to determine continued use, termination of this Agreement, transfer, closure, removal and/or abandonment of the Facilities or components thereof, The Project Representatives shall also meet and confer upon the fifteenth (15a') anniversary of Project completion to assess O&M for the Project including the payment of the Parties' fair share of 0&M costs. Prior to any termination of this Agreement, the Project Representatives are to agree upon demobilization or transfer of the Facilities and whether to sell any part of it, the proceeds of such sale and outstanding Project debts and obligations shall be allocated among the Parties in accordance with their respective proportionate share percentages in Exhibit C2. Upon termination of this Agreement or abandonment of the Project, the Parties shall, within 120 days from written demand from JWA, remove the Diversion Structure and restore the Project Area as nearly as possible to the same condition as the Project Area was in prior to the execution of this Agreement. All costs of removal or restoration shall be borne by the Parties, in accordance with their respective proportionate share percentages in Exhibit C2. SANTA ANA shall be responsible and ensure that the Diversion Structure and appurtenant improvements are removed from the Channel and OCFCD or COUNTY right-of- way as specified by the Director, Regulations, and all applicable laws. SECTION 20 SURVIVAL CLAUSE The obligations regarding: environmental commitments (as set forth herein); indemnification (as set forth in Section 8); operation, maintenance, cost allocation and ownership (as set forth herein); and specific performance (as set forth in Section 21) shall survive termination of the Agreement, as applicable, and shall remain in effect until terminated or modified in writing by mutual agreement of all Parties and JWA or the applicable statute of limitations is reached. SECTION 21 SPECIFIC PERFORMANCE The Parties acknowledge that monetary damages would be an inadequate remedy for breach of this Agreement, and that a Party's breach will result in immeasurable and it -reparable Santa Ana -Delhi Chmacl Diversion Project Agreement D15-013 Page 36 of 69 20C-42 harm to the other Parties. Therefore, in addition to any other remedy to which it may be entitled by reason of another Party's breach of this clause, the moving Party shall be entitled to seek temporary, preliminary and permanent injunctive relief from any court of competent jurisdiction restraining the other Parties from committing or continuing any breach. This clause shall survive any termination of this Agreement. SECTION 22 EXHIBITS This Agreement contains the following exhibits, which are attached hereto: Exhibit A -I --Location Map Exhibit A-2 — Santa Ana Delhi Drainage System Exhibit B — Preliminary Platt Exhibit C — Funding Table, Participant Shares & Estimated Costs Exhibit D — Temporary Construction Easement to the City of Santa Ana Exhibit E — Easement COUNTY to OCFCD Exhibit F — Grant Requirements Exhibit G — Insurance, Bonds and Warranties Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 37 of 69 20C-43 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective Date written above. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: J se 'audoval C ref Assistant City Attorney CITY OF SANTA ANA, a Municipal corporation of the State of City Manager ATTEST: Maria D. Huizar Clerk of the Council ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIR OF THE Ch BOARD PER G.C. Sec 25103, Reso 79-1535 Chairwoman of the Board of Supervisors County of Orange, California Attest: Robin Stieler Interim Cleric of the Board County of Orange, California APPROVED AS TO FORM Office of the County Counsel County of Orange, California Lo Deputy Santa Ana-Dellli Channel Diversion Project Agreement D15.013 20C-44 Page 38 of 69 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective Date written above. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney 0 Jose Sandoval Chief Assistant City Attorney CITY OF SANTA ANA, a Municipal corporation of the State of California David Cavazos City Manager ATTEST: Maria D. Huizar Clerk of the Council ORANGE COUNTY FLOOD CONTROL DISTR T, a body corp to and politic SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN B DELIVERED TO THE CHAIR OF THE Chairwoman of the Board ofSn Supervisors BOARD PER G.C. Sec 25103, Reso 79-1535 P Attest: County of Orange, California obin Stieler Interim Clerk of the Board County of Orange, California APPROVED AS TO FORM Office of the County Counsel County of Orange, California Date: Santa Ann -Delhi Channel Diversion Project Agreement DI5-013 20C-45 1� Page 38 of 69 COUNTY OF ORANGE, a political subdivision of the state of California *Caurwoi;-,in of the Board of Supervisors County of Orange, California APPROVED AS TO FORM Office of the County Counsel County of Orange, California By. �15ep I Date: Cl-t� CITY OF NEWPORT BEACH, a California municipal corporation and charter city By: Dave Kiff City Manager APPROVED AS TO FORM: ATTEST: City of Newport Beach City of Newport Beach Aaron C. harp Leilani 1. Brown City Attorney City Cleric Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-46 Page 39 of 69 APPROVED AS TO FORM: r-i,ty of Newport Beach Aaron C. Hate City Attorney u COUNTY OF ORANGE, apolitical subdivision of the state of California Chairwoman of the Board of Supervisors County of Orange, California APPROVED AS TO FORM Office of the County Counsel County of Orange, California Deputy Date: CITY OF NEWPORT BEACH, a California municipal corporation and charter city By: l Dave Ki f City Manager ATTEST: Cit Npo� (1t ea m.e Leilani I. Brown City Clerk Santa Ana -Delhi Channel Diversion Project AgreernenCD15-013 20C-47 Page 39 of 69 APPROVE F R Tom Duu to City Attorney APPROVED AS TO FORM APPROVED AS TO FORM Date:__ _ By: CITY OF COSTA MESA, a California municipal corporation By: J Tot Hatch Chief Executive Officer ATTEST: Brenda City Clerk ORANGE COUNTY WATER DISTRICT, a subdivision of the State of California organizcd under Chapter 924 of the Statutes of 1933, Name: Title: IRVINE WATER RANCH DISTRICT, a California water district, By: Name: Title: Santa Ana -Delhi Channel Diversion Project Agreement DIS -013 20C-48 Page 40 of 69 CITE' OF COSTA NIESA, a f.atifornia municipal corporation By: Toni Hatch Chief Executive Officer APPROVED AS TO FORM: ATTEST: Toni Duarte City Attorney a,r C' ( 6144'wd APPROVED AS TO FORM Brenda Green City Clerk ORANGE COUNTY WATER DISTRICT, a subdivision of the State of California organized under Chapter 934 of the Statutes of 1011 Cyene,rqc _ IRVINE WATER RANCH DISTRICT, a California Nater district, Title: Smmi \na-Delhi thamtl Dirrrsion Project Ay?mement D15-013 Page 40 of 69 20C-49 APPROVED AS TO FORM: CITY OF COSTA MESA, a California municipal corporation Tom Hatch Chief Executive Officer ATTEST: Torn Duarte Brenda Green City Attorney City Cleric ORANGE COUNTY WATER DISTRICT, a subdivision of the State of California organized under Chapter 924 of the Statutes of APPROVED AS TO FORM 1933, By: Date: Name: By: Title: IRVINE WATER RANCH DISTRICT, a California water district APPROVED AS TO FORM ,- /t Date: 7.116 L Cook. G By: �%'/ General Manager Joan . Arneson Santa Ana -Delhi Channel Diversion Project Agreement D15.013 20C-50 Page 40 of 69 EXHIBIT A-1 Location Map Proposed Pipeline/Sewer � ^ 'C`o'nnection \ `yam �\ BAKER ST PAULARINO CHANNEL IF031\\ "A ti.C?5T 3 AIlf.5.4 0 600 1COD I. Ft eet ARLINGTON DR SANTAANA COUNTRYCLUB U,n in cia•pora tec] County PROPOSED Legend N� DIVERSION Proposed Diversion Pipeline STRUCTURE 209 ExistingSewerline ,+ �r+�■• DCFCD Drainage Facilities •1'• SpN •— City Boundaries /�SA9 PAULARINO r� vtl J TVEI "iMT 8 ACR 0 A /9 JOHN / WAYNE AIRPORT UnIncorX1, roi,lrr Py COUNTY OF ORANGE EXHIBIT A-1 OC PUBLIC WORKS OC INFRASTRUCTURE PROGRAMS LOCATION MAP PROJECT: SANTA ANA•DEUFII CHANNEL. DIVERSION STRUCTURE SCALE:As Shown I AGREEMENT D15-013 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 41 of 69 20C-51 EXHIBIT A-2 Santa Ana -Delhi Drainage System Legend J COSTA MESA Q M ® IRVINEpp� g q5i S4ry NEWPORT BEACH y ® SANTAANA Unincorporated pjt O Watershed Drainage Areas f i --- OCFCD Drainage Facilities 5T. ° COUNTY OF ORANGE EXH I BIT A-2 OC PUBLIC WORKS OC INFRASTRUCTURE PROGRAMS DRAINAGEAREAS PROJECT: SANTA ANA -DELHI CHANNEL DIVERSION STRUCTURE SCALE: As Shown AGREEMENT DI5-013 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-52 Page 42 of 69 EXHIBIT S Preliminary Project Plans Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 43 of 69 20C-53 EXHIBIT C1 PROJECT FUNDING COMMITMENTS M2 Grant $ 2,572,875.00 City of Santa Ana $ 1,900,000.00 OCFCD & County of Orange $ 1,600,000.00_ City of Newport Beach $ 1,500,000.00 OCWD $ 1,000,000.00 City of Costa Mesa $ 600,000.00 IRWD $ 195,000.00 Funding Total $ 9,367,875.00 EXHIBIT C2a PROJECT FUNDING PARTNER SPONSORSHIP PROJECT PERCENTAGE Funding Partner Funding Commitment Sponsorship Share* City of Santa Ana $ 1,900,000.00 33.93% OCFCD & County of Orange $ 1,600,000.00 28.57% City of Newport Beach $ 1,500,000.0026.79% _ 25.88% City of Costa Mesa $ 600,000.00 10.71% Total $ 5,600,000.00 100.00% EXHIBIT C2b PROJECT FUNDING PARTNER SPONSORSHIP CREDIT/OFFSET' PERCENTAGE Funding Partner Funding Commitment Sponsorship Share** City of Santa Ana $ 1,900,000.00 32.79% OCFCD & County of Orange $ 1,600,000.00 27.61% City of Newport Beach $ 1,500,000.00 25.88% City of Costa Mesa $ 600,000.00 10.35% IRWD $ 195,000.00 3.37% Total $ 5,795,000.00 100.00% * After the Initial 0&M Deposit has been exhausted, the Sponsorship Share percentages in Exhibit C2a shall be used to determine: 1. The funding partners' respective participation percentages, 2. Credit/Offsets percentages, 3. Distribution of project savings, and 4.0&M cost share in excess of the Initial 0&M Deposit in accordance with the terms herein ** The Sponsorship Share in Exhibit C2b shall be used to determine 1. The funding partners' respective participation percentages except that for IRWD, the percentage and dollar amount correspond to IRWD's one-time lump sum payment, 2. Credit/Offsets percentages, and 3. Distribution of project savings during that period of time commencing when the funding partner paid its financial contribution per this Agreement until the exhaustion of the Initial O&M Deposit. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 44 of 69 20C-54 EXHIBIT C3 ESTIMATED PROJECT COSTS' Item Description Unit Quantity Unit Price Amount 0 Project Administration(COSA) % 3% n/a $ 273,540.00 1 Design Engineering LS 1,00 $ 300,000,00 $ 300,000.00 2 Permits/ROW/Easements LS 1 $ 40,000.00 $ 40,000.00 3 Environmental Report LS 1.00 $ 50,000.00 $ 50,000.00 4 Survey LS 1.00 $ 60,000.00 $ 60,000.00 5 Pothole LS 1.00 $ 20,000.00 $ 20,000.00 6 Site Work LS 1.00 $ 950,000.00 $ 950,000.00 7 Channel Work LS 1.00 $ 1,101,000.00 $ 1,010,000,00 8 Equipment/Discharge EA 7.00 $ 140,000.00 $ 980,000.00 9 14" PVC Sewer Force Main LF 8,475 $ 240.00 $ 2,034,000.00 10 Project Contingency % 20% n/a $ 1,024,800.00 11 Construction Management (COSA) % 8% n/a $ 409,920.00 12 Inspection & Testing(COSA) % 7% n/a $ 358,680.00 13 Inspection (County) % 1.50% n/a $ 76,860.00 14 Survey/Construction Staking % 3% n/a $ 153,720.00 15 Attorney Fees LS 1 $ 100,000.00 $ 100,000.00 16 O&M (20yr) & Administration LS 1 $ 11000,000.00 $ 11000,000.00 17 Site Security/Cameras LS 1 $ 126,355.00 $ 126,355.00 18 Golf Course Impacts (Estimate) LS 1 $ 400,000.00 $ 400,000.00 TOTAL $ 9,367,875.00 Amounts above are estimates from an Opinion of Probable Construction Cost referenced as "Engineer's Estimate 15-058" by AECOM dated 7/24/2015 based upon 60% Design Plans; including 20 year O&M costs, and was used as a basis to estimate the project costs and were revised accordingly to reflect adjustments amenable to the Funding Partners. SANTA ANA shall charge Parties its actual Project Costs In accordance with the terms herein. 1 Estimate Includes paying Section 3.4 Involce(s) for costs associated with obtaining easement rights and title acceptable to The Irvine Company, OCFCD/County, 1WA and the Parties. 9e Bid Item 0 was calculated on the entire project costs, Bid Items 1-18. Bid Items 10, 11, 12, 13, & 14 were calculated on the construction costs only; Bid Items 6, 7, 8, 9, & 17. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 45 of 69 20C-55 EXHIBIT C4 FCTTNI'ATFD 20.vFAR O&M COSTS BREAKDOWN' 1 Contract Administration $100,000 2 Inspection (monthly) $240,000 3 Solids Handling and Disposal (monthly) $430,000 4 Boom Reset (2 -year cycle) $30,000 5 Repair of Equipment $150,000 6 Diversion Utility Costs $50,000 Total $1,000,000 * O&M costs will be evaluated annually in accordance with the terms herein. 3 Amounts above are estimates from an Opinion of Probable Censtruetion Cost referenced as "Engineer's Estimate 15-058" by AECOM dated 7/24/2015 based upon 60% Design Plans. Estimates include .5% allowance for All Risk Insurance and Wage Rates based upon prevailing wage rates for Orange County, California. Total wage rate includes hourly wage plus craft fringes and 32% burden with a typical work week of 1 eight hour shift per day/ five days per week. The Parties acknowledge OCFCO and COSTA MESA burden rates as Indicated in Sections 3.7 and 5.9 exceed that used to formulate the estimate above, and mutually agree OCFCD and COSTA MESA shall be fully compensated based upon their respective burden rates per the terms of this Agreement. