HomeMy WebLinkAboutC-8672-1 - Temporary, Non-Exclusive and Revocable License Agreement for Temporary Use of City Property (3001 Ocean Blvd)AMENDMENT NO. ONE TO TEMPORARY, NON-EXCLUSIVE AND REVOCABLE
LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
AND PACIFIC DREDGE AND CONSTRUCTION, LLC FOR
TEMPORARY USE OF CITY PROPERTY
THIS AMENDMENT NO. ONE TO TEMPORARY, NON-EXCLUSIVE AND
REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY
("Amendment No. One") is made and entered into as of this 12) day of July, 2021
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and PACIFIC DREDGE AND
CONSTRUCTION, LLC, a California limited liability company ("Licensee"), whose
address is 1444 Cesar E. Chavez Parkway, San Diego, California 92113, and is made
with reference to the following:
RECITALS
A. On April 19, 2021, City and Licensee entered into a Temporary, Non -Exclusive and
Revocable License Agreement for Temporary Use of City Property ("License
Agreement") for entry onto portions of the Beach Property, as defined in the
Agreement, for the completion of the Newport Harbor entrance channel
maintenance dredging and east jetty repairs ("Project").
B. The License Fee, defined in Section 6 of the Agreement as $11,938.00 per month,
was previously incorrectly calculated by City, as it included square footage owned
by the Federal government. City desired to revise the calculation of the License
Fee to accurately reflect land owned by City, at current market value, resulting in
the amount of $4,764.00 per month.
C. Pursuant to City Council Policy F-7, whenever less than the open market or
appraised value is received for City property, the City shall make specific findings
setting forth the reasons thereof. The City further finds that the Property provides
an essential or unique service to the community - the completion of the Project -
that might not otherwise be provided were full market value of the Property be
required.
D. Based on the finding above, the parties desire to enter into this Amendment No.
One to reflect a waiver of charging a monthly License Fee to Licensee, which would
amend the License Fee to $0.00.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
LICENSE FEE
Section 1 of the Agreement is amended in its entirety and replaced with the
following:
Pacific Dredge and Construction, LLC Page 1
"Licensee shall pay the City Zero Dollars and 00/100 ($0.00)
as a License Fee ("License Fee'), which is less than the open
market or appraised value because the City finds that the
Property provides an essential or unique service to the
community - the completion of the Project - that might not
otherwise be provided were full market value of the Property
be required."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the License Agreement shall remain unchanged and shall be in full force and
effect.
[SIGNATURES ON NEXT PAGE]
Pacific Dredge and Construction, LLC Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: -
By:
Aaron C. Harp
City Attorney
ATTEST: J/
Date: l•
4"(d /L. tum
Brown"Leilani 1.
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Gr .Leung
Cit anager
LICENSEE: PACIFIC DREDGE AND
CONSTRUCTION, LLC, a California
limited liability company
Date:
Signed in Counterpart
By:
Grant Westmorland
Managing Member
[END OF SIGNATURES]
Pacific Dredge and Construction, LLC Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By-
Aaron
yAaron C. Harp (A- 410117,i
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Gra . Leung
C' anager
LICENSEE: PACIFIC DREDGE AND
CONSTRUCTION, LLC, a California
limited liability company
Date: 7/112.0 f
Grr't Westmorland
M6naging Member
[END OF SIGNATURES]
Pacific Dredge and Construction, LLC Page 3
N
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'9 TEMPORARY, NON-EXCLUSIVE AND REVOCABLE LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
U AND PACIFIC DREDGE AND CONSTRUCTION, LLC FOR
TEMPORARY USE OF CITY PROPERTY
THIS TEMPORARY, NON-EXCLUSIVE AND REVOCABLE LICENSE
AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY ("License") is made and
entered into as of this 19th day of April, 2021 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
PACIFIC DREDGE AND CONSTRUCTION, LLC, a California limited liability company
("Licensee"). Licensee and City are individually referred to as "Party" and collectively as
"Parties" herein.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. Corona del Mar State Beach located at 3001 Ocean Boulevard, Newport Beach,
California [A.P.N. 052-120-65, A.P.N. 052-051-21, and 052-051-24] is part of the
California State Parks system, ("Beach Property") as depicted in the attached Exhibit
"A" and incorporated herein by reference. The Beach Property consists of a public
parking lot and a public beach adjacent to a federal rock revetment and jetty, and
federal waterways at the Newport Harbor entrance channel.
C. The Beach Property is operated by City pursuant to an Operating Agreement by and
between the City and the State of California, dated August 1, 1999 (the "Operating
Agreement").
D. The federal waterways at the Newport Harbor entrance channel includes jetties to
the east and west of the entrance that are owned by the federal government of the
United States of America ("Federal Property"). It is the responsibility of the United
States Army Corps of Engineers ("USACE") to maintain the Federal Property
including any and all necessary repairs to the entrance channel jetties. USACE
maintenance responsibilities also include routine dredging of Newport Harbor
including the entrance channel area.
E. Licensee is a contractor retained by USACE to complete the Newport Harbor
entrance channel maintenance dredging and east jetty repairs (the "Project"), as
described in the attached Exhibit "B" and incorporated herein by reference.
F. Licensee requests entry onto portions of the Beach Property as depicted on the
attached Exhibit "C" and incorporated herein by reference ("Construction Area") to
access the Federal Property and complete the east jetty repairs and the dredging
at the Newport Harbor entrance channel as specified in the Project, with a portion
used for temporary construction staging site for the limited storage and staging of
materials and equipment.
G. Licensee requests to use a portion of the Beach Property as depicted on the
attached Exhibit "D" and incorporated herein by reference ("License Area") to
accommodate a temporary construction staging site for the storage and staging of
materials, equipment, trailer, and Licensee parking during the term of the Project.
H. Licensee's use of the Construction Area, License Area, and access to the Beach
Property will require a significant amount of vehicular and truck traffic to pass through
the City, including several residential streets. Licensee shall utilize a pre -determined
"Haul Route" as depicted on the attached Exhibit "E" and incorporated herein by
reference, which shall be further defined and conditioned by a Haul Route Permit
issued by the City's Public Works Department, and shall be obtained by Licensee
prior to the Effective Date of this License.
A Clean Water Act Section 401 Water Quality Certification and Order ("Water
Certification") was issued by the Santa Ana Regional Water Quality Control Board,
attached as Exhibit "F" and incorporated herein by reference. Licensee shall
implement all conditions of the Water Certification in order to minimize adverse
impacts to water quality.
J. An encroachment permit from the California State Lands Commission for the ramp
work associated with the Project has been determined not to be required.
K. California Coastal Commission provided a written letter of agreement with the
commitments made by USACE that the maintenance dredging will not adversely
affect coastal resources, including eelgrass in the Project area, and concurred with
the USACE's Negative Determination made pursuant to 15 CFR 930.35 of the
National Oceanic and Atmospheric Administration implementing regulations.
L. California Coastal Commission provided a written letter of agreement with USACE's
east jetty repair project that it will not adversely affect coastal resources and
concurred with USACE's negative determination made pursuant to Section 15 CFR
930.35(d) of the National Oceanic and Atmospheric Administration implementing
regulations.
M. The USACE Los Angeles District ("USACE-LA"), issued a Record of Environmental
Consideration regarding the Project, and determined:
a. The Project does not have significant effects on the quality of the human
environment and is excluded from National Environmental Policy Act (NEPA),
documentation;
b. The Project has no anticipated significant impacts to the aquatic environment
(e.g., habitat functions, aquifer recharge, sediment conveyance or retention,
or flood storage);
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 2
c. The Project does not create any permanent loss of Waters of the United
States
d. The discharge of dredged or fill material associated with the Project have
been found to be compliant with section 404(b)(1) Guidelines (40 CFR 230)
of The Clean Water Act of 1972, as amended;
e. Following consultation with the Marine Region of the California Department of
Fish and Wildlife, the Project has no effect to federally listed threatened or
endangered species or their designated critical habitat; and
f. Following consultation with the California State Historic Preservation Office
and Federally recognized and non -Federally recognized tribes, the Project
has no adverse effect on historic properties under Section 106 of the National
Historic Preservation Act.
N. On July 8, 2020, the Project was presented to the City's Harbor Commission by
the City's Public Works Administrative Manager to receive and file.
O. On August 4, 2020, the Project was presented to the City's Parks, Beaches, and
Recreation Commission by the City's Public Works Administrative Manager to
receive and file.
P. On September 8, 2020, the Project was announced at the regular City Council
Meeting.
Q. Pursuant to the Operating Agreement, the City obtained written approval from
California State Parks to enter into this License, prior to commencing any work on
the Beach Property.
R. Pursuant to City Council Policy F-7, the City did not conduct an open bid process for
use of the temporary License Area because the dredging work and east jetty repairs
at the Beach Property provides ongoing safety of the Beach Property and access to
Newport Harbor for the enjoyment of its residents and visitors. The City shall charge
Licensee Rent at a rate that is comparable to current market rates to ensure that
revenue is equivalent to the open market value of the highest and best use of the
Beach Property and the highest financial return.
S. City would like to assist Licensee with completing the Project in a timely manner and
with little disruption to the public enjoyment of the Beach Property. City and Licensee,
therefore, desire to enter into this Agreement for City to license the License Area and
permit Licensee access the Beach Property to complete the Project by and for
USACE, subject to the covenants and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
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1. LICENSE
1.1 City grants a temporary, non-exclusive and revocable license ("License") to
Licensee for the term of this Agreement for a temporary construction staging site within
the Beach Property. The License Area is approximately twelve thousand eight hundred
(12,800) square feet in size, bounded by various fences and gates to demise it from the
rest of the Beach Property. Licensee agrees to use the License Area only for the activities
described herein this License, and not to use or permit the use of the License Area for
any other purpose without first obtaining the prior written consent of City, which consent
may be withheld in City's sole and absolute discretion.