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 46 of 69 20C-56 EXHIBIT D Temporary Construction Easement Deed County to City of Santa Ana 'E311111£t 'D RECORDED AT THE REQUEST OF AND WHEN RUVORDEI) MAIL TO: City of Santa Ana 20 Civic Center Plaza M-22 Santa. Ana, California 912702 Attn: City Manager APN: DOCUMEWARY TNAN.SFaR TM _ Coupated nn We eoaridaretion or value ofpnoperty conveyed. Exo nipt per Revenuo RTwaltion Cale Scotian 11922 _ Exanpt jloan Recording Fees per Oevt Code SEct10n27383 awunnme as neduxnnrr on xomer aaeaeem+wa rn:r mo.Al. unincorporated Area 10 lncorpmnted 0 Parcel Nos: PM- - _,,,_(F)1.209,'215) Project: Sant¢Ane:Dajn't Channel Divisinn TEMPORARY CONSTRUCTION EASEMENT ENT DEED Por valuable consideration, receipt of which is boraby apinrowlddgpd, COUNTY OF ORANGE, a political subdivision of the State of California, (herainafter referred to as "COUNTY"), does hereby grant to flip CITY OE SANTA ANA, a California charter city, (,horohadler referred to as "GRANTEE") null its, supcessnr an<l assigns, a non-exclusive temporary mnstrectiou pavement ("Temporary Ensampnt') hi, on, over, upon and across that certain real property (horeina@er retorted to as "Losement Aran') described in ms", and illustrated in 3x rih•t 3, which oxlrihits are attacluest Iterate and etude a purl lrcraef. COUNTY and GILMITIFE, may sometimes hereinafter be individually referred to as "Party" orjointly as the "Parties." The righty herein me granted for the purpose of allowing activities related to the Santa Ana -Delhi Channel Diversion Projper ("Proj ext') provided, however, that the esercjse of said rights will not interfere or impede t(te operation and maintelrance of' die Santa Ani Diversion. Ciumoal (hereinafter `the Chunrrel'), COUNTY'S public golf course Icsseo business operations, or utilization of the propeelty for John Wayne Airport purposes. GRANTEE'S rights shall include rights to GRANTEE, its officers, agents, employees, contractors, and subcontractors, to conduct construction activities, including excavation and grading associated with We construction of a Diversion Str acture requiring ntodifientinns to the existing Channel and installation of subsurfnce prunps, wet well, pipelines and a sower force main ("Facility') within a portion of the Easement Butlin Mn•Dulii lilwNi0a mjrrt (1+01) •r08 05/92016 Santa Ana -Delhi Channel Diversion Project Agreement DLS-013 Page 47 of 69 20C-57 Exhibit 1) Alta; and activities assochlod with realigmnent of an access road, GRANTEE'S rights shall also include the right to park or place vehicles, equipment or storage containers and to store or stockpile construction materials, tools, implements mrd Other construction related equipment And materials, in the Easement Arca as the case may lie. The Parties agree the exercise of the rights granted hereinshall be in conformity with the terms of that Certain Santa Ana -Delhi Charmol Diversion Rvjoct Agreement D15.013 dated("Agreement"). It is understood and Agreed by the Parties heroin mid their successor and assigns that the rights granted in this Tanporary Easement shalt be subject to the following terns, conditions, andreseavations: 1. TERM This Temporary Easement shall be affective for a maximum period of ttwegty-four (21) months (`Term'), commencing on GRANTEE'S written notice to the Airport Director mid the Director OC Public Wmka, or thch• designees, of conumucemont of possession, aml shall terminate upon recordation of a Notice of Completion, or at the end c)f the Teeny which "rtr first orcins. EXTENSIONS The Tenn may be extended by mutual agreement of the GRANTEE, the Airport Director mid Director of Public Works or their designees. Anyrequest for extension must to in writing, shall state the twquesled extension period, anti be forwarded to the Airport Director and the Director of Public Worts via Express or Codified U.S. Poatal Service, personal delivery, by Courter or by overnight delivery service and addressed as provided (rerein below in Section 11. (Notice) no later than thirty (30) days' prior to the expiration of the Term of ids Temporary Easement. Approval, of such requeat shall be deemed denied notices built Directors or their designees provide GRANTEE with written approval of the requested extension within f1floen (15) days of iweeipt of the request to extend, which approval shill not be unreasonably withhold, In no event shall this Temporary Easement be extended beyond,�,__,_.T 3. GRANTEE RESPONSIBILITIES GRANTEE hereby Acknowledges that the Easement Area lies in, on and about. die Channel, a regional flood control facility. GRANTEE alu llperform allwork in such it manner flat will allow for uttobstruetod flood controloperations and maintenance of tlac Channel by COUNTY or the Orange County Flood Control District ("District"). GRANTEE shall have all construction plans anti specifications approved in writrlg by die Airport D'uuctor and the Director of Public Works or their designoes prior to eommenccmeut of tory work in, on or About the Easement Amen;. and upon completion of any such work, GRANTEE shall immediately notify both Directors or their designees in writing of such completion. Any change orders to the approved plants and specifications than altar lie design shall be submitted for Airport Dirootm and the Director of Pubho Work's written approval through the County Property Permit process prior to implementation of the design change. Approval of GRAN'TEE'S cowdraction and/or rnlinkmance plans stall non be deemed approval fian the standpoint of structural safety, suitability for purpose or eonfonnuaeo with building or otha codes or otter governmental requirements. COUNTY is not responsible for permitting of any construction and/or maintenance, desiM assmuptions or accuracy of GRANTEE'S eonstruedratanVor maintenance plans. D'u•oetor approval will be based on the professional expatlse of the Engiucor of Record when approving GRANTEE'S construction andVor maintenance plans. GRANTEE shall, at no cost to COUNTY; maintain the Easement Area and Clannel in good i opak And in safe condition, and protect in: place may shape features, owes and/or landsoaping width' the Easement Area Santa Nm.D&I Dfwnlmr Mi ect(P(a) TOR 2 05191016 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 48 of 69 20C-58 Exhibit D throughout fits Term, including any oxtensionperiod, of this Temporary Easmnent• Notwithstanding the foregoing, saidfeatures may be removed or relocated if approved by tare Airport Director and 'the Director of Public Works througtttlte CountyProperlyl'umitprocess. GRANTEE shall, at no cost to COUNTY', conduct all activities, including but not limited to ale storage of materials, in, on, or about the EascanenI Area ht a nolo, good and worktnaallies annular athd in complinnoo whir all applicable building, fire, and sanitary laws, ordinances, and regulations and shall maintain all equipment, used in on or about the Ratsemeit Area in good repair and in safe condition. Airport Director may, at his solo disauf oo, direct GRANTEE to rurnovo items front the Easement Area, if deomed to be a handl or nuisance. GRANTEE acknowledges the Easement Arca is situated on COUNTY property with certain recorded deed restrictions and conditions prohibiting use oftlhe land for any purpose which would constitute It nuisance or be offensive to the senses, health or safety of parsons occupying the land or adjoining land. GRANTEE agrees to make every effort to accommodate for the aforementioned nuisance deed romictlon in the exercise of its rights herein. COMPI.IANCr,, WITH REG IJI.ATORY AUi'AORITIES GRANTEE shall, at its own coat and expenao, promptly and at all tines observe, comply widh and carry art all present and future orders, regulations, directions, rules, laws, orduaneo% permits and requirements of all governmental authorities, Including but not limited to environmental regulatory authorities, withjurisdietlon in, on, overlaid about fire Easement Area, which arise from GRANTEES use of a• performance of any activities permitted to be conducted in, on ,aver, or across the Easement Anal. - In addition, GRANTEE shell ensuko that all activities in, on, over or, about fire Easement Area are performed in accordance with any NPDIIS (National Pollutant Discharge Elimination System) permit requirements or other water quality statutes, regulations, ordinances, or permits, appliurblo to such activities, including but not limited to use of apprepriato best managerpenl practices, so as to ensure that pollutants are not discharged into the Channel nor into the flood central system. Pt ter to the start of any construction. activity, GRANTEE slash provide Airport Director and Director of Public Works a copy of their Wator Quality Management Plan (WQMP) for approval. No approvals or consonts given hereunder by COUNTY, as a party to this Temporary Easement, or concurrence by District shall be deomed approval as to compliance or conformance with applicable governmental codes, laws, rule.% or regulations. CONDI'T'ION OF h1ASE;NITsN'I` AREA UPON TERMINA'T'ION Prior to the tiling of the Notice of Completion or to the expiration ofttis Temporary Easement, whichover first occurs, GRANTEE agrees at its expense to restore the Easement Area to the Airport Director's satisfaction. Said restoration shall. include, but not he limited to the removal of cons unction materials (including stockpiled material), equipment, kind tush and debris. GRANTEE, agrees under no circumstances shall the Channel, pneility and other 1mprovonrsnts and/or facilities within the Easement Area be Ieil or remrnul to COUNTY in a state of partial completion or disrepair. Upon service of written demand Imm the Alport Director, or designee GRd',NTEE On It deliver to COUNTY, at no cost to COUNTY, a Quitclaim Dealt to GRAMMi'i right, title and interest hereunder. Santo MID01hl UVIN1011 VMJSct (r'at)'Wa 3 05191016 Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 49 of 69 20C-59 Exhibit D 6. MECHANICS LIENS OR STOP -NOTICES GRANTEE shall at all times indenmify, defend with counsel approved in writing by COUNTY, and save COIN'TY and District harmless from all claims, losses, demands, damages, cost, expenses, or liabilities in connection with ilia use, construction, repair, alteration, or installation of any portion of the Facility willing upon, or ander ilia Easement Area, and from the cost of defending against such eliinu, including reasonable attorney fees mid costs. in dip event a lion or stop -notice is imposed upon the Easement Area as a result of such construction, repair, alteration, or ingratiation, GRANTEE shall either: A. Records. valid Roleaae of Lien, or - - B. Procure and record it bond in accmdance with Section 3143 m3196 of ilio Civil Code, which trios the Easement Area from the claim of the lion or stop -notice and from any actionbrought to foreclose the lien. 7. HOLD IIARNILESS - GRANT7iE imlonowledgm the Easement Area is in, on, and over ilia Channel and maybe subj cot to all hazards associated with flood conditions nrul COUNTY's public gnlf course lessee business operations. GRANTEE agrees to assume all risks, financial or othorwise, associated therewith. GRANTEE herobyreleams and waives all claims and recmuse against COUNTY and District including the right of contribution. for Ions of or damage to property, or injury to or death of any person arising from, growing out of or in any way connected with of related to this Temporary Easement including any damage to or lees of GRAN'TEE'S equipment and material, Ute Facility or Interruption of die Prgjwt or use of the Easement Area caused by erosion, flood, or flood overflowcomlittons of the Channel, or aimed by the operations, maadmaneo, repair, reconstruction, replacements enlargement or improvement of the Channel or by District's flood control operations, except claims arising from the groes negligence of COUNTY and/or District, their officers, agents, employees and contractors. GRANTEE hereby agrees to indemnify,. dofand and hold harmless, COUNTY and District, their elected and appointed officials, offices, aganta, employees , contractors and those special digtticls and agencies which. COUNTY's BoardofSupervisors acts as the governing Board against any and all claims, tortious, contractual, condemnation, haversa condemnation,judgments, arbitration awards, settlements, losses, demands, damages, cost, orders, penalties, andexpensesincluding legal costs and attorney fees or liability for injury to or death of any persons, or logs of or damage to any property, in connectionwill or arising out of the Project or the use of or operations or activities conducted in, on, or over the Easement Asan, undlax the examine of the rights under this Temporary Emonrent by GRA NTE P, its agents, offices, employeas, hrvitecs or licensass except for liability origin out of the coneununt active, or sole negligent acts of COUNTY, and/or District, their elected and appointed officials, officers, agents, employees or contraWons including the cost of defense of any lawsuit arising dreref'osn. If COUNTY and/or District Winn named as co-dotendaud(s) in a lawsnt, GRANTEEsball notify COUNTY of such foot and shall rolinawnt DISTRICT/COUNTY in Ruch legal Refire mdess otherwise conflicted out. It'judganent is entered against COUNTY/Distdot and GRANTEE by a court of competent jurisdiction or jury because of the tortious conduct of COUNTY/District and GRANITE, COUNTY and GRANTEE agree flout liability will be apportioned as determined by the court orjury, as applicable. GRANTEE acknowledges that it is familiar with the language and provisions of California Civil Code Saetion 1542 whichprovides as follows: Beale Awnatla nivenloa Pryfuca(antras 4 05/92016 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 50 of 69 20C-60 I:xhlbit 1) A general release hoes not ectenzl to claims which the or a ilov down not!know or mvpeot to exkl In hos or her fervor of the time of ewcuh)lg the release, which, ii known by him or her, mast have nunerfaflly gffecred his or her seulzment with the debtor, GRANTEE, being aware of and understanding the; terms of Section 1542, hereby waiver all benefit of its provisions to tile extent described in this section. S. GRAN'TEE'S LIABILITY IrOR HAZARDOUS OR TOXIC M.ATIMIALS(PMES8.2S) GRANTEE or GRAN'TEE'S employees, agents, indopendentcontractors or invitees ("GRAN' EE Parties") shall not cause or permit any "Hazardous Material," as hereinafter defined;'to be brought upon, kept, stored, used, generated, released into the environment or disposed of on, under, from, in, on or about oho Easement Area. Notwithstanding [tie fmoguing, GRANITE or GRANTEE Parties may use or keep small tluanlitios of Ilazardous Materials on the Easement Area brat are used in the ordinary, customary, and lawfut construction. operations conducted on the Easement Area, If GRANTEE, or GRANTEE Parties breach tine obligations stated herein, or if contamination of are Easement Arun by Hazardous Materiut otherwise occurs for whicdr GRANTEE is legally ]tablo f l COUNTY for danuga }vaulting therafronr, than GRAMME shall indemnify, defend and hold hatmless, COUNTY and/or District, amt their elected "appointed ot'ficia1% officers, agents, and employees from any. amt all claims,,tudgments, damages, penalties, fines, casts, liabilities, or losses (including, without limitation, dimimation in vahm of the Easement Area, some ,paid in settlement of alp lots. attorney fees, consultant fees, and expert withers fees) which arise during or atter GRANTEE's use of the Easement Arca as a result of such contamination. This indemnification includes, without limitation, costs incurred by COIN IX in ommootion with aqy invesfigation of site conditions or ally cleanup, remedial, vanoval, or restoration work required by any federal, state, or local governmental entity or agency because of He'r.ardoas Material lowing been introduced, placed or released by GRANTEE, and therefore, being present in the soil or ground water under the Easement Area GRANTEE shelf promptly take all action, at its sole cost and expense, as is necessary to Berm, remove, and restore the Easement Area to its condition prior to tine iaboduution of such Hazardous DAiterial by GRANTPtF., provided GRANTEE shall first have obtained Director's writivn approval and dui approval of any necessary governmental entities or agancies for any such rumodial action, - As used herein, the term `Tlazardous Material" nreans;ony hazardous or taxi, substance, material, or waste which is or slrall'.hoconlo regulated by any govomment'al entity or agency, Including, without limited an, the County, the state of Califamia, or the United States govemment RESERVATIONS COUNTY hereby reserves for itself mud District and their respective successors and assigns, such surfaco, subsurface and auiat rights in tho Eosanent Area as will not unroasmmbly interfere with or prohibit, the use by GRANTEE of the rights and easement l nein granted. In the event COUN'T'Y exercises such rights to utilize the Easement Area which use results in the disturbance of the Easement Area, COUNTY'S only responsibility shall be to backfill with compacted earth to the grade of the surrounding property following completion of Such not]vity. 10. CONVEYANCE SUBJECT TO EXISTING INTP,R)fM'S Tids'Temporary Easement is subject to existing contracts, loaaes, licenses, easements, encumbrances, and olaims which may affect the Emorrou tArea and 1110 ural of tine word "grant" 1101,0111.911011 not be konatruall as a covenant against the existence of any (hereof. Santa M.-Whl lavasim praieet(Vol) TCL $ 05192016 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 51 of 69 20C-61 Exhildt 1) Nothing contained horeln, or in any document related hereto, shall be construed to imply the conveyance to GRANTEE of rights in die Emoment Arca which exceed those owned by COUNTY, or any representation or warranty, cithor oxpreas or implied, totaling to the nature or condition of the Easoniont Area or COUNTY's jnlarantthorein. 11. NOTICES All notices, documents, corraspandonoe and communications concerning this Temporary I'?asomnnt shall be addressed an set forth in this Section, or as the Parties may hereafter designate by written notice, and shal I be sent though the United States mail with postage prepaid. Any such mailing shall be deemed served or delivered twenty-;fear(24) hours after malting'. Each Party may change the address for notions by giving the other party A least ton (1.0) calendar ddys' lwior written notice of the now address. Notwithstanding Ste above either Party may also provide notices, documents, corvespondenoe, or such outer wrtnnutsiontiom to the other by personal delivery and so given shall be accrued to have been given upon receipt. Director of OC Public Works Shane Sihby 300 North Flower Street Santa Ann, CA 92703.5000 1+acsintile: (714) 834-2395 RE: D15-013 Santa Ann -Delo{ Diversion (FO]) John Wayne Airport - Airport Director Bury A. Randinelln 3160 Airway Avenue Costo N16a, CA 92626 Facsimile: (949) 252.3174 RE: Sara Ams -Delhi Diversion Project TCE 12. VENUE (PMES 13AN) City of Santa Ana City Manager 20 Civic Center Plaut M•22 Santa Ana, CA 12702 Phone: Fax: Email:. The Parties hereto agree that this Temporary Easement has been negotiated and executed in the state of California and shall be governed by and construed union die laws of California. to the event of any legal action to enforce or i.ntorprot ads Temporary Easement, the sola and exclusive venue shall be a court of eompetant,inrisdiclion loomed in the County of Los Angeles, California, and the Pastios hereto agree to and do hereby submit to the jurisdiction of such court. Voratermore, absent good cause shown, rho Parties hereto specifically agree to waive any and all tights to request that an action he transferred for trial to anchor county. 13. 'WAIVER OF RIGHTS (MM814. 13) The failure of COUNTY to insist upon strict performance orally of the terms, covenants, or conditions of this Temporary Easement shall not be creamed a waiver of any tight or remedy, that COUNTY may have, and shall not be deemed a waiver of the right to require strictorl'armnrue of all die teems, covenants, and conditions orthe 'Temporary Easementdru•oafter, nor a waiver of�any remedy for the subsequent breach or default of any term, covenant, or condition of thin Temporary Easement. .Aurin Nen-1)01111 DIVIN1011 Projun(P01) WE 6 0502016 Santa Ana -Delhi Chantel Diversion Project Agreement D15-013 20C-62 Page 52 of 69 Exhibit 1) 14. SEVERABILITY(PMES15. 1S) If Any term, covenant, condition, or provision of this Temporary Easement is hold by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of tho provisions horeof shalt remain in 1411 foreo and affect and shalt in no way be affected, impaired or• invalidated tmreby, 15. ATTORNEYS'ITF SI MES16, 1.5) In any Action or proceeding brought to onforee or interpret any provision of this Temporary Easement, or where any provision hcreof is validly asserted as a defense, each Party shall bear its own Attorney%, fees mrd costs. 16. SUCCESSORS AND ASSIGNS(MIES1SAS) The terms, covenants, And conditions contained herein shall apply to And hind the heirs, successors, executors, administrators and assigns of the Parties lusroto, 17. AUTHORITY(PrNIES20, IS) The Parties to this Temporary Easement represent And warrant that this Tempotnty Easement has been duty anthor•Ized and executed and constitutes the legally binding obligation of their respective organiraton or entity, enforceabto in accordance with its terms. 18. FAA CON9)ITIONS ANI) I'YI' ER.VATIONS A. COUNTY imreby resorvas tato itsolf And its operator John Wayne Airport, And their respective succomors and assigns, for the tsc and benefit of tato public, aright of flight for The passago of airerat't in the airspace above die surl'aco of the shove described real properly, together with the right to cause in said airspace such noun as may be inherent in the operation of Aircraft, now known or hereafter usedfor navigation of or Right in the said airspace, and for use of said airspace for landing on, taking off from or operating on Soler Wayne Airport. B. GRANTEE by entering into this easement, expressly agrees, for itself, its successors and assigns, that It will not erect nor permit dao erectionof tory savetwo or building not permit object of natural growth or outer obstruction on tiro above described teal property above a height as detet•rnined by the Application of tho requirements of 14 C.F.R„ Pmt 77 (FAR Part 77), At the event the aforesaid. covenant Is breaehod, COUNTY reserves the right to enter on the above doscribgd real proporty and to remove the offending structure or object and to out the offending natural growth, all of whichshill beat tho expense of the GRANTEE. C. GRANTEE by entering into lids casemont, expressly agrees, for itself, its successors And assigns, that it will not make use of the abovedescribed real properly in any manner wbioh might inbufere with the landing and taking off of aircraft at. the Soler Wayne Airport, or otherwise constitute an airport hazard. In the event the aforesaid covenant is breached, the COI JNTY reserves the right to enter on the said real peoperty and cause the abatement of such interfQn rice at lie expense of GRANTEE. 1), GIRANTEE exprossly agrees, for itself, its successors and assigns, that ii'mquir'etl, it Will file f'eder'al Aviation Adaninistration (FAA) Foran 7460.1, Notice of Proposed Construction ar Alturatimr (or such other official form As deslintted), for the purpose of aitsimo evaluation for Any and all current and future construction or modification proposed on the above described real property. Signature Pages to Follow Runts AlWo,lhl Malts) Project(Fol)TCT- Resents Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 53 of 69 20C-63 Approved as to Form Office of the County Counsel Orange County, California Qy: _...... Paul M. Albarinn, Senior Deputy Data Exhibit 1) COUNTY COUNTY OF ORANGE, a political subdivision of the State of Ca il'omin By: Barry A. Rondinellu, Airport Dn'actor Date: Par Minuto Ordor doled ie identify oflhe im&vidunt who signed the document to ams coradcato is attacad, mid art the [ru[hEWness, ace ditvofthutdC.=enf, ACKNOWUDGMEW STATE OF CALIFORNIA ) co'UNrrorr ) On , 20,^ before me, '~ (Lisa name dNotary P01,11e k data) personally appem'ad.-__m____ - , who proved to me onthe basis of satisfactory evidence to be thdperson(s) whose name(s) Ware subscribed to the within instrument and nalmowledgod to me that he/sholthoy executed the same in his/hon/their amhorired copacity(ies), and that by higher/their slbPnatura(s) an the instr m em the pei'san(s). or the entity upon behalf of which the parson(s) acted, executed the instrument I oertify under PENALTY Or P1iRMY ander the laws of the State of California that des fm agohig paragraph is area and 0orreaS. WITNESS my hand and official seal. (Seal) Sante AnWDeIIi I DlvereMan Nojcct(F01) TCL B Santa Ana -Delhi Channel Diversion Project Agreement D15-013 20C-64 0502016 Page 54 of 69 E,011 it D GRAMME Approved as to Form MY OF SANTA ANA, a California charter city By: _.... ---__.—..—... By: --._._.,__.._....----..._._.._ Date: Date: mly the Weekly of Ibe m(lividual who signed fie domestic Allah fids carfinoats is aftwbcd, and not the tmthftdness, acomeoy, ar rnlidityof that dooauent. ACKNOWLEDGMENT STATE OF CALIFORNIA ) cavrrTY or .._.... __..._._._.) On ; 20 _..._ before me; (Insert m;m of Notmy Public %fila) personally appeared___.._.._.._....__._.__._.-._._...._-...__.._.....�___—.._....�..—.—._._ who proved to me oathe basis of satisfactory evidence to be the person(;) whose name(;) Wars subscribed to the within insnvmant and aoknowleclg'ed to me that ha/sbefthey executed the sane in his/her/thou authorimd capneity(ies), and that by his/herhheir signatvie(s) an the instrument the person(s), a the entity upon behalf of which the person(s) acted, erecutad the instrument I cetti(y under PENALTY OF PERJURY under the laws of Phe .State of Cantarnia that the f0coB'oing paragraph is ¢rue slid coact. WITNESS my hand and official seal. Signature___'___...__._......_._.�_._._.....____..._ (Soal) $Naha Alla.nelhl iavuioa])iujecluYbl) I' C9 9 05191016 Santa Ana -Delhi Channel Diversion Projeot Agreement D15-013 Page 55 of 69 20C-65 Exhibit D CONSR,NT TO GRANT ON TEMPORARY CONSTRUC".TION EASEMENT DEED TflE IRVINE COMPANY, a corporation, does hereby consent W the foregoing great of this Temporary, Construction Easement Deed; provided, however, that suoh consent shall Apply to said Temporary Construction Easement Deed exclusively, anti that such consent shall not be deemed or held to waive, release, alter, change, impair or in tiny manner affect any of die covenants and conditions provided in the deed dated June 30, 1958 by which the undersigned conveyed W the County of Orange due property doscribed hr said Temporary Construction Easement Deed. TIIE IRVINE COMPANY By;. Sailu Aitamihl EAVCH1011 PnIxtt,P01) TM 10 05192016 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 56 of 69 20C-66 Exhibit D CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY, that the interest conveyod by thls'Yompm airy Construction Basement Decd from the County of Oraige, a Political subdivision of the Stott of Cnlifornin., to tho City of Santa Ana, a California chnrtcre city, is hereby accepted pursuant to authority gt'onted to tht undersigned by m:der of the Santa Ana City Council on_ 20, subject to the terms, conditions tmd reservations set forth therein, mol (.bRANTEB consents to the recordation o£ said Temporay Construction I:nsement Decd. GRANTEE CITY OF SANTA ANA By: Date: ATTEST: City Clerk smnn Aum -Deli ntrrrsme Prolur (FO I) s:Cn 11 051 Same Santa Ana -Delhi Channel Diversion Frojeet Agreement D15-013 Page 57 of 69 20C-67 RECORDED AT TILE REQUEST WHEN RWORDED MAIL. TO: Count yy of Orange CEM[Lal Estate 300 North Flower Santa Ana, California 92703 Ait'fax Statmnents as shown above ❑ Unincorporated Area R Iranporetad, City of Newpon Beach EXHIBIT E Easement Deed EXHIBIT E This is to Certify that this document is exmnpt from rewording fees per Govt. Code See 273$3 and Is exempt from Momentary Transfer Tax per Rev. & Taxation Code See. 11922. Dy: SNINA k alCL11<ANY &Ae11HTll611'IiNIMINCI A. Paroot No.: FOL .215, r01 - Project: Santa Ana -Delhi Divenuan Chnanal EASEMENT AMENDMENT DEED POR A VALUABLE CONSIDERATION, receipt of which is horehy adorowlcdged, thus nmenrhnont ("Amendmunt'j to Ilett ecmtain Easement Decd dated and recorded on Augrlst $, 1961 in Bonk 5862, Page 311 of the Official Records of Orange County, California ("Easement") attached hacto as Exhibit C. is entered into by and betwoon COUNTY OF ORANGIt a political subdivision ofdre State of California, its successors and assians (hereinafter referred to as `GRANTOR"), and the ORANCLE COUNTY FLOOD CONTROL DISTRICT, (a body corporate and politic, hereinafter referred to as "DISTRICT")(GRANTOR. unit DIST'RIC'T may soinctintes hereinafter be individually referred to as "Party" or,iohrtiy as °`Parties"). RECITAL 1. Pursuant to the Easement, DISTRICT holds a perpetual easement and right of way for flood control Purposes in, over and across that certain real property identilied and described in that document as the oosoment area within Parcel F01.215. Pursuant to those Easornrast rights, DISTRACT operates and nuuntains its flood eonh'ol P.teility known as the Santa Ana-Dotbi Divonlct Channel, Facility No. P01 (the "Facility"). Page I of 7 Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 58 of 69 20C-68 EXHIBIT E 2. The County of Grange, Board of Supervisors on _ _- approveet Santa AmrDelhi Channel DivorsionProject Agreement DIS -013 anvmg GRANTGR, DiSTRIC'i', City of Santa Ana, City of Newport Beach, City of Costa Mesa, Orange County Water District and the hvine Ranch Water District in furtherance of a regional watershed project to divert dry -weather urbandischarge flows and trash from the Santa Ani -Delhi Diversion Channel to satisfy water duality compliance requirements (VeoJect'9. Implumentatimr of the Project entails construction of a Diversion Structure requiring modifications to [lie existing Facility and installation of subsurface pumps, wet well, pipelines and a sewer force main within a portion of the Easement Area; and roaligmnent of an access rand. 3. By this Amendment, the Parties Intend to modify ilia existing Easement to add an additional easement was, referenced as Parcel Fill • -,_immediately adjacent to Parcol Fol. 215 by this Amendment. Parcels F01-215 and Parcel F01 4. 'rhe Parties understand and agree to comply witlt the tams, conditions and obligadans of that certain Grant Deed recorded June 30, 1958 in Book 4332, Page 308 in the Official Rccm•ds of Grange County, California which vests all rights,title, and interest in the Easement Area (as defined herein below) with GRANTOR. 5. 'rhe Parties intend to add tarns W the existing Easement to foster collaborationin their joint use of the subject property, 6. Other than the terms heroin, this Amondment shall not otherwiso affect; altar, or chango the Eascmont. As to any inconsistency existing between with ilia terms of this Amendment and the terms in the Easement, the Parties agree the terms of this Amendment ghall control. 7, For the above stated reasons, the Parties agree to amend (lie Easement with Ilio toning and conditions herein to apply to the Easement Area, NOW,. T14EREMRK for valuably consideration, reueipt of which is hereby acknowledged, tho Parties agwo to the following terms, conditions, and resor atoms: A. RECITALS Each of the above Recitals is incorporated herein and is true and correct. B. INSERTPARCFI,FOI• C,CIGAT. 