1.2 The License granted herein is subject to the terms, covenants and
conditions hereinafter set forth, and Licensee covenants, as a material part of the
consideration for this License, to keep and perform each and every term, covenant and
condition of this Agreement.
2. PURPOSE OF THIS AGREEMENT
2.1 The purpose of this License is to provide for the temporary, non-exclusive
use of the License Area for a temporary construction staging site to complete the work
necessary for the Project. Further, this Agreement provides Licensee the temporary use
of a Construction Area within the Beach Property to access the License Area, under the
specific terms and conditions set forth herein. Licensee agrees to use the License Area,
Construction Area and Haul Route only for the activities described herein, and not to use
or permit the use of the License Area, Construction Area or Haul Route for any other
purpose without first obtaining the prior written consent of City, which consent may be
withheld in City's sole discretion.
2.2 Licensee shall protect the integrity of the Beach Property, including the
ocean waters, sand, parking lot and any other constructions on the Beach Property.
Licensee shall prevent any oil, cement or other material spills on the sand at the License
Area, Construction Area, Haul Route, or at any other area on or around the Beach
Property or any other contiguous area used to access the Project. Licensee shall return
the Beach Property to City in the exact condition as it was upon execution of this
Agreement as required under Section 9 of this Agreement. Licensee shall document, at
its sole cost and expense and shall submit such documentation (including photos and/or
video) to the City, the condition of the Beach Property prior to the commencement of the
License term.
3. PERMITS, LICENSES AND BEST PRACTICES
3.1 Upon City's request, Licensee shall, prior to any commencement of work or
any pre -work, coordinate with the City to ensure all residents adjacent to the Beach
Property have been notified of the Project no less than fourteen (14) calendar days prior
to such commencement, by means of doorhangers or other written notification informing
the residents of the construction. The notice shall be reviewed and approved by the Public
Works Department, and shall include, at minimum, a description of the project, the size
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 4
and scope of the Construction Area and License Area, the duration (including start and
ending dates), and contact information for Licensee. Notwithstanding the foregoing,
Licensee, in cooperation with City, shall further adhere to any additional notification
requirements as set forth in the Haul Route Permit.
3.2 Licensee, at its sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, licenses and certificates that may be required by
any governmental agency, including the City, to perform any and all work necessary to
complete the Project, access the License Area, Construction Area, and Beach Property.
3.3 Licensee shall have in effect a Stormwater Pollution Prevention Plan
("SWPPP") and Best Management Practices plan ("BMPs") specific to the Project
accepted by Licensee, its employees, contractors and subcontractors ("Licensee's
representatives") to ensure all activities on the Beach Property are in compliance with
industry standards best practices, including, but not limited to description of activities that
could cause pollution, control measures for preventing spills and minimizing hazards, a
spill response plan, procedures for conducting inspections and monitoring, and provisions
for sufficient training of Licensee's representatives.
3.4 Licensee shall establish, maintain and uphold business practices to the
highest degree as generally recognized in Licensee's industry, and exercise the utmost
caution for the protection and safety of Licensee and the general public at all times during
the term of this Agreement.
4. TERM
This Agreement shall commence upon the Effective Date and terminate on
December 31, 2021. Both Parties understand and agree this Agreement is for a
temporary, limited period of time and does not, and will not, result in permanent use of or
access to the License Area, Construction Area, or the Beach Property.
5. RENEWAL
The City Manager may renew this License for an additional term if it is determined
that (i) that the terms of the agreement have been met; and (ii) the use by Licensee is not
causing any negative impact on traffic circulation, parking, or the public enjoyment of the
surrounding properties and uses. Any renewals approved pursuant to this Section 5 must
be in writing and approved as to form by the City Attorney for the City.
6. LICENSE FEE
Licensee shall pay the City Eleven Thousand Nine Hundred Thirty Eight Dollars
and 00/100 ($11,938.00) per month ("License Fee") which amount shall be due and
payable on the first of each month (the "Due Date"), commencing on the Effective Date.
License Fees shall be prorated for any partial month in accordance with the actual number
of days in that month. If Licensee fails to pay the License Fee within ten (10) calendar
days of the Due Date, Licensee shall pay a late charge in an amount equal to ten percent
(10%) of the amount that was not timely paid by the Licensee.
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7. USE AND CONDITIONS OF THE LICENSE AREA, CONSTRUCTION AREA,
AND BEACH PROPERTY
7.1 General Use and Conditions.
7.1.1 Licensee understands the safety of the public is paramount to the
uses and conditions set forth herein under this Section 7 for the License Area,
Construction Area and Beach Property (collectively, "Beach Areas"). Licensee
shall maintain the Beach Areas free from waste, debris, hazards or risks to public
health, safety or welfare at all times.
7.1.2 Licensee shall not use or permit the use of the Beach Areas for any
unlawful purpose.
7.1.3 Licensee shall not commit or permit the commission of any noise or
nuisance on the Beach Areas and shall comply with any and all noise and nuisance
requirements as defined by any applicable federal, state and local laws and
regulations.
7.1.4 Use of any area on the Beach Property outside the License Area,
Construction Area or Haul Route is strictly prohibited without prior written approval
from the City.
7.1.5 Except as provided under this Agreement, Licensee shall not make
or permit to be made any alterations, additions or improvements to the License
Area, or install lighting or equipment, or install any signs, lettering or advertising
media of any type or any other visual displays, on or about the License Area
without the prior written consent of City. Notwithstanding the foregoing, Licensee
shall place all required construction notices and warning signs on or about the
Beach Property in the manner required by Federal, State or local law.
7.2 Use and Conditions of License Area.
7.2.1 Licensee's use of the License Area for a temporary construction
staging site shall be on a temporary and non-exclusive basis, limited to the terms
of this Agreement, and any and all covenants or restrictions now in effect, or which
may become applicable to the Beach Property.
7.2.2 Licensee's access to and use of the License Area for any reason,
including pre -operational and/or post -operational activities, shall be limited to the
hours between 7:00 a.m. and 6:30 p.m. on non -holiday weekdays ("Workday").
7.2.3 Licensee shall exercise all necessary precautions for opening,
closing, and securing the License Area and its equipment and materials stored in
the License Area at all times. Licensee expressly assumes all responsibility for the
protection and security of the License Area, including personal property and
equipment of Licensee.
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7.2.4 The License Area shall be temporarily fenced and screened on all
sides for the duration of the construction project. The height of fence shall be at
least six (6) feet, and fence material shall be chain link metal fence overlaid on the
exterior with an opaque vinyl screen, or other equivalent fencing and screening
material as approved by the City. The temporary fencing shall include the
installation of a locking gate which swings to the interior of the License Area to
provide access to the License Area. Licensee shall place warning signs on or about
the License Area in any manner required by federal, state or local law.
7.2.5 Licensee shall install legible signs on the License Area, visible from
the public right-of-way that includes Licensee's contact information, including a 24-
hour emergency phone number.
7.2.6 Licensee shall comply with all the terms of the Haul Route Permit,
including accessing the License Area through the designated path of travel via
Pacific Coast Highway to Marguerite to Ocean Boulevard and shall not utilize or
create any other entry or exit on the Beach Property to access the License Area.
Licensee shall utilize flag people during each Workday at the Beach Property
parking lot entrance to route all vehicles through the designated path of travel to
access the License Area. Licensee's truck traffic access to the Project using the
Haul Route should be limited so as to not negatively impact residential areas.
Further, trucks shall not queue at the entrance to the property at the top of the
ramp and Ocean Boulevard. Use of the Haul Route and the temporary parking of
any trucks at the License Area shall be in compliance with Newport Beach
Municipal Code ("NBMC") Chapter 12.32, et seq., or any other requirements or
restrictions set forth in any license or permit issued by any federal, state, or local
authority.
7.2.7 Licensee may use the License Area for the temporary storage of
equipment and materials. Any temporary stockpiling of materials is prohibited
unless such materials are stored on raised mobile platforms, pallets or other
protective barriers to prevent spills or spread of materials.
7.2.8 Licensee may temporarily place a commercial office trailer and
portable restroom facility that is accessible exclusively by Licensee
7.3 Use and Conditions of Construction Area.
7.3.1 Licensee shall have access to the Construction Area, including
access to and from the License Area as necessary to complete the Project, and
use of the Construction Area for the means and methods of construction required
to perform the maintenance and repair work of the Project. Licensee's use of the
Construction Area as identified on Exhibit C for a temporary construction staging
site shall be on a temporary and non-exclusive basis, limited to the terms of this
Agreement, and any and all covenants or restrictions now in effect, or which may
become applicable to the Beach Property.
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7.3.2 The entire Construction Area shall not exceed approximately forty-
six thousand (46,000) square feet in size, but may vary each Workday based on
the type of work performed necessary to complete the Project.
7.3.3 Licensee's access to and use of the Construction Area for any
reason, including pre -operational and/or post -operational activities, shall be limited
to Workday hours.
7.3.4 Licensee shall exercise all necessary precautions for opening,
closing, and securing the Construction Area and its equipment and materials
stored in the Construction Area at all times. Licensee expressly assumes all
responsibility for the protection and security of the Construction Area, including
personal property and equipment of Licensee.
7.3.5 The Construction Area, including all equipment and materials
temporarily located within the Construction Area shall be cordoned off each
Workday from the rest of the Beach Property with construction fencing, traffic
cones, barricades, and/or caution tape.
7.3.6 The Construction Area shall be temporarily fenced on all sides for
the duration of the construction project. The height of fence shall be at least six
(6) feet, and fence material shall be chain link metal fence, or other equivalent
fencing material as approved by the City. The temporary fencing shall include the
installation of a locking gate which swings to the interior of the Construction Area
to provide access to the Construction Area. Licensee shall place warning signs on
or about the Construction Area in any manner required by federal, state or local
law.