1)I38C12IP'TION ANi)7)FPIC'1'ION GRANTOR hereby conveys to DISTRICT the ability to oxcruiso its rights pursuant to the Easement in, on, under and over land hnmediately adjacent to the existing Parent F01.215 easement area, upon land rofenwd to heroin as Pa"I Fol- is doflned In Exhibit and depicted in Exhibit B, eaolr arfached hereto and incngioraked.hcmin. C. ADD SECTIQN.1 The following is hereby added to {lie Easement as Section 1: Section 1. The above legal description for Parcol 1701.215 and the attached legal desaviption in Exhl it A for Parcel F01- —as depicted in Exhibit B, which exhibits are attached hereto and by reference sstuda n part hereof, shall collectively dofrna the'Usemenl Area"Dec the rights conveyed herein. Page 2 of 7 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 59 of 69 20C-69 EXHIBIT E D. ADD SECTIDN2 The following is hercbyadded to the Eascruent as Suotion 2: Section 2. All notices, documents, correspondence, and couununioatimis-concerning due perpetual easement shall be addressed as set forth in this paragraph, or as the parties may lierea'fW designate by written notice, and shall bo sent dnough the United States mail, duly registered or certified with postage prepaid. Any such mailing shall be deemed sawed or delivered twenty-four (24) hoursaftermailing. Each party may change the addressfor notices by giving the other party at least ton (l)) calendar days prior written notice of the new address. Notwithstanding the above, a patty may also provide notices, documents, conrspondenco, or such other communications to tire other party by personal delivery or regular mail and, so given, shall be deemed to have been givenupon roceipt if provided by personal delivery a fortycight (4.8),hours after mniting if provided by regular mail. if to GRANTOR; County of Orange c/a John Wayne Airport Airport Director 31.60 Airway Averse Costa Meta, CA 92626 Facsimile: (949) 252-5174 RE: Santa Ana-Dolld Diversion Project Ifto DISTRICT; Orange County Flood Control District iso Director, OC Public Works P. O. Box 4048 RE: D15.013 Santa Ana -Delhi Diversion (F01) Santa Alm, CA 92702.4048 E. APD SECTION 3 The fallowing is hereby added to die Easomenl as Section 3: Section 3. GRANTOR agrees drat it shall not gran( any em4$ee, subsurface or aerial rights in lite basement Area as will unreasonably hstetfore with a probibit die use by DISTRICT of the right% and ousematrt herein granted. GRANTOR reserves all rights compatible with and not prejudicial to DISTRICT eeercise of due rights and easement herein granted; provided, or, improvements shall be constructed, placed or permitted within, upon, under or above the Easement Area until such construction and/or maintenance plans have first been approved in writing by the Airport Director and the Director of Public Works of County of Orange or their designees. Director approval of GRANTOR's plans shall not be deemed approval from die standpoint of structural safety, suitability for purpose or conformance will, building or other codes or other govenunental requirements. E. ADD SECTION 4 Tho following is hereby added to tine Easement as Section 4: Section 4. FAA CONDITIONS AND RESERVATIONS A. COUNTY hereby reserves nolo itself and its operator John Wayne Airport, and their respective successors anti assigns, for the nun and banotlt of due public, a right of flight for the Passage of aircraft in the airspace above die surface of the above doscribed real property, together with tine right to cause in said Page 3 of 7 Santa Ana -Delhi Channel Diversion Project Agreement DIS -013 Page 60 of 69 20C-70 EXHIBIT E airspace such noise as may be inherent in the operation of aircraft, now knmivrtat hereafter used for navigation of or flight in [lie said airspace, and for use of said airspace for landing on, taking off from or operating on John Wayne Airport. B. DISTRICT by entering into this easement, expressly agrees, for itself, its successors and assigns, that it will not croetnor permit the creation of a y stntatoro or building nor permit object Of natural growth or other obstruction on the above described real property above a height as determined by the application of the requirements of 14 C.C.R., Part 77 (PAR Part 77), In fire event the aforesaid covenant is breached, COUNTY reserves tie right to enter on the above described real property and to remove the offending strueturo or object and to cut the offending natural growth, all of which shall be at the expense of the DISTRICT. C. DISTRICT by entering into this casement, expressly agrees, for itself, its successors and assigns, that it will not make use of the above described real property in any mamror which might interfere with the lauding and taking oil' of aircraft at the John Wayne Airport, or otherwise constitute an airport hazard. In the event the aforesaid covenant is breachmd, the COUNTY reserves the right to enter on the said real property and camo the abatement of such interference at the expense of DISTRICT. D• DISTRICT expressly agrecs, for itself, its successom and assigns, that if required, it will file Pedoral Aviation Administration (pAA) form 74604, Notice of proposed Comahuction or Alteration (or such other official form as designated), for the purpose of nhspace avalnation fur any and all current amt fina'e construction or modification proposed on the above doseribed real property. G. ADI) SECTION 5 The fallowing section is hereby added to the Basement as Section .5: Section 5. ACCESS TO EASEbIENT' AREA DISTRICT:' agrees to notify GRANTOR's Airport Director or designee prior to DISTRICT'S commencement of, repair or relocation worst In the Easement Area. GRANTOR shall have the right to designate Ane access to the Easement Area through GRANI'OR's property by written notice to DISTRICT. This doaignated access route shall reasonably acconnnodate DISTRICT'S maintenance vehicles. In the event of a need far tlhe GRANTOR to change tie somas location, GRANTOR shall attempt to give ten (10) days written notice. Said notice shall be given by Airport Director or designee. II. ADD SECTION 6 The following section is hemby added to the Easement as Section 6: Section 6. REMOVAL AND/OR ABANDONMENT DISTRICT agrees that in the event the service for which said facilities were constructed is ordered discontinued and DISTRICT is not required by law, title, or, regulation of any governmental authority to furnish said service or in the eventthe use of the facilities ceases for a period of more than one (1) year without writ ai notice fram DISTRICT to GRANTOR of the circumstances affecting such suspension and of DISTRIC'T'S intention to resume usage of the facilites, DISTRICT, at :Director's request, and at no cost to GRANTOR, shall promptly remove and/or abandon any portion of said facilities owned, operated, and maintained by DISTRICT, after reoeipt of written notice from Airport Director to remove and/or abandon Lh the event of such removal and/or abandonment, DISTRICT shall execute and record in the Official Records of Orange County, California, a Quitclaim Deed sufficksin to remove the encumbrance of this casement from title to the Easement Area. Page 4 (if 7 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 61 of 69 20C-71 EXHIBIT E 1. ADD SECTION The following section is hereby added to the Easement as Section 7: Section 7. COMPLI'1NCE WITH REGULATORY AUTHORITIES D[STRICI' shall, at its awn coat and expense, promptly and at all times observe, comply with and cart' out all present and future arders, regulations, directions, rules, laws, ordinances, permits and re<tuirsav nta of all governmental authorities, including but nut limited to environmental regulatory authoritiem, with jurisdictionin, on, over and about the Easement Area, which arise from DISTRICT'S use of or perfornrmrce of any activities permitted to he conducted in, on, over, or across fife Easement Area. In addition, DISTMCT shall ensure that all activities in, on, over ar about the Easement Area mro perhunwil in accordance with any NPDES (Nothnad Pollutant Discharge Elimination System) portaft requirements or other water quality atomics, regulations, ordinances, or permits, applicable to such activities, including but not finned to use of appropriate best management practices, so as to an9uro that pollnnmts are not discharged into the Channel oar into the Flood control system. Prior to die shut of any construction activity, DISTRICT shall provide Airport ])hector and Director of I'rrblio Works a copy of their Water Quality Managcnrent Plan (WQMP) for approval, No approvals or consents given hereunder by COUNTY, as a party to this Easement shall be deemed approval as to compliance or conformance with applicable governmental codes, Laws, rules or regulations. Signature Page Follows Pago 5 or 7 Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 62 of 64 20C-72 Approverl as to Corm office of the County Counsol Orange County, California By: All arias, Senior Deputy Lista: EXHIBIT E GRANT County of Orange, a political Subdivision of the State of California John Wayne Airport Barry A Rondinalla, Airpm't Director Date: Por ivlinuto Order dated: A nannypubilo or other officer compleHngtlis oatlflente verifies may the Idmaityorthe indvidout who signed the document to wivoh this oadificom is attached, ani act lira outhfidne o, awwaog or validity or that doermnm t. State of California County of Orange ACKNOWLEDGNIM1' 20—before me, , personally gaemnna,raa.aremnn appeatrod_____._...__-_..._.._.� who proved to me on the basis of satisfaotory evidence to he the parson(s) whose rame(s).ia/are aubsuribed to the within instrument and acknowledged to me that he/sheIntey executed the same in hls/heotheir authorized capaclly(las), and that by hierher(their signafwe(s) on the inmtrumont file person(a), or the entity upon behalf of which the personas) acted, executed the instrument, T certify under PRN At, rY OF P1ll2TURY under tho Iowa of the Stat. of California that de foregoing paragraph is tae and correct, WITNESS my hand and official veal. (Scat) Pago 6 of 7 Santa Ana -Delhi Channel Diversion Project Agreement DI5-013 20C-73 Page 63 of 69 EXHIBIT E CERTIFICATE OF ACCEPTANCE This is to certify that Ura interest in real property convoyyed by the within dead or grant to the ORANGE COUNTY FLOOD CONTROL D151RICE, a body corporate and politic, is horeby accepted by order of the Huard of Supervisors of the County of Orange, California, acting as the governing bond of the ORANGE COUNTY FLOOD CONTROL DISTRICT, acrd the ORANGE COUNTY FLOOD CONTROL DISTRICT consents to recordation thereof by its duly authorised officer. ORANGE COUNTY FLOOD CON'T'ROL DISTRICT Datod: By: Shanc I. Silky, Director OC Public Wor6x Por Minute Order dated Approved as to Foran Office of the County Counsel Orange County, California By: Deputy Date: Page 7 of 7 Santa Ana -Delhi Channel Diversion Project Agreement DIS -013 Page 64 of 69 20C-74 EXHIBIT F OCTA Tier 2 Guidelines are available at OCTA's website; at the following link: htt :/p /www.octa.net/pdf/CTFPGuidelines.pdf Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 65 of 69 20C-75 EXHIBIT G Insurance, Bonds and Warranties I. Design and Construction Insurance Requirements All consultants, engineers, mitigation agents, the Contractor and each subcontractor to perform work on the Project environmental, design and construction or satisfy obligations in this Agreement shall maintain and provide OCFCD, or COSTA MESA if applicable, with proof of insurance for coverage as set forth below prior to commencement of work: Coverage/Limits Coverage Minimum Limits Commercial General Liability with $1,000,000 limit per occurrence products and completed operations and $2,000,000 aggregate contractual liability Automobile Liability including coverage $1,000,000 limit per occurrence for owned, non -owned and hired vehicles Workers' Compensation Statutory Employer's Liability Insurance $1,000,000 limitper occurrence Professional Liability Insurance $1,000,000 limit per claims made or Occurrence $1,000,000 aggregate Required Coverase Forms The Commercial General Liability coverage shall be written on Insurance Services Office (ISO) Form CG 00 01, or a substitute form providing liability coverage at least as broad. The Business Auto Liability coverage shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a substitute form providing liability coverage as broad. Oualified Insurer The policy or policies of insurance must be issued by an insurer licensed to do business in the state of California (California Admitted Carrier) or have a minimum rating of A - (Secure A.M. Best's rating) and VIII (Financial Size Category) as determined by the most current edition of the Best's Ivey Ratinu Guide/Property-CasualtylLhiited States or ambest.com Required Endorsements The Commercial General Liability policy shall contain the following endorsements, which shall accompany the Certificate of Insurance: Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 66 of 69 20C-76 1) An Additional Insured endorsement using ISO form CG 2010 or CG 2033 or a form at least as broad naming each Party and MA and its elected and appointed officials, officers, employees, and agents as Additional Insureds. 2) A primary non-contributing endorsement evidencing that the contractor's insurance is primary and any insurance maintained by any Party shall be excess and non-contributing. 3) A Products and Completed Operations endorsement using ISO Form CG2037 (ed. 10/01) or a form at least as broad, or an acceptable alternative is the ISO from CG2010 (ed. 11/85). All insurance policies required herein shall waive all rights of subrogation against the Parties and their respective elected and appointed officials, officers, agents and employees when acting within the scope of their appointment or employment. If a Professional Liability policy is a "claims made" policy, that contractor shall agree to maintain professional liability coverage for three years following completion of construction and acceptance of work. The Products and Completed Operations coverage shall also be maintained for three years following completion of construction and acceptance of work. The procuring of such required policy or policies of insurance shall not be construed to limit the Contractor and/or its subcontractor's liability, nor to fulfill an indemnification provisions and requirements, nor in any way to reduce the policy coverage and limits available from the insurer. Required Bonds Contractor shall provide a faithful performance bond, payment bond, and warranty bond (individually "Bond" or collectively "Bonds") subject to Director prior approval and the terms herein. Each Bond shall name the Parties as beneficiaries and grant each Project Representative the right to enforce the bond to complete the Facilities in compliance with all constriction obligations including but not limited to those for warranties. Sureties providing these Bonds shall be a Treasury Listed Surety Admitted in California (Federal Register) with a current minimum Best's Key Rating of A- and a Financial Size Category (FSC) of VIII or better. Contractor shall pay all premiums and costs thereof and incidental thereto. SANTA ANA and the Project Representatives agree to not release the Contractor from its Bond(s) without the first obtaining mutual written approval by the Project Representatives. Release of a warranty bond(s) shall occur no earlier than the third anniversary of the sign -off date on the applicable CPP(s). Contractor to provide faithful performance bond(s) in an amount to cover 100% of the estimated construction cost for the Facilities (including labor and materials) to insure the Contractor's faithful performance of all work under the construction contract and the replacing of, or making acceptable, any defective materials or faulty wor1cmanship. No alterations, time extensions, additional work or other changes authorized by the Agreement or the contract may be made without securing consent of the surety or sureties on the Bonds. Saata Ana -Delhi Channel Diversion Project Agreement D15.013 Page 67 of 69 20C-77 Contractor to provide payment bond(s) in an amount deemed the by Project Representatives as sufficient to guarantee the Contractor's faithful performance of contract obligations, including those required for warranties and any performed post -construction, Required Warranties Contractor to warrant that materials and equipment furnished be new or good quality and carry all available manufacturer's and installer's warranties and that construction be of good and workmanlike quality in accordance with the terms of this Agreement for a period of three years from completion of Project construction and the sign -off date on applicable CP'P(s). Any work not conforming to these requirements shall be considered defective work. The construction contract shall not limit the time that owner of improvements has to pursue any action for defective work for a time period less than the applicable statute of limitations. II. Operation and Maintenance An O&M contractor(s) shall maintain and provide OCFCD and/or COSTA MESA, with proof of insurance for coverage, at minimum, as set forth below; Coverage/Limits Coverage Minimum Limits Commercial General Liability with products and completed operations and contractual liability $1,000,000 limit per occurrence $1,000,000 aggregate Automobile Liability including coverage for owned, non -owned and hired vehicles $1,000,000 limit per occurrence Workers' Com enation Statutory Employer's Liability Insurance $1,000,000 limit per occurrence Required Coverage Forms The Commercial General Liability coverage shall be written on Insurance Services Office (ISO) form CG 00 01, or a substitute form providing liability coverage at least as broad. The Business Auto Liability coverage shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a substitute form providing liability coverage as broad. Ouaiifred Insurer The policy or policies of insumce must be issued by an insurer licensed to do business in The State of California (California Admitted Carrier) or have a minimum rating of A - (Secure A.M. Best's rating) and VIII (Financial Size Category) as determined by the most current edition of the Best's Key Rating Gtrrde/Property-Casualty/United States or ambest.com Santa Ana -Delhi Channel Diversion Project Agreement D15.013 Page 68 of 69 20C-78 Required Endorsements The Commercial General Liability policy shall contain the following endorsements, which shall accompany the Certificate of Insurance: 4) An Additional Insured endorsement using ISO form CG 2010 or CG 2033 or a form at least as broad naming each Party and its elected and appointed officials, officers, employees, and agents as Additional Insureds. 5) A primary non-contributing endorsement evidencing that the contractor's insurance is primary and any insurance maintained by any Party shall be excess and non-contributing. 6) A Products and Completed Operations endorsement using ISO Form CG2037 (ed. 10/01) or a form at least as broad, or an acceptable alternative is the ISO from CG2010 (ed. 11/85). All insurance policies required herein shall waive all rights of subrogation against the Parties and their respective elected and appointed officials, officers, agents and employees when acting within the scope of their appointment or employment. The procuring of such required policy or policies of insurance shall not be construed to limit the contractor and/or subcontractor liability, nor to fulfill an indemnification provision and requirement, nor in any way to reduce the policy coverage and limits available from the insurer. Santa Ana -Delhi Channel Diversion Project Agreement D15-013 Page 69 of 69 20C-79 20C-80 SANTA ANA DELHI CHANNEL DIVERSION PROJECT RESPONSE TO COMMENTS ON INITIAL STUDY/MITIGATED NEGATIVE DECLARATION Prepared for: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 March 2016 Prepared by URS Corporation 999 Town and Country Rd Orange, CA 92868 Contact: Joseph Long, PE 7t4-352-1528 OFT, e 0 Table of Contents 1.0 Introduction................................................................................... 1 2.0 Response to Comments............................................................................................... 3 2.1 Comments from Orange County Public Works (Flood Programs Environmental Resources, and Trails)................................................................................................... 3 2.2 Comments from Santa Ana Regional Water Quality Control Board ................................ 8 2.3 Comments from Orange County Water District (OCWD)................................................ 9 2.4 Comments from John Wayne Airport(JWA).................................................................10 2.5 Comments from Department of Transportation (Caltrans)............................................10 Attachments A Comment Letters on the IS(MND B Updated Watershed Drainage Map C Revised Figures 5 and 6 with labels for Golf Course and Pedestrian Bridge D Revised Page 3-1 showing OCFCD as a Project Sponsor 200-82 1,0 INTRODUCTION URS prepared an Initial Study/Mitigated Negative Declaration (IS/MND) for the ,proposed Santa Ana Delhi Diversion Project (Project) which evaluated the environmental effects of the Project in accordance with the California Environmental Quality Act (CEQA Guidelines). The Project is intended to remove dry -weather channel flows from the Santa Ana Delhi Channel watershed and divert said flows into the Orange County Sanitation District's regional collection system for treatment prior to discharge into the ocean or to be utilized as source water for the regional Ground Water Recharge System. The primary intent of the Project is to protect Upper Newport Back Bay from additional pollutant loading generated by flows from the Santa Ana Delhi Channel watershed. The proposed Project consists of three major components: 1) dry -weather diversion; 2) floatable debris removal system; and 3) pumping facilities to the regional sewer collection system. The Project also includes a 1.6 mile pipeline in Bristol Street to the regional sewer in Baker Street in the City of Costa Mesa. The proposed Project will be located within the Newport Beach Golf Course, adjacent to the east side Aerial Overview Santa Ana Delhi Diversion Project Location of the Santa Ana Delhi. Channel approximately 900 feet upstream of the Irvine Avenue. The Project is being developed with cooperation between the Cities of Santa Ana, Newport Beach, and Costa Mesa, Orange County Public Works (OCPW) and the Orange County Flood Control District (OCFCD) (Project Stakeholders). The Project is viewed as a multi -functional benefit and regional water duality improvement project associated with the current and fixture NPDES requirements and specifically in accordance with the proposed trash amendment to the existing Municipal Separate Storm Sewer System (MS4) permit requirements. The IS/MND concluded that construction and operation of the Project would not result in significant adverse impacts to the environment. In accordance with the CEQA Guidelines, the IS/1YIND was circulated for public and agency review for a period of 30 days. This review period began on January 27, 2016 and ended on February 25, 2016. Public notice of availability was published in the Orange County Register on January 27, 2016, The Notice of Availability was also provided to the Orange County Clerk's office. The IS/MND was available for review at: • City of Santa Ana Public Works Counter • City of Santa Ana Public Library • Orange County Public Library—Mesa Verde Branch (in Costa Mesa) • City of Santa Ana Public Works Agency website: http://www.ei.santa-ana.ca.us/pwa/ 20C-83 The IS/MND was sent to the State Clearinghouse (SCH) for distribution to state agencies and was assigned SCH # 2016011069. The SCH sent copies of the IS/MND to the following state agencies for review and comment: State Agencies Receiving the IS/MND for Review State Agencies Providing Comments California Coastal Commission No Department of Fish and Wildllfo, Region 5 No Department of Parks and Recreation No Department of Water Resources No Caltrans District 12 Yes Division of Aeronautics No California Highway Patrol No Air Resources Board No State Water Resources Control Board, Division of Financial Assistance No State Water Resources Control Board, Division of Drinking Water No State Water Resources Control Board, Division of Water Rights No Regional Water Quality Control Board, Region 8 Yes Native American Heritage Commission No State Lands Commission No Additionally, URS on behalf of the City of Santa Ana sent the IS/MND to the following local stakeholders for review and comment: Local Stakeholders Receiving the IS/MND for Review Local Stakeholders Providing Comments City of Newport Beach No City of Costa Mesa No Orange County Flood Control District Yes Orange County Watersheds No Orange County Sanitation District No Orange County Water District Yes Newport Bay Conservancy No Surfrider Foundation — Newport Beach Chapter No Orange County Coastkeeper No John Wayne Airport Yes All comments received on the MND are included in Attachment A. Responses to comments are provided in Section 2.0. 20C-84 0 2.0 RESPONSE TO COMMENTS 2.1 COMMENTS FROM ORANGE COUNTY PUBLIC WORKS (FLOOD PROGRAMS ENVIRONMENTAL RESOURCES, AND TRAILS) - FEBRUARY 24, 2016 2.1,1 Flood Programs 1. Comment: Request the IS/NIND consistently address the County/ OCFCD as one of project proponents along with the Cities of Santa Ana, Newport Beach and Costa Mesa, Response: Comment noted. All references to the Project Proponents should include County/OCFCD. 2. Comment: Change reference to Watershed Protection Group in Section 1.0 to Environmental Resources, Response: Comment noted. The name change is acknowledged. 3. Comment: Correct typo, reference are listed in Section 6.0, not 7.0. Response: Comment noted. 4. Comment: Please verify acreage of Santa Ana Delhi Channel (F01) catchment area. Response: OCFCD provided a new watershed drainage area map that shows a FO watershed area of 10,900 acres. This new map is provided as Attachment B of this Response to Comment document. 5. Comment: Please verify drainage boundaries of Santa Ana Delhi (F01), Santa Ana Gardens (FO2) and Paularino (F03) shown in the Figure 1 of the MND versus the Fill Proposed Diversion Structure Watersheds map provided by the OCFCD to the City of Santa Ana. Response: OCFCD provided a new watershed drainage area map showing boundaries for FO I, F02 and F03. This newer map is included as Attachment B and would supersede Figure I in the IS/MND. 6. Comment: Based on the new drainage area map provided, please verify the contributory acreages of the Cities of Santa Ana, Costa Mesa, Newport Beach, Irvine and Unincorporated Orange County. Response: Based on the new drainage area map provided by OCFCD, the contributory acreages of the Cities of Santa Ana, Costa Mesa, Newport Beach, Irvine and Unincorporated Orange County are: 6983, 3019, 128, 159 and 611 acres, respectively, 7. Comment: The proposed diversion should not worsen existing hydraulic conditions of F01. Existing and post project hydraulic analysis need to be performed to evaluate the project's impact to F01 and mitigation measures proposed in consultation with OCPW if there are any adverse impacts. Response: The project is designed in accordance with the OC Flood Design Manual to meet all requirements for maintaining the flood control capacity of the channel. Hydraulic analyses have been performed by URS in coordination with OCFCD and provided in the Hydraulic 20C-85 Study on file with OCFCD. The Hydraulic Study describes the analyses performed on the channel, diversion structure, and local storm drain inlet systems. The level of flood protection offered by FO has not been affected. No additional flood areas have been created by the proposed structure. 8. Comment: The description of Element 2 (Debris Containment System) specifies what happens to flows/debris up to 2 feet in depth and flows/debris above 3 feet in depth but under 7 feet. Provide an explanation of what happens to floating debris and flows within the range of 2-3 feet of depth. Response: At no point are flows fully retained by the diversion structure. For clarification, the following description of operational flow ranges is provided. All flows less than 20 cubic feet per second (cfs) will be redirected into the facility by the cross-charmel weir to be treated via an inclined (Coanda) screen and returned to channel through a transfer culvert within the off -channel diversion facility (HEC -RAS Bypass Culvert). Flows exceeding 20 cfs will exceed the flow capacity of the transfer culvert and begin to flood the off -channel diversion facility and pass through trash nets for floating debris treatment until a point such that sufficient downstream head has been built to overtop the cross channel weir. At this point, flows and floating debris will be skimmed by the resting reinforced boom into the off-charmel diversion facility until a channel water surface of approximately 18 inches has been reached. Once a water surface of 18 inches has been reached, the boom will begin to float up to a water surface of 6 feet 6 inches (approximately a 2 -year water quality event). The boom will slam and redirect the top portion of flows for floating debris into the off channel diversion facility up until this set release point has been reached. After a water quality event water surface has been attained, the boom will release from the downstream support while remaining fixed to the upstream support. Floating litter and debris directed into the off -channel diversion facility will be retained by the trash nets. Concurrently, the trash nets will collapse after a water quality event water surface has been attained in order to prevent damage from the 100 -year flood control event water velocities. A secondary coarse bar screen has been provided at the exit of the off -channel diversion facility to retain pollutants that have entered the off -channel diversion facility but have either bypassed the trash nets or exceeded the trash net storage capacity during a water quality event. 9. Comment: Please verify maintenance frequencies described fn different sections of tine IS/MND for consistency. Response: Long term maintenance, which includes removal of accumulated debris, sedimtnt, and floatables within the diversion facility, is expected to be on a 30 -day maintenance cycle, after each rain event, or as required. 10. Comment: Please state in the IS/MND and Operations & Maintenance Plan detailing all required maintenance activities, responsibilities, and the frequencies associated with all three project elements. All permits including those from Regulatory Agencies should be shared with the OCFCD/County before they are finalized and become part of the O&M Plan. 20C-86 Response: Operation and maintenance activities, responsibilities and frequencies of each project element are identified in the table below. The Proj ect Stakeholders named in the Memorandum of Understanding (MOU) that is currently under development will be responsible for ensuring that all stakeholders are informed of the regulatory permit process and provided an opportunity for review/comment as applicable, Project Element Operation and Maintenance Responsibility Frequency Activity Element t - Removal of accumulated debris, OCFCD Every 30 days, after each In Channel sediment, floatables from the rain event, or as required. Diversion Structure testable debris boom Also, prior to Oct. 1 and after April 30. Reset the debris boom OCFCD After each storm event that exceeds the2-year storm event water surface Element 2 — Removal of accumulated debris, OCFCD Every 30 days, after each Channel Debris sediment, floatables from rain event, or as required. Removal System - Coanda screen and debris Also, prior to Oct. 1 and containment area after April 30. Cleaning of CDS unit OCFCD Every 6 months Element 3 — Inspection of pumps and wet OCFCD Every 6 months Pumping Facilities wells Replacement of pumps OCFCD As needed (25 -year minimum expected life cycle) 11. Comment: The access road has to be moved within the golf course in a manner that does not impact operation of the golf course. Response: During project construction, the access road will be temporarily closed off, but the bridge over the channel to the Front Nine will remain open. Long-term, the project has been designed so that the re -aligned portion of the access road will be outside the golf course existing lines of play. 12. Comment: Please add test regarding the project footprint requirements of the pipeline and other features outside the County R/W as appropriate. Response: The pipeline wilt be L6 nnles long and placed in a 5 -foot wide trench in the existing paved Bristol Street right-of-way. Pipeline construction plans will be reviewed and approved by the City of Costa Mesa. 13. Comment: The existing access road is not open for public use at this time. Please revise text as appropriate. Response: It has been confirmed by Jeff Dickman of OCPW that the existing access road is part of the Santa Ana Heights Regional Riding and Hiking Trail, a county master -planned trail, and open for public use. The purpose for the trail is to connect the equestrian stable at the OC Fairgrounds to Upper Newport Bay and to two other regional routes leading to Peters 200-87 0 Canyon Regional Park, Mason Regional Park and, Irvine Coast Wilderness Park. Trail users include walkers, joggers, runners, mountain bicyclists and equestrians. 