7.3.7 Licensee shall provide security personnel to ensure the public does
not access the Construction Area.
7.3.8 To ensure the safety of the public, when the performance of work
within the Construction Area requires Licensee's use of vehicles and/or
mechanical equipment, Licensee shall provide additional flagmen and/or security
personnel to ensure the public does not access the area(s) that have been
cordoned off pursuant to Section 7.3.5 above, and the vehicles and mechanical
equipment can safely travel between and within the License and Construction
Areas at the Beach Property.
7.3.9 Performance of work or storage of construction materials or
equipment in the Construction Area outside of the cordoned area at any time is
strictly prohibited.
7.3.10 Licensee's access to the Construction Area using vehicles, trucks, or
other equipment shall be used in compliance with the specified weight limitations
set forth under the City's Municipal Code 12.32.
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7.3.11 Unless otherwise impracticable, Licensee shall reduce the footprint
of the Construction Area as much as possible by removing all equipment, materials
and temporary barricades used to cordon off the Construction Area at the end of
each Workday and restore the Construction Area free from any waste, debris,
hazards or risk to allow public access during non -Workday hours.
7.3.12 Notwithstanding the foregoing, Licensee shall coordinate with the
City, with no less than fourteen (14) calendar days' prior notice, to temporarily
remove or relocate any fire rings located on the Beach Property as may be
necessary to complete the Project. If any fire rings are temporarily removed,
Licensee shall ensure they can be securely and safely stored on the Beach
Property.
8. CITY INSPECTION
8.1 City shall be entitled, at any time, to inspect the Beach Areas for compliance
with the terms of this Agreement, and with all applicable federal, state and local laws and
regulations.
8.2 City and its authorized City representative(s) may, without prior notice to
Licensee, enter upon and inspect the Beach Areas for any lawful purpose, provided that
City shall use commercially reasonable efforts to not interfere with Licensee's operation
and/or use of the Beach Areas in performing any such entry, inspection, and/or shared
use of the Beach Areas. In case of emergency, City or its authorized City representative(s)
may enter the Beach Areas by whatever force reasonably necessary if Licensee is not
present to open and permit entry. Any entry to the Beach Areas by City under this License
shall not be construed as a forcible or unlawful entry into, or a detainer of, the Beach
Areas, or an eviction of Licensee from the Beach Areas or any portion thereof.
9. EMERGENCY
9.1 Licensee understands the Beach Areas and Haul Route are located on
public property primarily dedicated to the use and enjoyment of the public and emergency
situations may develop from time -to -time that require access to the Property to be
immediately stopped and thereby interfere or temporarily terminate Licensee's use of the
Beach Areas. Licensee agrees that, if such a situation occurs, City shall have the right
to immediately restrict access to the Beach Areas and any equipment or materials located
on the Beach Areas for the duration of the emergency. Licensee agrees not to hold City
responsible or liable for and shall protect, defend, indemnify and hold City harmless for
any damage, loss, claim or liability of any nature suffered as a result of the loss of the use
of the Beach Areas.
9.2 Unless otherwise specifically provided in a notice of termination of this
Agreement, City's exercise of the right to restrict access to the Beach Areas is not
intended to constitute a termination of this Agreement by either Party and such event is
a risk accepted by Licensee. Licensee and City shall meet after the City determines that
an emergency has ended to establish the time and manner in which access shall be
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 9
restored. City shall have the right to reasonably determine what constitutes an
"emergency situation" pursuant to this Section.
10. MAINTENANCE
At its sole cost and expense, Licensee shall take good care of and keep the Beach
Areas neat and clean at all times. Should Licensee fail to commence required
maintenance or repairs, or cleaning of the Beach Areas to a condition satisfactory to City,
within twenty-four (24) hours after receipt of notice to do so, City may perform such work
or have such work performed by others and Licensee shall immediately reimburse City
for all direct and indirect costs associated with such work upon receipt of an invoice for
such costs. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644-
3333 for removal.
11. NO INTEREST IN PROPERTY
Notwithstanding any temporary Encroachment Permit issued to Licensee by City
for use on the Property, nothing herein shall be deemed to create a lease, or easement
of any property right, or to grant any possessory or other interest in the License Area,
Construction Area, Beach Property, or any public right-of-way, other than a license to use
and access the License Area, revocable and for a temporary term as set forth in this
Agreement.
12. RESERVATION OF RIGHTS
Licensee understands, acknowledges and agrees that any and all authorizations
granted to Licensee under this Agreement are non-exclusive and shall remain subject to
all prior and continuing regulatory and propriety rights and powers of City to regulate,
govern and use the Beach Areas, Beach Property and other City property, as well as any
existing encumbrances, deeds, covenants, restrictions, easements, dedications and
other claims of title that may affect the Beach Areas, Beach Property and City property.
13. CITY RETENTION RIGHTS
Licensee's right to use the Beach Areas during the term of this Agreement shall be
subordinate and junior to the rights of City to use and occupy the Beach Areas and the
Beach Property for any purpose.
14. SUBJECT TO STATE OPERATING AGREEMENT
The Beach Areas are located on property that is the subject of an Operating
Agreement between the State of California and the City. Licensee shall not take any
action that would cause the City to be in violation of any provisions of that Operating
Agreement. If the State of California terminates the Operating Agreement, this
Agreement shall terminate as a result and the Parties shall be released from all liabilities
and obligations under this Agreement.
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15. RELOCATION
Licensee agrees that whenever any City improvements may be required (for
example, maintenance or repair of the Beach Areas and/or Beach Property), the City may
require the relocation of the Licensee's equipment and materials stored in the License
Area at Licensee's expense, and/or Licensee's Access to the Construction Area, without
Licensee making any claim against the City for reimbursement or damage therefor.
Except in the event of an emergency or other situation requiring immediate relocation of
the Beach Areas, City shall provide Licensee with not less than thirty (30) calendar days
written notice of relocation specifying a date by which the relocation is to take place.
16. TERMINATION
16.1 Notwithstanding the term of this License, this License may be terminated
during the term or any extended term in the following manner:
16. 1.1 By either Party, at any time, for any reason, with or without cause, by
giving thirty (30) calendar days' prior written notice to the other Party; or
16.1.2 By City if, after written notice of default to Licensee of any of the
terms or conditions of this License, Licensee fails to cure or correct the default within ten
(10) business days of receipt of written notice, City may immediately terminate the
License.
17. SURRENDER
Upon expiration or termination of this Agreement, Licensee, at its sole cost and
expense, shall, within fifteen (15) calendar days, remove all of its equipment and stored
materials, restore the License Area, Construction Area and Haul Route to its original
condition or to a condition satisfactory to and approved by City, and vacate the License
Area, Construction Area and Haul Route. Restoration may include, but is not limited to,
coordinating with City to return fire rings to their original location, restoring any sidewalks
and landscaping, and removing any and all debris, waste or other material. Should
Licensee fail to restore the License Area, Construction Area and Haul Route to a condition
satisfactory to City, City may perform such work or have such work performed by others
and Licensee shall immediately reimburse City for all direct and indirect costs associated
with such work upon receipt of an invoice for such costs.
18. ADMINISTRATION
This License will be administered by the Community Development Department.
The Community Development Director or its designee shall be the License Administrator
and shall have the authority to act for City under this License. The License Administrator
or their authorized representative shall represent City in all matters pertaining to this
License.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 11
19. INDEMNIFICATION AND LIABILITY FOR DAMAGES
19.1 Irrespective of any insurance carried by Licensee for the benefit of City, and
to the fullest extent permitted by law, Licensee shall indemnify, defend, assume all
responsibility for, and hold harmless City, its elected or appointed officers, agents,
officials, employees, volunteers, and the State of California (collectively, the "Indemnified
Parties") from and against any and all claims (including, without limitation, claims for
bodily injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a "Claim" and, collectively, "Claims"), which may
arise from or in any manner relate (directly or indirectly) to Licensee's operations
conducted under this Agreement or the implementation hereof and for any damages to
property or injuries to persons, including accidental death, which may be caused by any
of Licensee's activities under this Agreement, whether such activities or performance
thereof be (i) by Licensee, or (ii) Licensee's Permittees or agents and whether such
damage shall accrue or be discovered before or after termination of this Agreement.
19.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Licensee to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties or by City's failure to comply
with the terms and conditions of this Agreement. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by Licensee.
19.3 Licensee shall be liable and responsible for the security, repair and
maintenance of the Beach Areas to the extent necessitated by Licensee's use of the
Beach Areas under this License, for such time as this License is in effect. Licensee shall
use care to protect the Beach Areas and restore it to their original condition to the
satisfaction of the City when the Beach Areas is not in use by Licensee.
20. INSURANCE
Without limiting Licensee's indemnification of City and the State of California, and
prior to commencement of work, Licensee shall obtain, provide and maintain at its own
expense during the term of this Agreement or for other periods as specified in this
Agreement, policies of insurance of the type, amounts, terms and conditions described in
the Insurance Requirements attached hereto as Exhibit "G," and incorporated herein by
reference.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 12
21. HAZARDOUS SUBSTANCES
21.1 From the date of execution of this License throughout the Term, or any
Renewal Term(s), Licensee shall not use, store, manufacture or maintain in, on, under,
about or within the Beach Areas any Hazardous Substances except (i) in such quantities
and types found customary in construction, repair, maintenance and operations of the
construction staging yard approved by this Agreement, and (ii) petroleum and petroleum
products contained within regularly operated motor vehicles. Licensee shall handle, store
and dispose of all Hazardous Substances it brings onto the Beach Areas in accordance
with applicable laws.
21.2 For purposes of this License the term "Hazardous Substance" means: (i)
any substance, product, waste or other material of any nature whatsoever which is or
becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA");
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33
U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and
Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act,
Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California
Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous
Substances); the California Hazardous Waste of Concern and Public Safety Act, Health
and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections
25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the
Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as
they, from time -to -time may be amended, (the above-cited statutes are here collectively
referred to as "the Hazardous Substances Laws") or any other Federal, State or local
statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii)
any substance, product, waste or other material of any nature whatsoever which may give
rise to liability under any of the above statutes or under any statutory or common law
theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste
or strict liability or under any reported decisions of a state or federal court; (iii) petroleum
or crude oil; and (iv) asbestos.
21.3 Notwithstanding any contrary provision of this License, and in addition to
the indemnification duties of Licensee set forth in this Agreement, Licensee agrees to
indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless
the City, its elected or appointed officers, agents, officials, employees, volunteers and
assigns from and against any and all losses, fines, penalties, claims, damages,
judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or
preparation and implementation of any remedial, response, closure or other plan of any
kind or nature which the City, its elected or appointed officers, agents, officials,
employees, volunteers, or assigns may sustain or incur or which may be imposed upon
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 13
them in connection with the use of the Beach Areas provided under this Agreement by
Licensee, arising from or attributable to the storage or deposit of Hazardous Substances
on or under the Beach Areas by Licensee. This Section is intended to operate as an
agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and
California Health and Safety Code Section 25364, to insure, protect, hold harmless, and
indemnify City for any claim pursuant to the Hazardous Substance Laws or the common
law.
21.4 City agrees that City will not, and will not authorize any third party to use,
generate, store, or dispose of any Hazardous Substances on, under, about or within the
Beach Areas in violation of any law or regulation. City and Licensee each agree to
defend, indemnify and hold harmless the other and the other's partners, affiliates, agents
and employees against any and all losses, liabilities, claims and/or costs arising from any
breach of any representation, warranty or agreement contained in this Section. This
Section shall survive the termination of this Agreement. Upon expiration or earlier
termination of this Agreement, Licensee shall surrender and vacate the Beach Areas and
deliver possession thereof to City on or before the termination date free of any Hazardous
Substances released into the environment at, on or under the Beach Areas that are
directly attributable to Licensee.
22. ASSIGNMENT
All of the terms and provisions of this License shall inure to the benefit of and shall
be binding upon the Parties and their respective successors and assigns. This
Agreement and the rights and obligations of Licensee is personal to Licensee and shall
not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in
whole or in part, without the prior written consent of the City, which consent may be
withheld in City's sole and absolute discretion for any reason or no reason at all. Any
assignment of this Agreement or the License granted hereunder, voluntarily or by
operation of law, shall automatically terminate this Agreement, unless Licensee has
obtained the prior written consent of City.
23. CONFLICT OF INTEREST
The Licensee or its employees may be subject to the provisions of the California
Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed under
this License, and (b) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest. If subject to the Act,
Licensee shall conform to all requirements of the Act. Notwithstanding Section 9.1.3,
failure to conform to the requirements of the Act constitutes a material breach and is
grounds for immediate termination of this License by City. Licensee shall indemnify and
hold harmless City for any and all claims for damages resulting from Licensee's violation
of this Section.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 14
24. NOTICE
All notices, demands, requests or approvals to be given under the terms of this
License shall be given in writing, and conclusively shall be deemed served when delivered
personally, or on the third business day after the deposit thereof in the United States mail,
postage prepaid, first-class mail, addressed as hereinafter provided. All notices,
demands, requests or approvals from Licensee to City shall be addressed to City at:
Community Development Department
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
Pacific Dredge and Construction, LLC
Jorge Tomas, Director of Operations and Sales
1444 Cesar E. Chavez Parkway
San Diego, CA 92113
Telephone: (619) 533-7932
25. STANDARD PROVISIONS
25.1 Recitals. City and Licensee acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
25.2 Compliance with Laws. Licensee, at its sole cost and expense, shall
observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations
promulgated by any governmental agency and applicable to the construction staging yard
and the Beach Areas, or the use thereof, including all Americans with Disability Act
requirements, applicable zoning ordinances, building codes and environmental laws.
Licensee shall not occupy or use the Beach Areas or permit any portion of the Beach
Areas to be occupied or used for any use or purpose that is unlawful in part or in whole,
or deemed by City to be disreputable in any manner or extra hazardous on account of
fire.
25.3 Not Agent of City. Neither anything in this Agreement nor any acts of
Licensee shall authorize Licensee or any of Licensee's Permittees to act as agent,
contractor, joint venture or employee of City for any purpose.
25.4 Waiver. The waiver by either Party of any breach or violation of any term,
covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not
be deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term, covenant,
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 15
condition, ordinance, law or regulation. The subsequent acceptance by either Party of
any fee, performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other Party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
25.5 Integrated Agreement. This License represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
25.6 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement, or any other attachments attached hereto, the
terms of this Agreement shall govern.
25.7 Interpretation. The terms of this License shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of the License or any other rule of construction which
might otherwise apply.
25.8 Amendments. This License may be modified or amended only by a written
document executed by both Licensee and City and approved as to form by the City
Attorney.
25.9 Severability. If any term or portion of this License is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this License shall continue in full force and effect.
25.10 Controlling Law and Venue. The laws of the State of California shall govern
this License and all matters relating to it and any action brought relating to this License
shall be adjudicated in a court of competent jurisdiction in the County of Orange.
25.11 Equal Opportunity Employment. Licensee represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
25.12 Taxes. Licensee shall pay any and all personal interest property taxes, real
property taxes, possessory interest taxes, fees and assessments, or similar charges
which may at any time be imposed or levied by any public entity and attributable to the
License authorized herein. City hereby gives notice to Licensee, pursuant to Section
107.6 of the California Revenue and Taxation Code that this License may create a
possessory interest in and to the property of City, a tax-exempt public entity, the payment
of which taxes shall be the sole obligation of Licensee. Licensee shall indemnify, defend
and hold harmless City against any and all such taxes, fees, penalties or interest
assessed, or imposed against City hereunder.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 16
25.13 No Third -Party Beneficiaries. Neither anything in this Agreement nor any
acts of Licensee shall authorize Licensee or any of Licensee's Permittees to act as agent,
contractor, joint venture or employee of City for any purpose.
25.14 No Attorneys' Fees. In the event of any dispute under the terms of this
License the prevailing party shall not be entitled to attorneys' fees.
25.15 City Business License. Licensee shall obtain and maintain during the
duration of this Agreement, a City business license as required by the Newport Beach
Municipal Code.
25.16 Time is of the Essence. Time is of the essence for this License.
25.17 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
26. NO DAMAGES
Licensee acknowledges that City would not enter into this License if it were to be
liable for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this License or any of the
matters referred to in this License, including, without limitation, any and all plans, permits,
licenses or regulatory approvals, and NEPA documents related to the Beach Areas.
Accordingly, Licensee covenants and agrees on behalf of itself and its successors and
assigns, not to sue City (either in its capacity as lessor in this Agreement or in its capacity
as the City of Newport Beach) for damages (including, but not limited to, actual damages,
economic damages, consequential damages, lost profits, loss of rents or other revenues,
loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any
breach of this Agreement by City or for any dispute, controversy, or issue between City
and Licensee arising out of or connected with this Agreement or any of the matters
referred to in this Agreement, including, without limitation, any and all plans, permits,
licenses or regulatory approvals, NEPA documents, or any future amendments or
enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate
and specific performance shall be Licensee's sole and exclusive judicial remedies.
Notwithstanding the foregoing, nothing in this Section 31 shall limit Licensee's remedies
as expressly set forth in this Agreement.
27. GOVERNMENT CLAIMS ACT
Licensee and City agree that in addition to any claims filing or notice requirements
in this Agreement, Licensee shall file any claim that Licensee may have against City in
strict conformance with the Government Claims Act (Government Code sections 900 et
seq.), or any successor statute.
[SIGNATURES ON NEXT PAGE]
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 17
IN WITNESS WHEREOF, the parties have caused this License to be executed on
the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 4T/)q -z-0 ZI
CITY OF NEWPORT BEACH,
A California municipal co r oration
Date: APR 2 3 20T
By: ��>c. cv,� By:
Aaron C. Harp Grac . Leung
City Attorney City anager
ATTEST:
Date: � �1 �oa
By: aI
mi. vww"
Leilani I. Brown
City Clerk EON
LICENSEE: Pacific Dredge and
Construction, LLC, a California limited liability
company
Date:
By:
Name
Title:
Signed in Counterpart
Grant Westmorland
Managing Member
�0
r '
U Z [END OF SIGNATURES]
P
Attachments: Exhibit &
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Depiction of Beach Property
USACE's Description of the Project
Depiction of Construction Area
Depiction of License Area
Depiction of Haul Route
Water Certification
Insurance Requirements
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 18
IN WITNESS WHEREOF, the parties have caused this License to be executed on
the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: �i it 11. Zo z
By: f ��
Aaron C. Harp o"^w'�
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments
CITY OF NEWPORT BEACH,
A California municipal corporation
Date.-
By:
ate:
By:
Grace K. Leung
City Manager
LICENSEE: Pacific Dredge and
Construction, LLC, a California limited liability
company yl 1,421,Date: 21
By: _
Name
Title:
iGrant Westmorland
Managing Member
[END OF SIGNATURES]
Exhibit A:
Depiction of Beach Property
Exhibit B:
USACE's Description of the Project
Exhibit C:
Depiction of Construction Area
Exhibit D:
Depiction of License Area
Exhibit E:
Depiction of Haul Route
Exhibit F:
Water Certification
Exhibit G:
Insurance Requirements
PACIFIC DREDGE AND CONSTRUCTION, LLC Page 18
EXHIBIT "A"
Depiction of Beach Property
PACIFIC DREDGE AND CONSTRUCTION, LLC Page A-1
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EXHIBIT "B"
USACE'S Description of the Project
The project will repair approximately 720 lineal feet of the damaged East Jetty returning
the damaged section to original design specifications. The repair will entail stone
replacement with new rocks. The repair is expected to require approximately 2,000 tons
of rock. No excavation is expected to be needed for the repairs as the work would be
performed from the adjacent beach. The method of repair will involve the use of land-
based equipment, consisting of a bulldozer, a crane capable of handling 5 -ton stone with
>50 ft reach, trucks for hauling stone to site, a small front loader or skid -steer, and a
concrete truck. Concrete repairs to the existing walkway would include sand blasting of
exposed steel, the use of epoxy to fill cracks, and some mechanical demolition of concrete
in preparation for repair using cement to provide a clean, even surface.