14. Comment: Suggest labeling the "Back and Front of the Ninth hole" and the pedestrian bridge on Figures 5 and 6 for anyone not familiar with golf terminology. Response: Figures 5 and 6 have been revised to include labels for these features, and are included as Attachment C of this Response to Comments document, The "Back Nine" is the Newport Beach Golf Course's official name for the South East portion of the coarse which contains the reservoir (lake). The "Front Nine" is the official name for the North West portion of the course. The two halves are separated by the Santa Ana Delhi Charnel which has a pedestrian bridge spanning the two halves of the fall course. 15. Comment: Page 2-17, first paragraph reference the public recreation trail. Please delete all references to trails in the IS/MND. Response: See Response to Comment 13. 16, Comment: As shown in Table 2.4-1 (page 2-18 of the IS/MND), please identify where the 13,380 sq. ft. permanent maintenance easement and 4,300 sq. ft. sewer easement will be located (e.g. within the streets, JWA, or County property?). Response: Basements will be within the Newport Beach Golf Course as shown in Figures 5 and 6 (Attachment C). 17. Comment: Page 3-1, under item No. 5 Project Sponsor, please clarify here and throughout the ISlMND that OCFCD is a Project Sponsor. Response: Continent noted. It is acknowledged that OCFCD is a Project Sponsor along with the Cities of Santa Ana, Newport Beach and Costa Mesa. Section 3.1 has been revised to list OCFCD as a Project Sponsor and included in Attachment D of this Response to Comments document. 18. Comment: It should be shown with analysis that the proposed in -channel diversion facility and appurtenances will not affect the existing flood protection level provided by the flood control facility. Response: See Response to Comment 0. The project will not affect the existing flood protection level provided by the flood control facility. 19. Comment: Please confirm the submerged depth of the pumps so that the IS/AIND and the project plans are consistent. Response: The pump station wet well has a bottom invert of 32 feet below grade. During normal dry weather operation, sump pumps shall be submerged between 2 and 8 feet of water depth during pump cycling. During wet weather operation, wet well water surface will be equal to channel water surface. 20. Comment: Agreements between the OCFCD/County and project partners are required in order to define the terms and conditions under with OCFCD/County will accept modifications to the channel and/or accept/share right-of-way, maintenance PKIIWOOFOO responsibilities and associated costs before construction starts and permits can be issued for work within OCF'CD/County right -of way. Response: Comment noted. Project Stakeholders are currently developing a MOU for project operation and maintenance activities. 21. Comment: Please add the Preliminary Design Report including supporting technical report(s) under "Appendices" on page ii of the IS/MND. Response: Comment noted. It is acknowledged that the Preliminary Design Report could have been included as a technical appendix to the IS/MND. However, the Preluninary Design Report has been modified as part of final design and therefore some of the design portions of the report are no longer current. 2.1.2 Environmental Resources Division 1. Comment: Reference to OCPW Watershed Protection Group in Section 1.0 should be changed to OCPW Environmental Resources Division. Response: Comment noted. 2. Comment: In Section 2.4.2, Project Operations, the storm season is defined as October 16 — April 14 and the non -storm season as April 15 through October 15. To be consistent with the maintenance schedule under the County's local municipal storm water permit and related municipal/industrial and construction site inspections and maintenance that are to be conducted during the storm and non -storm seasons, the timeframes should be defined as October 1 to April 30 and May 1 to September 30 respectively. Response: Comment noted. The Project's operation and maintenance schedule will be redefined in accordance with the County's local municipal storm water permit program's definitions for the storm and non -storm season. This will be October 1 to April 30 for flee storm season and May 1 to September 30 for the non -storm season. 2.1.3 Comments from OCPCD/SAR/Trails Comment: Over 15 years ago, the County of Orange built a portion of the Santa Ana Heights Regional Riding and Hiking Trail, a county master planned dirt trail. The trail is currently open along the east side of the channel from Irvine Avenue upstream to Santa Ana Avenue. The trail is open from sunrise to sunset for use by walkers, joggers, runners, bicycle riders and equestrians. • The proposed project must not interfere with the public's use of this trail or alter the existing decompose granite trail tread, which is the hallmark of the County/s natural —surface trails • Any alteration, detour, temporary closure or reconstruction of the Santa Ana Height Regional Riding and Hiking Trail must be approved in writing by the County prior to the start of work. • Applicant will be responsible for any repairs to the decomposed trail tread, signage, bollards, gates and other trail -related amenities. 20C-89 0 Response: Comment noted. The project will require temporary closure of the trail during construction of the channel diversion faeilitics for approximately 120 days. After constriction, the trail will be restored to existing conditions using decomposed granite. The City of Santa Ana will seek approval of the trail reconstruction plans from OCPW prior to the start of work. 2.2 COMMENTS FROM SANTA ANA REGIONAL WATER QUALITY CONTROL BOARD— FEBRUARY 25, 2016 Comment: The Project design should consider the impacts of removing all low flows at the diversion structure to downstream aquatic ecosystems, including a freshwater emergent wetland that exists in the section of the Santa Ana -Delhi Channel downstream of the Mesa Street Bridge. In this location, freshwater pools form above the tidal influence that wildlife utilizes. Species observed in this location include western pond turtle and California least tern, a California species of special concern and federally - listed endangered species, respectively. As such, Project proponents should determine avoidance, minimization or mitigation resulting from Project impacts to the listed and other freshwater marsh species established in the areas downstream of the project site. United States Fish and Wildlife Service staff expressed concern over the reduction of channel flows into Upper Newport Bay that would result from the project and possible impact to the salt -water marsh located downstream of the channel confluence with the Bay. The Project proponents should respond to the USFWS concern prior to implementing the Project and consider Project options to avoid potential adverse impacts to the downstream salt marsh. Response: Portions of Final Design for the Project were based off` of recommendations made by the Santa Ana Regional Water Quality Control Board in the Santa Ana Delhi Channel Watershed Water Quality Summary (Shibberr, 2009). This summary recommended that the channel low -flow notch be blocked during the dry season (See'rable 16 of Section 5.0). Final Design of the project included blocking the trapezoidal low -flow "notch" during all weather events via a crass -charnel weir. Up to 20 cubic feet per second (efs) of flows blocked by the proposed diversion structure will be screened via an inclined screen (Coanda) type BMP to remove trash and debris. Up to 3 cfs may be pumped from a Transfer (Bypass) Culvert to be discharged into the regional sewer collection system; all flows exceeding this capacity will be returned to channel. The Bypass Calvert is designed such that up to 20 cfs of annual flows will be returned to channel after receiving screening treatment to remove trash and other debris. Also, flows in the channel downstream of the Project (e,g, below the Mesa Street Bridge) will not be affected by the Project and will continue to flow in this downstream charnel reach. These flows enter the channel from local storm drain inlets that include at least (1) 36", (2) 42", and (3) 18" storm drain system .inlets and contribute to channel flows downstream of the Proj ect. To address USFWS' concern regarding reduction of channel flows into Upper Newport Bay, operation of the Project pumps to divert flows to the regional sewer collection system 20C-90 (Element 3) could be modified, including puunping for a shorter duration, or if necessary shutting down the pumps at certain tines to provide low flows that the USFWS and the SARWQCB find agreeable for discharge into the Upper Newport Bay, 2. Comment: Project implementation could result in increased erosion in the earthen downstream sections of the channel. The project would reprove sediment from dry weather flows along the earthen section of the channel from Mesa Street to Upper Newport. Bay. The lack of sediment deposition could encourage greater scouring during wet weather flows. Board recommends conducting a hydraulic study of the channel examining sediment transport prior to determining whether to construct the project. Response: OCFCD is currently aware of erosion issues along the earthen section of the channel from Mesa Street to Upper Newport Bay and is currently developing a channel restoration project to address these issues. Erosion issues result from upstream portions of the channel that are fully hardened in a fully urbanized watershed with comparatively minor sediment loading from the Delhi, Watershed to Newport Bay Watershed (Shibberu, 2009). It is estimated that of the 74.7 tons of combined material removed annually from Santa Ana Delhi sub -watershed based on period 2012-2014 (OCFCD), 33.3% consisted of sediment which amounts to 24.6 tons of sediment. It is possible that 24.6 tons of sediment may be fully retained by the proposed diversion structure and removed by maintenance operations, This retained 24.6 tons of sediment constitutes 0.04% of the overall TNIDL limit of 62,500 ton per annum for the Newport Bay Watershed (Shibberu, 2009) and would not require a hydraulic study of the channel examining sediment transport. During wet weather, water is not capable of pooling several feet deep behind the diversion structure before it is released downstream. Flows less than 20 cfs will be diverted through an off -channel diversion facility for screening treatment and returned to channel via a Bypass Culvert. Flows exceeding 20 cfs, but less than that of a 2 -year water surface will pass through both the off -channel diversion facility trash nets, and main. channel. Only the top 18 inches of flows are to be slimmed for floating litter and debris by a floating boom that rises to match the 2 -year water surface, The boom will partially release after a 2 -year water surface has been reached to maintain the 100 -year flood control capacity of the channel provided by both the off -channel diversion facility and the main channel at fie proposed proj act site, At no point are flows fully contained by the facility, only 3 cfs of dry -weather flows may be pumped from the Bypass Culvert if not returned to channel. 2.3 COMMENTS FROM ORANGE COUNTY WATER DISTRICT (OCWD) — FEBRUARY 25, 2416 1. Comment: OCNXD operates a non -potable recycled water supply system called the Green Acres Project that delivers recycled water to irrigation and industrial users. A portion of the Green Acres Project pipeline is located in the vicinity of the proposed Santa Ana Delhi Channel Diversion Project area. OCWD requests that the applicant consider potential impacts to this pipeline as the project is designed and constructed. Response: Comment noted. Project design plans include provisions for maintaining clearance of the Green Acres Project pipeline. 20C-91 2.4 COMMENTS FROM JOHN WAYNE AIRPORT (JWA) - FEBRUARY 25, 2016 1. Comment: Domes border the golf course that could be impacted by excessive odors as well as people who play golf along the channel. The MND should include a clear description of how odor issue will be mitigated or eliminated. Response: IS/MND Section 4.3.1.e (page 4-15) addresses potential odor impacts of the project. The section states that the screening of trash may result in the build-up of trash which may be a source of odors. Removal of accumulated trash within the channel is expected to be on a 30 -day maintenance cycle, after each rain event, or as required. If collected trash presents a source of odors, the atypical source of trash would be removed or the frequency of cleaning would be increased to eliminate the source of odors. 2. Comment: JWA appreciates that project maintenance language provided in the MND allows for more frequent clean-out of the diversion facility as needed. Response: Continent noted. 3. Comment: JWA requests that the MND discuss whether any trees will be impacted by the project and recommends that the trees be saved if possible, or that other trees be replanted. Response: Existing non-native trees along the fence line of the golf course will be removed to accommodate the relocated access road. Replacement of trees, if desired, can be addressed in the MOU being prepared by the Project Stakeholders. 4. Comment: In several MND sections, there is reference to "County of Orange Airport Land Use Commission." This should be changed to "County of Orange/John Wayne Airport", since County of Orange/John Wayne is the property owner with authority to grant easements for the project, not the Commission, Response: Comment noted. 2.5 COMMENTS FROM DEPARTMENT OF TRANSPORTATION (CAILTRANS)—FEBRUARY 23, 2016 1. Comment: Caltrans requests that the applicant submit Environmental Review Documents to the Local Development/Intergovernmental Review Branch prior to request for permit. Response: On January 26, 2016, URS submitted a hard copy of the IS/MND to Caltrans District 12 in advance of the Encroachment Permit application. Staff in Caltrans District 12 Environmental Unit received this copy of the IS/MND as well as relevant portions of the Project plans for review (e-mail exchange with Ed Dolan, Caltrans Environmental Unit, 02/20/16). Also, the SCH sent the IS/MND to Caltrans District 12 for environmental review as part of the IS/MND 30 -day circulation period. 2. Comment: The City of Santa Ana must obtain a fee exempt Encroachment Permit prior to commencement of work within the State Right of Way. Also, the City's contractor will also have to apply for a Double Permit to perform the work. 20C-92 0 Response: Comment noted. The City of Santa Ana is in the process of applying for an Encroachment Permit and is aware of the Encroaclvnent Perrnit procedures outlined in the Caltrans comment letter. 20C-93 Attachment A Comment Letters on the IS/MIND 20C-94 ubb cWorks Integrity, Accountability, Service, Trust Shane L. Sileby, Director February 24, 2016 Mr. Tyrone Chesanek, Principal Civil Engineer City of Santa Ana, Public Works Agency 20 Civic Center Plaza Santa Ana, California 92701 NCL -16.011 Subject: Notice of Intent to Adopt a Mitigated Negative Declaration for the Santa Ana Delhi Channel Diversion Project Dear Mr. Chesanek: The County of Orange has reviewed the Notice of Intent to Adopt a Mitigated Negative Declaration for the Santa Ana Delhi Channel Diversion Project and offers the following comments: Flo_o_d Proerams: 1. page 1-5, Section 1.0, 1n paragraph of the IS/MND states that '"The City of Santa Ana in association with the Cities of Newport beach and Costa Mesa is proposing a low flow diversion project.," Please add County/OCFCD as one of the project proponents to be consistent with the rest of the document. 2. Page 1-5, Section 1.0, 3"l paragraph: Please change "Watershed Protection Group" to "Environmental Resources". 3. Page 1-6, Section 1,2, last sentence: Please correct typo — references are listed in Section 6.0 (not 7.0). 4. Page 2-1, Section 2.2, a and 2r"l paragraphs indicate that the total tributary area to Santa Ana Delhi Channel (F01) is 10,158 acres. Our records show F01 has a catchment area of about 11,000 acres. Please verify and revise as appropriate. 5. Page 2-5, Figure 1: It is noted that the watershed boundaries of Santa Ana Delhi (F01), Santa Ana Gardens (F02), and Paularino (F03) Channels have some discrepancies compared to the drainage map (i.e., F01 Proposed Diversion Structure Watersheds rev.pdf) provided to the City of Santa Ana (City). Please verify drainage boundaries and revise as appropriate. 300 N. Flower Street, Santa Ana, CA 92703 P.O. Box 4048, Santa Ana, CA 92702-4048 20C-95 www.00pubilcmrks.com 714.667.8900 1 I nfoCCCPMocgamom 6, The drainage map referred to in comment item 5 above also includes contributory drainage acreages from the Cities of Santa Ana, costa Mesa, Newport Beach, Irvine, and Unincorporated Orange County. These acreages differ from those reported on page 2-1, Section 2.2, 2nd paragraph of the IS/MND. Please verify and revise as appropriate. 7. Page 2-7, Section 2.4,1 indicates that the proposed project includes an in -channel diversion structure that will utilize a semi-rigid floatable boon and a one foot high broad crested weir that spans the entire channel, The proposed diversion facility should not worsen existing hydraulic conditions of F01. Existing and post project hydraulic analyses need to be performed to evaluate the proposed project's impact to F01 and mitigation measures proposed in consultations with OC Public Works/Infrastructure Programs/Flood Program Support (FPS), if there are any adverse impacts, 8. Page 2-8, Element 2, 26d paragraph states, "Primary containment will be the storage location of debris and trash collected by the system for channel dry weather flows and flows up to 2 feet of depth" and "Floating debris carried by storm evets greater than 3 feet of depth but under 7 feet of depth will be redirected into the facility by Element 1 and retained by secondary containment chamber." It is unclear what happens to floating debris and flows within the range of 2-3 feet of depth. Please review and add explanation as appropriate. 9. Page 2-9, Element 2, 3`d paragraph states, "At minimum debris captured will be removed from debris storage area every 90 days. For optimum performance debris captured will be removed prior to beginning of each storm season and at conclusion of storm season." Please see also page 2-10: Storm Season Operations and Estimated Trash Removal Operation; page 2-19; Long Term Maintenance Operations; and page 4-3, 2"d paragraph. Please verify maintenance frequencies described in different sections of the IS/MND to ensure consistency. 10, Please state in the iS/MND that an Operations & Maintenance Plan detalling all required maintenance activities, responsibilities, and the frequencies associated with all three project elements: in -channel diversion structure, channel debris removal system, pumping facilities will be prepared. All permits including those from Regulatory Agencies should be shared with OCFCD/County before they are finalized and become part of the O&M Plan. 11. Page 2.10, General Maintenance Operations, the IS/MND states, "However in special circumstances, such as pump removal for replacement, temporary access may be required." The access road has to be moved within the golf course In a manner that does not impact operation of the golf course, 12. Page 2.10, Section 2.4.3, Project Footprint Requirements: This paragraph seems to address the diversion footprint of the project only, It does not discuss the project related to the pipeline and other features outside of County R/W. Please review and add text as appropriate. 13. Page 2-10, Section 2.4.3 states, "The existing access road, currently open for public recreational purposes, will need to be re-established as part of the development of the project." The existing access road is not open for public use at this time. Please revise the text as appropriate. $00 N. Flower Street, Santa Ana, CA 92703 P.Q. Box 4048, Santa Ana, CA 92702-4048 20C-96 www,00publi eworks.com 714.667.8800 t Info@0CPW,009ov.com 14. Page 2-11, 1st paragraph: There is a reference to "Back and Front of the Ninth hole" and the pedestrian bridge. These features should be labeled on Figures 5 and 6, if being reference within the text of the IS/MND since reference Is "golf terminology" that everyone may not be familiar with. 15. Page 2-17, V' paragraph states, 'The access ramp to the proposed facility will be gated separately from access road for use by DCFCD for general maintenance and public recreation trail." Please see page 2-8, last paragraph regarding trail Issue. There is no existing public trail within the project site. please delete all references to trails from the i5/MND. 16. Page 2-18, Table 2.4-1: "Permanent Maintenance Easement Needed (Square Feet) 13,380" and "Sewer Easement Needed (Square Feet) 4,300" Please identify where these easements are. Are they within streets, John Wayne Airport or County property? 17. Page 3-1, Section 3.1, Item No. 5 Project Sponsor's Name and Address: This Item omits DCFCD as a sponsor, Definition of Sporsor needs to be clarified and the documents revised as appropriate. 18. Page 4-38, Section 4.9.1, item c, "Elements of the diversion facilities will be constructed within the concrete -lined Santa Ana Delhi Channel and will not affect the flood control capacity, drainage pattern of the area or alter the course of the channel." Please see also page 4-38, item d and page -39, item h. It should be shown with analysis that the proposed in -channel diversion facility and appurtenances will not affect the existing flood protection level provided by the flood control facility. Please see comment no. 7 above also. 19. Page 4-48, Section 4.12.1,a states, 'These pumps will be completely submerged to a depth of 35 feet below grade." The plans show 32' below grade. Please verify and revise as appropriate. 20, Agreements between the DCFCD/County and project partners are required in order to define the terms and conditions under which DCFCD/County will accept modifications to the channel and/or accept/share right-of-way, maintenance responsibilities and associated costs before construction starts and permits can be issued for work within DCFCD/County right-of-way. 21. Please add the Preliminary Design Report including supporting technical report(s) under "Appendices" on page Il of the IS/MND. if you have any questions or need clarification please do not hesitate to contact Mehdl Sobhani at (714) 667-3998 or Penny Lew at (714) 647-3990. Environmental Resources: 1. Section 1.0, introduction (page 1-5): The reference to OC Public Works Watershed Protection Group in the third paragraph should be changed to OC Public Works Environmental Resources Division. ...... 300 N. Flower 3treat, Santa Ana, CA 92703 www.ogauWloworka.com P.O. Box 404x, Santa Ana, CA 02702-4048 20C-97 714,667.680Q 1 Info@OCPw.00gcv,conn 2. Section 2.4.2, Project Operations (pages 2-9 to 2.10): This section breaks down project operations during the non -storm season and storm season. The document defines the storm season as October 16 to April 14 and the non -storm season as April 15 through October 15. In order to be consistent with local municipal stormwater permits and related municipal/industrial/construction site inspections and maintenance that are to be conducted during the storm or non -storm seasons, the timeframes should be defined as October 1 to April 30 and May 1 to September 30, respectively. Plood/SAR/Traiis: 1. Over 15 years ago, the County of Orange built a portion of its Santa Ana Heights Regionol Riding and Hiking Trail, a county master -planned dirt trail. The trail is currently open along the east side of the channel from Irvine Avenue upstream to Santa Ana Avenue. The trail Is open from sunrise to sunset for use by walkers, joggers, runners, mountain bicycle riders and equestrians. The trail is planned to connect the Orange County Fairgrounds to Upper Newport Bay Nature Preserve, the Peters Canyon — Irvine Coast Regional Riding and Hiking Trails and the Mesa Drive Trail. • The proposed project must not interfere with the public's use of this trail or alter the existing decomposed granite trail tread, which is a hallmark of County's natural -surface trails. • Any alteration, detour, temporary closure or reconstruction of the Santa Ana Heights Regional Riding and Hiking Trail must be approved in writing by the County prior to the start of work. Applicant will be responsible for any repairs to the decomposed trail tread, signage, bollards, gates and other trail -related amenities. If you have any questions or need clarification please do not hesitate to contact Jeff Dickman at (714)647-3937. Sincerely, Laree to so, Manager, Planning bivision OC Pu l Works Service Area/OC Development Services 300 North Flower Street Santa Ana, California 92702-4048 Laree,aionsoCocpw.oa ognv.corn cc: Mehdf Sobhanl, Manager, OC Public Works/Flood Programs Chris Crompton, Manager, OC Public Works/Environmental Resources Jeff Dickman, OC Engineering, OC Public Works/Flood/SAR/Trails 300 N. Flower Street, Senna Ana, CA 92703 P.C. Box 4048, Santa Ana, CA 92702-4048 20C-98 www,acpu bllcwDrks. com 714,667.6800 1 Info@CCPW.oagov.com YAtrYM1PM,A 0 Water Boards Santa Ana Regional Water Quality Control Board February 25, 2016 Mr. Tyrone Chesanek, City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 PE, Principal Engineer / ems �� Bn,nua>C SPrwN .b,. Mnrn�,w .......... ill f.i�n�i Review of California Environmental Quality Act Mitigated Negative Declaration: Ana -Delhi Channel Diversion Project Dear Mr. Chesanek: Thank you for the opportunity to comment on the mitigated negative declaration (MND) for the proposed Santa Ana Delhi Diversion Project (Project). The stated purpose o the Project is to eliminate dry weather flow and floating debris in the Santa Ana -Delhi Channel to help improve water quality in Upper Newport Bay, The City proposes to construct in an unincorporated area of Grange County a dry weather diversion stru ture within the Santa Ana Delhi Channel adjacent the Newport Beach Golf Course. Whe operating, the Project will remove dry weather flows, trash, debris, and low flows du ing the wet season up to 3.0 cubic feet per second, In addition, the Project proposes th construction of a 1.6 miles long pipeline to carry the diverted flows to an Grange Cc nth Sanitation District regional collection system located on Baker Street in the City of ost Mesa. The MND states that the City of Santa Ana, in association with the Cities of Newpo Beach and Costa Mesa, has proposed the diversion project to address surface wai quality issues. The Cities propose to address water quality issues in accordance v the Orange County Municipal Separate Storm Sewer System permit as well as the several total maximum daily loads (TMDLs) developed for Upper Newport Bay. A primary intent of the Project is to address the Current selenium TMDL while also addressing TMDLs for bacteria, toxics, metals, and nutrients, and the recently apps statewide trash amendment. Regional Board staff appreciates that this Project appears likely to improve water in Upper and Lower Newport Bay by reducing the loading of pollutants to the Bay. requests consideration of the following comments on the MND when designing, constructing, and implementing this Project. 1. The Project design should consider the impacts of removing all low flows at he diversion structure to downstream aquatic ecosystems. As described in the 993 draft Environmental Impact Report (EIR) #527 "Santa Ana -Delhi System", a d �20,C; 99 Santa Ana Delhi Diversion Project -2. February 25, 2018 easily observed when on-site, a freshwater emergent wetland exists in the section of the Santa Ana -Delhi Channel (channel) downstream of the Mesa Street Bridge and the proposed Project site. In this location, fresh water pools form above the tidal influence that wildlife utilizes. California Department of Fish and Wildlife species of special concern and Federal Endangered Species Act listed species have been reported utilizing the freshwater marsh. The United States Geologic Survey biological survey team and others have periodically identified western pond turtle (Actinemys marmorata pallida), a California Department of Fish and Wildlife species of special concern, in this section of the channel. The California least tern (Stemula antillarum brown), federally listed as endangered, feeds in the freshwater sections of the channel as reported in the 1993 EIR and by local wildlife experts. As such, the Project proponents should determine avoidance, minimization or mitigation resulting from Project impacts to the listed and other freshwater marsh species established in the areas downstream of the Project site. In addition, United States Fish and Wildlife Service (USFWS) staff expressed concerns over the reduction of channel flows into Upper Newport Bay that would result from the implementation of this Project, and possible impacts to the salt- water marsh located downstream of the channel confluence with the Bay. Recently, USFWS staff provided Regional Board staff with a documene that describes the benefits of adequate nutrients to a healthy salt -water marsh. The Project proponents should respond to USFWS' concern prior to implementing the Project, and consider Project options to avoid potential adverse impacts to the downstream salt marsh. 