A temporary ramp/workspace to support equipment operations seaward of the mean
high-water line (MHHW) would need to be constructed on the beach immediately adjacent
to the jetty. The ramp would extend from EI. +5.5 ft MLLW (the MHHW line) to the end of
the repair area which is about at -1.0 MLLW. Total length is approximately 200 ft and
width is approximately 50 ft. requiring approximately 1,500 cy of material. Use of existing
sand on the beach of Corona Del Mar as fill material is prohibited. Following completion
of the east jetty revetment armor stone placement, the fill material becomes the property
of the Contractor and must be removed from the site unless the fill material is determined
to be beach compatible sand. The sandy fill must be tested according to the USEPA
Methods and the latest Southern California Dredge Materials Management (SCDMMT)
Guidance Document for the following:
a. CA List of Toxic Metals (Title 22 List) according to USEPA 6020 and 7471;
b. Phenols and Phthalates and Pyrethroid Pesticides and Organochlorine
Pesticides and PAHs and PCBs and their congeners;
C. Butyltins according to Krone et al 1899; and
d. Total petroleum hydrocarbons according to USEPA 8015.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page B-1
Exhibit "C"
Depiction of the Construction Area
PACIFIC DREDGE AND CONSTRUCTION, LLC Page C-1
14.
Exhibit "C"
Depiction of Construction Area
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accuracy of the data provided, however. The City of
Newport Beach and its employees and agents
1 disclaim any and aft responsibility from or relating to
any results obtained in its use.
Exhibit "D"
Depiction of the License Area
PACIFIC DREDGE AND CONSTRUCTION, LLC Page D-1
EXHIBIT "D"
LICENSE AREA
Exhibit "E"
Depiction of the Haul Route
PACIFIC DREDGE AND CONSTRUCTION, LLC Page E-1
EXHIBIT "E"
Depiction of Haul Route
EXHIBIT "F"
Water Certification
PACIFIC DREDGE AND CONSTRUCTION, LLC Page F-1
r>>
C4LIFORNI4 � FE lri,.l
Water Boards
Santa Ana Regional Water (duality Control Board
CLEAN WATER ACT SECTION 401 WATER QUALITY CERTIFICATION AND ORDER
Effective Date:
August 4, 2020
Reg. Meas. ID:
438545
Place ID:
867312
Program Type:
Fill/Excavation
SARWQCB WDID:
302020-08
USACE #:
Not Available
Project Type:
Channel Construction and Maintenance
Project:
Lower Newport Bay East Jetty Repair (Project)
Federal Permit: United States Army Corps of Engineers (USACE) Nationwide Permit
3, Maintenance
Applicant: USACE
Applicant Contact: Eduardo DeMesa,
Chief, Planning Division
United States Army Corps of Engineers
915 Wilshire Boulevards, Suite 930
Los Angeles CA 90017-3401
Phone: (213) 452-3783
Eduardo.T.Demesa(c usace.army. mil
Water Board Staff: Marc Brown
Environmental Scientist
3737 Main Street, Suite 500
Riverside CA 92501-3348
Phone: (951)321-4584
Email: Marc. Brownna waterboards.ca.gov
Water Board Contact Person:
If you have any questions, please call Santa Ana Regional Water Quality Control Board (Santa
Ana Water Board) staff listed above or (951) 782-4130 and ask to speak with the Regional
Planning Programs Section Chief.
WILLIAM RUTH, CHAIR I HOPE SMYTI"IE, EXECUTIVE OFFICER
3737 Main St., Suite 500, Riverside, CA 92501 1 www.waterboards.ca.gov/santaana
C,J RECYCLED PAPER
Lower Newport Bay East Jetty Repair
SARWQCB WDID #302020-08
Table of Contents
1_ Order..................................................................................................
II. Public Notice......................................................................................
III. Protect Purpose.................................................................................
IV. Project Description...................................................6.........................
V. Project Location...................................................6.............................
VI. Proiect Impact and Receiving Waters Information ............................
VII. Description of Direct Impacts to Waters of the State ..............6.........
VIII. Compensatory Mitigation................................................6..................
IX. California Environmental Quality Act(CEQA)....................................
X. Petitions for Reconsideration. ......................................... 6 ............. 6
XI. Fees Received............................................................................6.......
XII. Conditions... ............... 66 ................... 66 ............... 6 ........... 6 ...... 6
XIII. Certification Deviation.........................................................................
XIV. Water Quality Certification....................................................6.............
Attachment A Project Maps(s)
Attachment B Report and Notification Requirements
Attachment C Signatory Requirements
Page 5 of 12
Reg. Meas. ID: 438545
Place ID: 867312
3
3
3
3
.................. 4
.................. 4
.................. 4
.................. 5
.................. 5
I ................. 5
.................. 5
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............... 11
................ 12
Lower Newport Bay East Jetty Repair
SARWQCB WDID #302020-08
I. Order
Reg. Meas. ID: 438545
Place ID: 867312
This Clean Water Act (CWA) section 401 Water Quality Certification action and Order (Order)
is issued at the request of the USACE (herein after Permittee) for the Project. This Order is for
the purpose described in the application and supplemental information submitted by the
Permittee. The application was received on June 8, 2020. The application was deemed
complete on July 21, 2020.
II. Public Notice
The Santa Ana Water Board provided public notice of the application pursuant to California
Code of Regulations, title 23, section 3858 from June 8, 2020 to the effective date of the
Order. The Santa Ana Water Board did not receive any comments during the comment period.
III. Project Purpose
Repairs are required to the existing deteriorating and potentially hazardous jetty system
located along the easterly border of Lower Newport Bay's southern entrance channel. The
existing revetment was constructed in the 1930s, and the toe of the structure is estimated to
be at an elevation of -10 feet mean lower low water (MLLW). Over time, much of the
revetment has been covered by sand, and currently only the top 3-5 feet are visible.
IV. Project Description
The Project work would entail repairs to the existing revetment along 720 feet of the channel
side of the east entrance jetty at Newport Harbor by extending the stone protection to the top
of the existing concrete walkway. The work would also include concrete repairs to the existing
concrete structure. Existing armor stones at the top of the revetment would be removed, and a
layer of smaller stone might be placed across the footprint of the top revetment to create a
base layer. Following removal of the older stone, the concrete bulkhead would be repaired.
The older armor stone, estimated to be approximately 1-4 tons each, would be reused and
combined with approximately 2,000 tons of new armor stone and placed at a 1.5H:1 V slope
up to the top of the concrete walkway. The armor stone would be placed in such a way as to
minimize voids and maximize contact and interlocking between adjacent stones.
Due to the significant shoaling on the channel side of the east jetty, it is assumed that the
work would be performed using land-based equipment working on Corona del Mar State
Beach. Armor stone would likely be delivered by truck and stored on the beach adjacent to the
existing structure. It is not anticipated that dredging would be included as part of the work;
however, there might be some temporary localized sediment disturbance when removing the
in-place armor stone. No construction equipment would be allowed on the concrete walkway
of the east jetty.
For revetment repairs seaward of the high tide line on Corona del Mar State Beach, sand from
the beach would be moved seaward using bulldozers to create a ramp for equipment access
along the east jetty. The beach would be re -graded following completion of revetment repairs.
Alternatively, clean sand in pre -filled, very large sand bags might be used to create a
temporary ramp. These sand bags would be removed following completion of repairs. The
ramp adjacent to the east jetty would extend from ground elevation +5.5 feet MLLW (the mean
higher high water line) to the end of the repair area, which is about at -1.0 feet MLLW. Total
Project length is approximately 160 feet, and the width is approximately 25 feet.
Approximately 600 cubic yards of fill would be used for these maintenance activities.
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Lower Newport Bay East Jetty Repair
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Reg. Meas. ID: 438545
Place ID: 867312
Concrete repairs might include sand blasting of exposed steel, the use of epoxy to fill cracks,
and some mechanical demolition of concrete in preparation of the concrete walkway for repair.
Best Management Practices (BMPs) would be implemented to minimize the introduction of
sand blasting materials, epoxy, and concrete debris into waters or on to the adjacent beach. A
wet sand blasting technique would be required to reduce fugitive migration of sand blasting
materials to water and/or air.
V. Project Location
The Project is located along the southeasterly terminus of the Lower Newport Bay's Main
Entrance Channel in the Corona Del Mar section of the city of Newport Beach, Orange County
(117°52.5' W / 33-35.5'N). Maps showing the Project location are found in Attachment A of
this Order.
VI. Project Impact and Receiving Waters Information
The Project is located within the jurisdiction of the Santa Ana Water Board. Receiving waters
and groundwater potentially impacted by this Project are protected in accordance with the
Water Quality Control Plan for the Santa Ana River Basin (1995) and subsequent
amendments (Basin Plan) and other plans and policies. The Basin Plan includes water quality
standards, which consist of existing and potential beneficial uses of waters of the State, water
quality objectives to protect those uses, and the State and federal antidegradation policies.
Receiving Water: Lower Newport Bay
Existing or Potential Navigation (NAV), Water Contact Recreation (REC1), Non -
Beneficial Uses: contact Water Recreation (REC2), Commercial and Sportfishing
(COMM), Wildlife Habitat (WILD), Rare, Threatened, or
Endangered Species (RARE), Spawning, Reproduction, and
Development (SPWN), Marine Habitat (MAR), Shellfish
Harvesting (SHEL)
VII. Description of Direct Impacts to Waters of the State
Direct impacts to waters would be temporary only, due to the repairs resulting in no net loss of
habitat within the Project footprint.
Total Project fill/excavation quantities for all impacts are summarized in Table 1. Permanent
impacts are categorized as those resulting in a physical loss in area and also those degrading
ecological condition only.
Table 1: Total Pro'ect Fill/Excavation Quanti
Aquatic
Resource Type
Temporary Impact'
Permanent Impact
Physical Loss of Area Degradation of Ecological
Condition 0 l
Acres
CYZ
I LF
Acres CY
LF Acres
CY
LF
Ocean,bay
0.5
600
1 160
-- --
-- --
--
--
' Includes only temporary direct impacts to waters of the State and does not include upland areas of temporary
disturbance, which could result in a discharge to waters of the State. Temporary impacts, by definition, are restored to
pre -project conditions and therefore do not include a physical loss of area or degradation of ecological condition.
2 Cubic Yards (CY), Linear Feet (LF)
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438545
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VIII. Compensatory Mitigation
No compensatory mitigation is required because potential impacts within the proposed Project
footprint would be temporary and the area restored. The existing sidewalk would be repaired
allowing more viewing of the bay channel entrance.
IX. California Environmental Quality Act (CEQA)
Pursuant to CEQA, the Santa Ana Water Board, as the lead agency, will file a Notice of
Exemption (NOE) with the State Clearinghouse (SCH), Office of Planning and Research after
issuing this Certification. The Santa Ana Water Board has determined the Project is exempt
per CEQA Guidelines section 15301, Class 1, Categorical Exemption for Existing Facilities.
The Permittee has indicated that the proposed Project entails the repair and maintenance of
an existing structure. The Santa Ana Water Board has independently considered the
Permittee's Project information in the issuance of this Certification and finds that no changes
or alterations to the proposed Project are necessary to avoid or mitigate impacts to water
quality to a less than significant level.
X. Petitions for Reconsideration
Any person aggrieved by this action may petition the State Water Resources Control Board to
reconsider this Order in accordance with California Code of Regulations, title 23, section
3867. A petition for reconsideration must be submitted in writing and received within thirty (30)
calendar days of the issuance of this Order.
XI. Fees Received
The Permittee is a federal agency, so no Project fees are required per federal regulations.
XII. Conditions
The Santa Ana Water Board has independently reviewed the record of the Project to analyze
impacts to water quality and designated beneficial uses within the watershed of the Project. In
accordance with this Order, the Permittee may proceed with the Project under the following
terms and conditions:
A. Authorization
Impacts to waters of the State shall not exceed quantities shown in Table 1.
B. Reporting and Notification Requirements
The following section details the reporting and notification types and timing of submittals.
Requirements for the content of these reporting and notification types are detailed in
Attachment B, including specifications for photo and map documentation during the
Project construction. Written reports and notifications shall be submitted using the
Reporting and Notification Cover Sheet located in Attachment B and signed by the
Permittee or an authorized representative.
1. Project Reporting:
a. Annual Reporting. The Permittee shall submit an Annual Report each year on the
anniversary of the effective date. Annual reporting shall continue until a Notice of
Project Complete Letter is issued to the Permittee.
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2. Project Status Notifications:
Reg. Meas. ID: 438545
Place ID: 867312
a. Commencement of Construction. The Permittee shall submit a Commencement of
Construction Report at least seven (7) days prior to start of initial ground disturbance
activities.
b. Request for Notice of Completion of Discharges Letter. The Permittee shall
submit a Request for Notice of Completion of Discharges Letterfollowing completion
of active Project construction activities, including any required restoration and
Permittee -responsible mitigation. This request shall be submitted to the Santa Ana
Water Board staff within thirty (30) days following completion of all Project
construction activities. Upon acceptance of the request, Santa Ana Water Board staff
will issue to the Permittee a Notice of Completion of Discharges Letter, which will
end the active discharge period and, if appropriate, associated annual fees.
c. Request for Notice of Project Complete Letter. The Permittee shall submit a
Request for Notice of Project Complete Letterwhen construction and any required
post -construction monitoring is complete' and no further Project activities will occur.
This request shall be submitted to Santa Ana Water Board staff within thirty (30)
days following completion of all Project activities. Upon approval of the request, the
Santa Ana Water Board staff will issue to the Permittee a Notice of Project Complete
Letter, which will end the post discharge monitoring period and associated annual
fees.
3. Conditional Notifications and Reports: The following notifications and reports are
required as appropriate.
a. Accidental Discharges of Hazardous Materials.4 Following an accidental
discharge of a reportable quantity of a hazardous material, sewage, or an unknown
material, the following applies (Water Code, section 13271):
As soon as (A) the Permittee has knowledge of the discharge or
noncompliance, (B) notification is possible, and (C) notification can be provided
without substantially impeding cleanup or other emergency measures then, the
Permittee shall:
• first call — 911 (to notify local response agency)
• then call — Office of Emergency Services (OES) State Warning Center at
(800) 852-7550 or (916) 845-8911
• lastly follow the required OES procedures as set forth in the California
Hazardous Materials Spill/Release Notification Guidance
3 Completion of post -construction monitoring will be determined by Santa Ana Water Board staff and will be
contingent on successful attainment of restoration and mitigation performance criteria.
4 "Hazardous material' means any material that, because of its quantity, concentration, or physical or chemical
characteristics, poses a significant present or potential hazard to human health and safety or to the environment if
released into the workplace or the environment. "Hazardous materials" include, but are not limited to, hazardous
substances, hazardous waste, and any material that a handler or the administering agency has a reasonable basis
for believing that it would be injurious to the health and safety of persons or harmful to the environment if released
into the workplace or the environment. (Health and Safety Code, section 25501 )
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Lower Newport Bay East Jetty Repair
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Reg. Meas. ID: 438545
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ii. Following notification to OES, the Permittee shall notify Santa Ana Water
Board, as soon as practicable (ideally within twenty-four [24] hours).
Notification may be via telephone, email, delivered written notice, or other
verifiable means.
iii. Within five (5) working days of notification to the Santa Ana Water Board, the
Permittee shall submit an Accidental Discharge of Hazardous Material Report.
b. Violation of Compliance with Water Quality Standards. The Permittee shall notify
the Santa Ana Water Board of any event causing a violation of compliance with
water quality standards. Notification may be via telephone, email, delivered written
notice, or other verifiable means.
Examples of noncompliance events include lack of storm water treatment
following a rain event, discharges causing a visible plume in a water of the
State, and water contact with uncured concrete.
ii. This notification shall be followed within three (3) working days by submission
of a Violation of Compliance with Water Quality Standards Report to the Santa
Ana Water Board.
c. In -Water Work.
The Permittee shall notify the Santa Ana Water Board at least forty-eight (48)
hours prior to initiating work in water or stream diversions. Notification may be
via telephone, email, delivered written notice, or other verifiable means.
ii. Within three (3) working days following completion of work in water or stream
diversions, an In -Water Work/Diversions Water Quality Monitoring Report shall
be submitted to Santa Ana Water Board staff.
d. Modifications to Project. Project modifications may require an amendment of this
Order. The Permittee shall give advance notice to Santa Ana Water Board staff by
submitting a Modifications to Project Report, if Project implementation as described
in the application materials is altered in any way or by the imposition of subsequent
permit conditions by any local, State, or federal regulatory authority. The Permittee
shall inform Santa Ana Water Board staff of any Project modifications that will
interfere with the Permittee's compliance with this Order. Notification may be made in
accordance with conditions in the Certification Deviation section of this Order.
C. Water Quality Monitoring
1. General: If surface water is present, continuous visual surface water monitoring shall be
conducted to detect accidental discharge of construction related pollutants (e.g., oil,
grease, turbidity plume, or uncured concrete).
2. Accidental Discharges/Noncompliance: Upon occurrence of an accidental discharge
of hazardous materials or a violation of compliance with a water quality standard, Santa
Ana Water Board staff may require water quality monitoring based on the discharge
constituents and/or related water quality objectives and beneficial uses.
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Lower Newport Bay East Jetty Repair
SARWQCB WDID #302020-08
Reg. Meas. ID: 438545
Place ID: 867312
3. In -Water Work or Diversions: During planned work in water any discharge(s) to waters
of the State shall conform to the following water quality standards.
a. Oil and Grease. Waste discharges shall not result in deposition of oil, grease, wax,
or other material in concentrations that result in a visible film or in coating objects in
the water, or that cause a nuisance or adversely affect beneficial uses.
b. Oxygen. The dissolved oxygen content of enclosed bays and estuaries shall not be
depressed to levels that adversely affect beneficial uses as a result of controllable
water quality factors.
c. pH. The pH of bay or estuary waters shall not be raised above 8.6 or depressed
below 7.0 as a result of water quality factors; ambient pH levels shall not be changed
by more than 0.2 unit.
d. Turbidity. Increases in turbidity that result from controllable water quality factors
shall comply with the following: where natural turbidity is between 0 and 50
Nephelometric Turbidity Units (NTU), increases shall not exceed 20 percent; where
natural turbidity is between 50 and 100 NTU, increases shall not exceed 10 NTU;
and where natural turbidity is greater than 100 NTU, increases shall not exceed 10
percent. Changes in turbidity shall not adversely affect beneficial uses.
Measurements of turbidity shall be taken 100 feet downgradient of Project activities.