2. The implementation of the Project could result in increased erosion in the earthen downstream sections of the channel. Implementation of the Project would remove sediment from dry weather flows along the earthen section of the channel from Mesa Street to the Bay. The lack of sediment deposition could encourage greater scouring during wet weather flows, but the MND does not discuss this possibility. Board staff recommends conducting a hydraulic study of the channel examining sediment transport prior to determining whether to construct the Project. The MND states that during wet weather, water may be allowed to pool several feet deep behind the diversion structure before it is released downstream, The Project proponents should consider the effects of these wet weather releases to the downstream sections of channel and the habitat. In addition, the Project proponents should evaluate whether allowing routine smaller releases versus Personal communication with USFWS staff Chris Medak. Z Zedler,1993, "Canopy Architecture of Natural and Planted Cord grass Marshes: Selecting Habitat Evaluation Criteria", 20C-100 Santa Ana Delhi Diversion Project .3- February 25, 2095 sudden releases of these flows from the diversion structure would reduce the possibility of adverse impacts. The MND stated that a Clean Water Act Section 401 Water Quality. Standards Certification (401 Certification) would likely be issued by the Regional Board for this Project. The United States Army Corps of Engineers has consistently considered the Santa, Ana Delhi Channel Waters of the United States, which will require the Project applicant to request and obtain a 401 certification prior to constructing this Project. The Project proponents must consider appropriate measures and Best Management Practices (BMPs) to incorporate into the Project to meet water quality standards. These measures and BMPs should be included in the 401 Certification applications, If you have any questions, please contact Dave Woelfel at David.woelfele.waterboards.ca,cov or (951) 782-7960. Sincerely, W"6-- M Wanda M, Grass Senior Environmental Scientist Regional Planning Section cc; United States Fish and Wildlife Service — Chris Medak California Department of Fish and Wildlife — Kevin Huft City of Newport Beach — Bob Stein 20C-101 o,neaon= PHILIP L. ANTHONY DENIS R. NILODEAU, P.E. JORDAN DRANOMAN SHAWN DEWANE !AN M. FLORY CATHY GREEN DINA NRUYEN ROMAN A. REYNA STEPHEN R.SHELDON ORANGE COUNT" WATER DISTRICTROGER C. YOH, PE, ;11:ri1r11 w�:,.rn ,.0,1 .... ..... February 25, 2015 Tyrone Chesanek, PE Principal Civil Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza Santa Ana, CA 92709 oi"'IL , President CATHY GREEN First V14e President DENIS R, OILODEAUL, P.E. Second Vice President PHILIP L. ANTHONY Reneral Manager MICHAEL R. MARKUS. P.E., D.WRE RE: Mitigated Negative Declaration for Santa Ana Delhi Channel Diversion Project Dear Mr. Chesanek: The Orange County Water District (OCWD) was established by the State of California in 1933 to manage the Orange County groundwater Basin. Water produced from the basin is the primary water supply for approximately 2:4 million residents in Orange County. OCWD operates a non -potable recycled water supply system, called the green Acres Project. A dedicated set of pipelines delivers recycled water to irrigation and industrial users: A portion of the Green Acres Project pipeline is located in the vicinity of the proposed Santa Ana Delhi Channel Diversion Project area. Please see the attached map indicating the location of the pipeline. We request that you consider potential impacts to this pipeline as you design and build the proposed project. If you have any questions regarding the Green Acres Project pipeline, please contact Ben Smith of OCWD at 714-378-3211. Thank you for the opportunity to submit these comments. Sincerely, " MYchael R. Markus, P.E., D.WRE, BCEE, F.ASCE General Manager Attachment February 25, 2015 10�N VYN. Tyrone Chosanck AI.MRT City of Santa Ana Public Works Agency O RANOS COUNTY 20 Civic Center Plaza Santa Ana, CA 92702 Garry A. ttondinella, A,A,G,/C.A.G, Subject: NOI to adopt MND for Santa Ana Delhi Channel Diversion Project Airiaart Director Dear Mr. Chesanek: Thank you for the opportunity to review the initial study for the Santa Ana Delhi Channel Diversion Project located in the Santa Ana Delhi-Channel and the adjacent Newport Beach Golf Course. John Wayne Airport (MA) requests that the following comments be addressed: 1, The initial study does not discuss the potential for odor associated with the project. There are homes that border the golf course that could be impacted by excessive odors, as well as people who play golf along the channel. The Mitigated Negative Declaration (MND) should include a clear description of how odor issues will be mitigated or eliminated. 2. The MND does include a long term maintenance schedule. Removal of accumulated debris, sediment, and floatables within the diversion facility is expected to be an a 30-day maintenance cycle, alter each rain event, or as required. We appreciate that the maintenanoe language does allow For more frequent cleanout if needed. 3. Figure 5 of the HIND shows that the project footprint is overlaying a number of trees, We request that the MND discuss whether any trees will be impacted by the proposed project, The MND states there will be no agricultural impacts and landscaping details will be determined during final design, If any trees need to be removed, we recommend that the trees be saved if possible, or that other trees be replanted. 4. The underlined language in the sections noted below should be changed from "County of Orange Airport Land Use Commission" to "County of Change/John Wayne Airport" The Airport Land Use Commission is not a property owner and has no authority related to this project. Page 2-11 (Section 2A.4) Easements: "As a part of the overall Project, the proposed Facility will require a permanent easement for operations. Use of the permanent easement will vary based on location and function of the proposed facility elements. Preliminary boundaries can be seen in Figures 5 and b. These easements will be on Newport Beach Golf Course and would be granted by the Countof Qrange Airport Land Uso Cormnission which owns the sten Afiway Avenue golf course property. �, Custa Mesa, CFA 92626 -hens Page 2-19 (Section 2.7) Project Approvals: 919.252,5171 "The City, as Lead Agency for the project, has discretionary authority over the 919,252.5170 fax project. To implement this project, the following discretionary permits/approvals are www.00alGGoot [4 'two ,. 20C-104 Page 2 JWA Corrunents Santa Ana Delhd Channel Diversion 2,25,16 required at a minimum: • Certification of the CEQA document by the City of Santa Ana ■ Clean Water Act Section 404 Permit from the U.S. Army Corps of Engineers • Clean Water Act Section 401 Water Quality Certification from the Santa Ana Regional Water Quality Control Board • California Fish and Game Code Section 1602 Streambed Alteration. Agreement from the California Depar =m of Fish and Wildlife • NPDES General Construction Activities Stonn Water Permit — Notice of Intent (NOD form for construction activities that disturb one acre or more of soil. • Dry Weather Urban Discharge Permit from the Orange County Sanitation District • Encroachment Permit from County of Orange Flood Control District • Easomo imam Courrt,�of Orange la,�q�,,gr� Use Cosnrnissian Page 3-2 (Section 3.1): 10. Other public agencies whose approval is required (e,g,, peruaits): U,S. Army Corps of Engineers - Section 404 Permit • Santa Ana Regional Water Quality Control Hoard - Section 401 Water Quality Certification • State Water .Resources Control Board - Notice of Intent (NOI) for NPD.ES General Permit for Storm Water Discharges Associated with Construction Activities • Calif. Dept. of Fish and Wildlife . Section 1602 - Streambed Alteration Agreement • Orange County Sanitation District .- Dry Weather Urban Discharge Permit • County of Orange Flood Control District - Encroachment Permit • County of Oranr e i ort [and IJse Commisgipn,.- Easements ,"hank you for the opportunity to comment on the MND. Please contact Lee Chourn, Land Use Manager at (949) 252-5123 or via email at lchoum d)ocair.com should any questions arise regarding these comments. Sincerely, L. G, Serafini Deputy Airport Director, Facilities 20C-105 `j'j'A3XJA_0AUUQjNIA_fAJ.11'�f.�.tr\9TA1'G DEPARTMENT OF TRANSPORTATION DISTRICT 12 3347 MICHB SON DRIVE., Stll'1'8 10 IRVINE„ CA 92612-8894 Serloas Droaght. PHONE (949)724-2086 5'erlons• drought. IMAX (9,19) 724-2592 help save. water! Try 711 W W W.tlot.ca.gov February 23, 2016 Mr. Tyrone Cllesanke PE File: IGR/CEQA City of Santa Ana SC.H#: 2016011069 Planning Division Log #: 4621 20 Civic Center Plaza SR -73, SR -55,1405 Santa Ana, CA. 92701 Dear Mr. Chesanke: Thank you for the opportunity to review and comment on the Santa Ana Delhi Channel Diversion Project Mitigated Negative Declaration. The City of Santa Ana in association with the Cities of Newport Beach and Costa Mesa is proposing a low flow diversion project in the Santa Ana -Delhi Channel that is intended to capture and divert low -flow urban discharges into the sanitary sewer system to address surface water duality issues in accordance with the Orange County Municipal Separate Storm. Sewer System (MS4) permit (Order No. R8-2009.00:50, Amended by Order No. R8.2010.0062) as well as the Total Maximum Daily Load (TM'DL) for selenium discharge to the Upper Newport Bay. The proposed Santa Ana Delhi Diversion Project (Project) will remove dry weather flows and lows flows during the wet season from the Santa Ana Delhi Channel and divert the flows to the Orange County Sanitation' District (OCSD) sewer collection system for treatment prior to discharge into the ocean or utilization as source water for the OCSD/Orange County Water District (OCWD) regional Ground Water Replenishment System. The proposed Project consists of three major components: 1) dry -weather diversion component; 2) floatable debris removal system; and 3) pumping facilities, force main, and pipeline connection to the OCSD sewer system, Caltrans Local Development -Intergovernmental Review program reviews impacts of local development to the transportation system, including the State Highway System. The Department works to ensure that local land use planning and development decisions include the provision of transportation choices, including transit, intercity rail passenger service, air service, walking and biking, when appropriate. The Department advocates community design (c.g, urban infill, mixed "Provide a sale, suslainahle, f nnnspa7aRan sys•!Wn to enhance `20C-106 r,"abdiry Mr. Tyrone Chesanke PE February 23, 2016 Page 2 use, transit oriented development) that promotes an efficient transportation system and healthy communities. The Department of Transportation (Department) is a responsible agency on this project and has the following comments for your consideration. Local Development intergovernmental Review: Please submit Environmental Review Documents to Local Development/Intergovernmental Review Branch prior to request for permit. Permits: 1. As indicated on the Initial Study/ Mitigated Negative Declaration that The City of Santa Ana in association with the Cities of Newport Beach and. Costa Mesa is proposing a low flow diversion project in the Santa Ana -Delhi Channel that is intended to capture and divert low flow urban discharges into the sanitary sewer system at SR -73 and Irvine Avenue/Bristol Street in Orange County, California. 2, The City of Santa Ana must obtain a fee exempt Encroachment Permit prior to commencement of work within the State Right of Way. City of Santa Ana's contractor will also have to apply for the Double Permit to perform the work. If City's contractor has not been exempt from permit fees in the Cooperative Agreement, a deposit of $41.00 will be needed at the time of Double Permit Application submittal. 3. If the cost of work within the State R/W is below'one Million Dollars the Encroachment Permit process will be handled by Caltrans Permits Branch, otherwise the permit should be authorized through Caltrans Project Development. 4. Allow 2 to 4 weeks for a complete submittal to be reviewed and for a permit to be issued. When applying for Encroachment: Permit, please incorporate Environmental Documentation, SWPPP, Hydraulic Calculations and Reports, Traffic Control Plans (If lane closure required), Geotechnical Analysis, Materials specifications, and all relevant design details including design exception approvals. 5. For specific details on Caltrans Encroachment Permits procedure, please refer to Caltrans Encroachment Permits Manual. The latest edition of the Manual is available on the web site; htt www,j LgLggyhd/�iarfrcrt7s1develo se y( e mics, "Provideasgfe., sustatnahle .M-1,..,1 trmnspontalm .System Eo enifelme Gk ilh,a 041," 20C-107 Mr.'t'yrone Chesanke PE February 23, 2016 Page 3 Please continue to keep us informed of this project and any future developments that could potentially impact State transportation facilities. If you have any questions or need to contact us, please do not hesitate to calf Aileen Kennedy at (949) 724-2239. Sincerely, e 4161/ — MAUREEN EL HARAKE Branch Chief, Regional -Community -Transit Planning District 12 c: Phi Dinh, Hydraulics Farid Nowshiravan, Permits Grace Pina Garrett, NPDES Scott Morgan, Office of Planning and Research "Provide a safe, SusmLrable. inmgratett and e}f'icieru rrnusport«rlon system to enhance ( rd livability" 20C-108 vf+ Attachment B Updated Watershed Drainage Map 20C-109 Orvaled ulvermol 9lmRT.T3teMhGRJyuns Market �anla ladle f uuNlll -. - i F03 F03 FACHOV NLL R FACNttNAME 1LIRISWCT0N ACRES ml SANTAANA-O IO NNEL COSTA MESA t,M Fel SANTAANA-KLHICIiANNEL NEWPORTIIEACN L2a FM SANTA ANA-NWI CHANNEL SANTAANA 4,366 Pot SANTAANA-OELSR CHANNEL VN.rw.ted 3W NMI NVCHITSIORMCHANNEL COSTAMESA 3TT mmi AIRPORTSTORMCIUNNEL IRVINE 159 NRPORTSTORMC NNEL SANTAANA TR NRPORTSMRMOWNNEL U inmreorated vt ft SANTAANAOARUENSCHANNE COSTAMESA 96 SANTAANA"R SC NN SANTAANA ;639 PALLANNOCHANNEL COSTp MEU ],ffi6 N O LL F02 0 'S' F01 s F01S01 PROPOSED DIVERSION STRUCTURE �f111 V . m Q Watershed Drainage Areas SANTAANA COSTA MESA IRVINE NEWPORT BEACH Unincorporated WTAL A" 2OC-11 m Q Watershed Drainage Areas SANTAANA COSTA MESA IRVINE NEWPORT BEACH Unincorporated Attachment C Revised Figures 5 and 6 with Labels for Golf Course and Pedestrian Bridge 20C-111 ACCESS TO IRVINE, AVE. THROUGH PRIVATE ROAD _(FOR WEST BANK WORK) i 55+00.00 E 56+00.00 _57+Q0.06 9 I� CONMDL PMEL a � LEGEND EXISTING RIGHT OF WAY -- -- -- PROPOSED MAINTENANCE EASEMENT — PROPOSED TEMPORARY CONSTRUCTION EASEMENT LINE OF PLAY PROPOSED ACCESS ROAD QUANTITIES NEW OCFCD MAINTENANCE EASEMENT: 13,380 SOFT (0.31 ACI +20 FT OFFSET EAST FROM EXISTING RMI: STATIONS 56+50.00 TO 60+70.00 (420 FT XROAD) +50 FT OFFSET EAST FROM EXISTING RW. STATIONS 56+50.00 TO 58-16.00 (166 FT) (PUMP STATION) TEMPORARY CONSTRUCTION EASEMENT: 15,485 SOFT (0.37 AQ (MINUS MAINTENANCE EASMENT) j�-a +25 FT OFFSET WEST FROM EXISTING RM STATIONS 56+00.00 TO 58+75.00 (275 FT) (WEST CHANNEL WALL WORK) i&Mx x X +75 FT OFFSET EAST FROM EXISTING RN; STATIONS 56+85.00 TO 58+75.00 (275 FT) (PUMP STATION & CHANNEL WALL) + MISC CORNER FOR EX, OC -112 0 0 0 z 0 U S J lyL z Z C? (D ❑ eZe� L LC O U Z LEGEND — — — EXISTING RIGHT OF WAY — — sw — - -- PROPOSED 14" FORCE MAIN ^� @^• •� P� PROPOSED SEWER EASEMENT —5— --- EXISTING 6' SEWER PIPE QUANTITIES NEW SEWER EASEMENT: 4,300 SQFT (0.10 AC) +20 FT OFFSET EAST FROM NORTH-EAST PROPERTY LINE Attachment D Revised Page 3.1 showing OCFCD as Project Sponsor 20C-114 Santa Ana Delhi Channel Diversion Project Initial Study/Mitigated Negative Declaration 3.0 Initial Study Checklist 3.1 Background 1. Project Title: Santa Ana Delhi Channel Diversion Project 2. Lead Agency Name and Address: City of Santa Ana Department of Public Works 20 West Civic Center Plaza Santa Ana, CA 92701 3, Contact Persons and Phone Number: Tyrone Chesanek 20 West Civic Center Plaza Santa Ana, CA 92701 714-647-5045 - TChesanek Santa-aua.gKg 4. Project Location: The proposed project is located with the Santa Ana Delhi Channel and Newport Beach Golf Course, situated southwest of the CA -55 and State Route 73 interchange. The diversion facilities are located adjacent to the east side of the Santa Ana Delhi Channel, approximately 600 feet upstream of Irvine Avenue and within unincorporated Orange County. The proposed sanitary sewer line in Bristol Street extends 1.6 miles to Baker Street and is located within the City of Costa Mesa. 5. Project Sponsor's Name and Address: City of Santa Ana Dept. of Public Works: 20 W. Civic Center Plaza, Santa Ana, CA 92701 City of Costa Mesa Dept. of Public Services: 77 Fair Drive, Costa Mesa, CA 92626 City of Newport Beach Dept, of Public Works: 100 Civic Center Dr. Newport Beach, CA 92660 Orange County Flood Control District: 300 N. Flower St., Santa Ana, CA 92703 6. General Plan Designation: • Facilities in Santa Ana Delhi Channel: Unincorporated County of Orange, designated Public Facilities • Facilities at Newport Beach Golf Course: Unincorporated County of Orange, designated Open Space • Pipeline to OCSD in Bristol Street: City of Costa Mesa, Public Street 7. Zoning: N/A 8. Description of the Project: See Section 2, Project Description 9. Surrounding Land Uses and Setting: See Section 2, Project Description 3-1 20C-115 20C-116