Sampling shall be conducted in accordance with Table 2 sampling parameters .5
Table 2: Sample Type and Frequency Requirements
Parameter
Unit of
Measurement
Type of
Sample
Minimum Frequency
Oil and Grease
N/A
Visual
Continuous
pH
Standard Units
Grab
Once per day during
in -water work
Turbidity
NTU
Grab
Once per day during
in -water work
Baseline sampling shall be conducted at least at one location within the Project boundary. All
other sampling shall take place at a minimum of two locations: the sample locations shall be
collected from the upper bay side and the bay outlet side of the construction area. Samples
will be taken at least 100 feet from the Project fill activity. Results of the analyses shall be
submitted to the Santa Ana Water Board by the 15`h day of each subsequent sampling
month. A map or drawing indication the locations of sampling points shall be included with
each submittal.
5 Pollutants shall be analyzed using the analytical methods described in 40 Code of Federal Regulations Part 136,
where no methods are specified for a given pollutant, a description of the method to be used must be submitted to the
Santa Ana Water Board staff for approval. Grab samples shall be taken between the surface and mid -depth and not
be collected at the same time each day to get a complete representation of variations in the receiving water. A hand-
held field meter may be used, provided the meter utilizes a U.S. Environmental Protection Agency -approved
algorithm/method and is calibrated and maintained in accordance with the manufacturer's instructions. A calibration
and maintenance log for each meter used for monitoring shall be maintained onsite.
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D. Standards
Reg. Meas. ID: 438545
Place ID: 867312
1. This Certification will remain valid until the USACE Nationwide Permit expires on March
18, 2022, or through an extended period beyond the expiration date that is authorized in
writing by the USACE.
2. This Order is subject to modification or revocation upon administrative or judicial review,
including review and amendment pursuant to Water Code section 13330 and California
Code of Regulations, title 23, chapter 28, Article 6 commencing with sections 3867-
3869, inclusive. Additionally, the Santa Ana Water Board reserves the right to suspend,
cancel, or modify and reissue this Order, after providing notice to the Permittee, if the
Santa Ana Water Board determines that the Project fails to comply with any of the
conditions of this Order or when necessary to implement any new or revised water
quality standards and implementation plans adopted or approved pursuant to the Porter -
Cologne Water Quality Control Act (Water Code, sections 13000 et seq.) or federal
Clean Water Act section 303 (Title 33 U.S Code section 1313). For purposes of Clean
Water Act section 401(d), the condition constitutes a limitation necessary to assure
compliance with water quality standards and appropriate requirements of State law.
E. General Compliance
1. Failure to comply with any condition of this Order shall constitute a violation of the
Porter -Cologne Water Quality Control Act. The Permittee and/or discharger may then be
subject to administrative and/or civil liability pursuant to Water Code section 13385.
2. If the conditions of this Order are changed, any of the criteria or conditions as previously
described are not met, or new information becomes available that indicates a water
quality problem, the Santa Ana Water Board may require that the Permittee submit a
Report of Waste Discharge and obtain Waste Discharge Requirements.
3. Permitted actions shall not cause a violation of any applicable water quality standards,
including impairment of designated beneficial uses for receiving waters, as adopted in
the Basin Plan and subsequent Basin Plan Amendments or in any applicable State
Water Resources Control Board water quality control plan or policy. The source of any
such discharge shall be eliminated as soon as practicable.
4. In response to a suspected violation of any condition of this Order, the Santa Ana Water
Board may require the holder of this Order to furnish, under penalty of perjury, any
technical or monitoring reports the Santa Ana Water Board deems appropriate, provided
that the burden, including costs, of the reports bears a reasonable relationship to the
need for the reports and the benefits to be obtained from the reports. The additional
monitoring requirements ensure that permitted discharges and activities comport with
any applicable effluent limitations, water quality standards, and/or other appropriate
requirement of State law.
5. The Permittee shall, at all times, fully comply with engineering plans, specifications, and
technical reports submitted to support this Order and all subsequent submittals required
as part of this Order. The conditions within this Order and Attachments supersede
conflicting provisions within Permittee submittals.
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Lower Newport Bay East Jetty Repair
SARWQCB WDID #302020-08
Reg. Meas. ID: 438545
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F. Administrative
1. Signatory requirements for all document submittals required by this Order are presented
in Attachment C of this Order.
2. This Order does not authorize any act that results in the taking of a threatened,
endangered, or candidate species, or any act that is now prohibited or becomes
prohibited in the future under either the California Endangered Species Act (Fish and
Game Code, sections 2050-2097) or the federal Endangered Species Act (Title 16 U.S.
Code sections 1531-1544). If a "take" will result from any act authorized under this Order
held by the Permittee, the Permittee shall obtain authorization for the take prior to any
construction or operation of the portion of the Project that may result in a take. The
Permittee is responsible for meeting all requirements of the applicable endangered
species act for the Project authorized under this Order.
3. The Permittee shall grant Santa Ana Water Board staff or an authorized representative
(including an authorized contractor acting as a Water Board representative), upon
presentation of credentials and other documents as may be required by law, permission
to:
a. Enter upon the Project or compensatory mitigation site(s) premises where a
regulated facility or activity is located or conducted, or where records are kept;
b. Have access to and copy any records that are kept and are relevant to the Project or
the requirements of this Order;
c. Inspect any facilities, equipment (including monitoring and control equipment),
practices, or operations regulated or required under this Order;
d. Sample or monitor for the purposes of assuring Order compliance.
4. A copy of this Order shall be provided to any consultants, contractors, and
subcontractors working on the Project. Copies of this Order shall remain at the Project
site for the duration of this Order. The Permittee shall be responsible for work conducted
by its consultants, contractors, and any subcontractors.
5. A copy of this Order shall be available at the Project site(s) during construction for
review by site personnel and agencies. All personnel performing work on the Project
shall be familiar with the content of this Order and its posted location at the Project site.
G. Construction
1. Dewatering: Construction dewatering discharges, including temporary flow diversions
necessary to carry out the Project, are subject to regulation by Santa Ana Water Board
Order No. R8-2020-0006, General Waste Discharge Requirements for Discharges to
Surface Waters that Pose an Insignificant (De Minimis) Threat to Water Quality.
2. Construction General Permit Requirement: The Permittee shall maintain compliance
with conditions described in and required by NPDES General Permit for Storm Water
Discharges Associated with Construction and Land Disturbance Activities (Order No.
2009-0009-DWQ; NPDES No. CAS000002) and any subsequent approvals.
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438545
SARWQCB WDID #302020-08 Place ID: 867312
3. Good Site Management "Housekeeping":
a. A Storm Water Pollution Prevention Plan (SWPPP) shall be developed by the
construction contractor prior to Project implementation. The SWPPP shall include
measures to prevent sediment from entering the watercourse during construction.
b. BMPs for effective perimeter control shall be in place at all times to control the
discharge of pollutants from the Project site during construction. Construction waste
shall be contained and protected against wind and exposure to storm water at all
times, unless being actively handled. Chemical, fuel, and lubricant containers shall
be kept closed and protected from damage or upset at all times, unless being
actively used. Dirt and landscaping material stockpiles shall have effective erosion
control BMPs in place to prevent their transport in storm water or directly into the
channel and shall not be located in any waters of the United States. Discharges of
wastewater from the Project site are prohibited.
c. Substances resulting from Project -related activities and that could be harmful to
aquatic life shall not be discharged to soils or waters of the State. These substances
include but are not limited to sandblasting waste, petroleum lubricants and fuels,
cured and uncured cements, epoxies, paints and other protective coating materials,
Portland cement concrete or asphalt concrete, and washings and cuttings thereof. All
waste concrete shall be removed from the Project site.
d. Motorized equipment shall not be maintained or parked in or near any stream
crossing, channel, waterway, or lake margin in such manner that petroleum products
or other pollutants from the equipment might enter these areas under any flow
conditions. Vehicles shall not be driven, or equipment shall not be operated on-site in
waters of the State onsite, except as necessary to complete the proposed Project.
4. Hazardous Materials: During construction activities, the Permittee shall comply with
local, State, and federal laws and regulations regarding the handling and storage of
hazardous substances.
5. Storm Water: The Project shall comply with the local regulations associated with the
Santa Ana Water Board's Municipal Stormwater Permit issued to Orange County and co -
permittees under NPDES No. CAS618030 and Waste Discharge Requirements Order
No. R8-2010-0030, and subsequent iterations thereof.
XIII. Certification Deviation
A. Minor modifications of Project locations or predicted impacts may be necessary as a
result of unforeseen field conditions, necessary engineering re -design, construction
concerns, or similar reasons. Some of these prospective Project modifications may have
impacts on water resources. For purposes of this Certification, a Certification Deviation
is a Project locational or impact modification that does not require an immediate
amendment of the Order, because the Santa Ana Water Board has determined that any
potential water resource impacts that may result from the change are sufficiently
addressed by the Order conditions and the CEQA Findings. After the termination of
construction, this Order will be formally amended to reflect all authorized Certification
Deviations and any resulting adjustments to the amount of water resource impacts and
required compensatory mitigation amounts.
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Lower Newport Bay East Jetty Repair
SARWQCB WDID #302020-08
Reg. Meas. ID: 438545
Place ID: 867312
B. A Project modification shall not be granted a Certification Deviation if it warrants or
necessitates changes that are not addressed by the Order conditions such that the
Project no longer qualifies for a categorical exemption. In this case, a supplemental
environmental review and different Order will be required.
XIV. Water Quality Certification
I hereby issue the Order (SARWQCB WDID # 302020-08) for the Lower Newport Bay East
Jetty Repair Project. This Order certifies that any discharge from the referenced Project will
comply with the applicable provisions of Clean Water Act sections 301 (Effluent Limitations),
302 (Water Quality Related Effluent Limitations), 303 (Water Quality Standards and
Implementation Plans), 306 (National Standards of Performance), and 307 (Toxic and
Pretreatment Effluent Standards), as long as all of the conditions listed in the Order are met.
The Santa Ana Water Board will file an NOE at the SCH within five (5) working days of
issuance of this Order. This discharge is also regulated pursuant to State Water Board Water
Quality Order No. 2003-0017-DWQ, which authorizes this Order to serve as Waste Discharge
Requirements pursuant to the Porter -Cologne Water Quality Control Act (Water Code,
sections 13000 et seq.).
Except insofar as may be modified by any preceding conditions, all Order actions are
contingent on: (a) the discharge being limited, and all proposed mitigation being completed in
strict compliance with the conditions of this Order and the attachments to this Order; and
(b) compliance with all applicable requirements of Statewide Water Quality Control Plans and
Policies and the Santa Ana Water Board's Basin Plan and Policies.
Digitally signed by Jayne
Joy
J a y n e) oy Date: 2020.08.04 13:25:35
-07'00'
Hope A. Smythe
Executive Officer
Santa Ana Water Quality Control Board
Attachment A Project Map(s)
Attachment B Report and Notification Requirements
Attachment C Signatory Requirements
Page 5 of 12
\ugust 4, 2020
Date
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment A SARWQCB WDID #302020-08 Place ID: 867306
Page 2 of 2
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
Copies of this Form
In order to identify your Project, it is necessary to include a copy of the Project -specific Cover Sheet below
with your report (see page 3). Please retain for your records.
Report Submittal Instructions
1. Check the box on the Report and Notification Cover Sheet next to the report or notification you are
submitting.
• Part A (Annual Report): Submitted annually from the anniversary of the Project effective date
until a Notice of Project Complete Letter is issued.
• Part B (Project Status Notifications): Used to notify the Santa Ana Water Board of the status
of the Project schedule that may affect Project billing.
• Part C (Conditional Notifications and Reports): Required on a case-by-case basis for
accidental discharges of hazardous materials, violation of compliance with water quality
standards, notification of in -water work, or other reports.
2. Sign the Report and Notification Cover Sheet and attach all information requested for the Report Type.
3. Electronic Report Submittal Instructions:
• Submit signed Report and Notification Cover Sheet and required information via email to:
RB3-40 I Reportinq; ,vvaterboards.ca.gov_
• Include in the subject line of the email:
Subject: ATTN: Marc Brown; Reg. Measure ID: 438540 Report.
Definition of Reporting Terms
1. Active Discharge Period: The active discharge period begins with the effective date of this Order
and ends on the date that the Permittee receives a Notice of Completion of Discharges Letter or, if no
post -construction monitoring is required, a Notice of Project Complete Letter. The Active Discharge
Period includes all elements of the Project, including site construction and restoration, and any
Permittee responsible compensatory mitigation construction.
2. Request for Notice of Completion of Discharges Letter: This request by the Permittee to the Santa
Ana Water Board staff pertains to projects that have post construction monitoring requirements (e.g., if
site restoration were required to be monitored for five (5) years following construction). Santa Ana
Water Board staff will review the request and send a Completion of Discharges Letterto the Permittee
upon approval. This letter will initiate the post -discharge monitoring period and a change in fees from
the annual active discharge fee to the annual post -discharge monitoring fee.
3. Request for Notice of Project Complete Letter: This request by the Permittee to the Santa Ana
Water Board staff pertains to projects that either have completed post -construction monitoring and
achieved performance standards, or have no post -construction monitoring requirements and no further
Project activities are planned. Santa Ana Water Board staff will review the request and send a Project
Complete Letterto the Permittee upon approval. Termination of annual invoicing of fees will
correspond with the date of this letter.
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
4. Post -Discharge Monitoring Period: The post -discharge monitoring period begins on the date of the
Notice of Completion of Discharges Letter and ends on the date of the Notice of Project Complete
Letter issued by the Santa Ana Water Board staff. The Post -Discharge Monitoring Period includes
continued water quality monitoring or compensatory mitigation monitoring.
5. Effective Date: August 4, 2020.
Ma /Photo Documentation Information
When submitting maps or photos, please use the following formats.
1. Map Format Information:
Preferred map formats of at least 1:24000 (1" = 2000') detail (listed in order of preference):
• GIS shapefiles: The shapefiles shall depict the boundaries of all Project areas and extent of
aquatic resources impacted. Each shape should be attributed with the extent/type of aquatic
resources impacted. Features and boundaries should be accurate to within 33 feet (10 meters).
Identify datum/projection used and, if possible, provide map with a North American Datum of 1983
(NAD83) in the California Teale Albers projection in feet.
• Google KML files saved from Google Maps: My Maps or Google Earth Pro. Maps shall show the
boundaries of all Project areas and extent/type of aquatic resources impacted. Include URL(s) of
maps. If this format is used, include a spreadsheet with the object ID and attributed with the
extent/type of aquatic resources impacted.
• Other electronic format (CAD or illustration format) that provides a context for location (inclusion
of landmarks, known structures, geographic coordinates, or USGS DRG or DOQQ). Maps shall
show the boundaries of all Project areas and extent/type of aquatic resources impacted. If this
format is used, include a spreadsheet with the object ID and attributed with the extent/type of
aquatic resources impacted.
• Aquatic resource maps marked on paper USGS 7.5 -minute topographic maps or Digital
Orthophoto Quarter Quads (DOQQ) printouts. Maps shall show the boundaries of all Project
areas and extent/type of aquatic resources impacted. If this format is used, include a spreadsheet
with the object ID and attributed with the extent/type of aquatic resources impacted.
2. Photo -Documentation: Include a unique identifier, date stamp, written description of photo details,
and latitude/longitude (in decimal degrees) or map indicating location of photo. Successive photos
should be taken from the same vantage point to compare pre/post construction conditions.
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID. 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
III REPORT AND NOTIFICATION COVER SHEET III
III Project: Lower Newport Bay East Jetty Repair IIII
Permittee: United States Army Corps of Engineers
SARWQCB WDID: 302020-08
Reg. Meas. ID: 438540 Place ID: 867306
Order Effective Date:
August 4, 2020
Page 4 of 10
Report Type Submitted
Report Type 1
❑
ReportingPa, rt A —Project
Annual Report
Projects
Report Type 2
❑
Commencement of Construction
Report Type 3
❑
Request for Notice of Completion of Discharges Letter
Report Type 4
❑
Request for Notice of Project Complete Letter
Conditional.•
Report Type 5
❑
Accidental Discharge of Hazardous Material Report
Report Type 6
❑
Violation of Compliance with Water Quality Standards Report
Report Type 7
❑
In -Water Work and Diversions Water Quality Monitoring Report
Report Type 8
❑
Modifications to Project Report
Report Type 9
Report Type 10
❑ Transfer of Property Ownership Report
❑ Transfer of Long -Term Best Management Practices (BMPs) Maintenance
Report
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
"I certify under penalty of law that I have personally examined and am familiar with the information
submitted in this document and all attachments and that, based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe that the information is true, accurate, and
complete. I am aware that there are significant penalties for submitting false information, including the
possibility of fine and imprisonment."
Print Name 1 Affiliation and Job Title
Signature Date
'STATEMENT OF AUTHORIZATION (include if authorization has changed since
application was submitted)
I hereby authorize to act in my behalf as my representative in the
submittal of this report, and to furnish upon request supplemental information in support of this
submittal.
Permittee's Signature
Date
*This Report and Notification Cover Sheet must be signed by the Permittee or a duly authorized
representative and included with all written submittals.
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
11 Part A — Project Reporting 11
Report Type 1
Annual Report
Report Purpose
Notify the Santa Ana Water Board staff of Project status during both the active
discharge and post -discharge monitoring periods.
When to Submit
Annual reports shall be submitted each year by the effective date. Annual
reports shall continue until a Notice of Project Complete Letter is issued to the
Permittee.
Report Contents
The contents of the annual report shall include the topics indicated below for
each Project period. Report contents are outlined in Annual Report Topics
below.
During the Active Discharge Period
• Topic 1: Construction Summary
• Topic 2: Mitigation for Temporary Impacts Status
• Topic 3: Compensatory Mitigation for Permanent Impacts Status
During the Post -Discharge Monitoring Period
• Topic 2: Mitigation for Temporary Impacts Status
• Topic 3: Compensatory Mitigation for Permanent Impacts Status
-e
Annual Report Topic 1
00
Construction Summary
When to Submit
With the annual report during the Active Discharge Period.
Report Contents
1. Project progress and schedule, including initial ground disturbance, site
clearing and grubbing, road construction, site construction, and the
implementation status of construction storm water BMPs. If construction
has not started, provide estimated start date and reasons for delay.
2. Map showing general Project progress.
3. If applicable:
a. Summary of Conditional Notification and Report Types 6 and 7 (Part C
below).
b. Summary of Certification Deviations.
Annual Report Topic 2
Mitigation for Temporary Impacts Status
When to Submit
With the annual report during both the Active Discharge Period and Post -
Discharge Monitoring Period.
Report Contents
1. Planned date of initiation and map showing locations of mitigation for
temporary impacts to waters of the State and all upland areas of
temporary disturbance which could result in a discharge to waters of the
State.
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
Page 4 of 10
2. If mitigation for temporary impacts has already commenced, provide a
map and information concerning attainment of performance standards
contained in the restoration plan.
Annual Report Topic 3
Compensatory Mitigation for Permanent Impacts Status
When to Submit
With the annual report during both the Active Discharge Period and Post -
Discharge Monitoring Period.
Report Contents
*If not applicable report N/A.
Part A. Permittee Responsible
1. Planned date of initiation of compensatory mitigation site installation.
2. If installation is in progress, a map of what has been completed to date.
3. If the compensatory mitigation site has been installed, provide a final map
and information concerning attainment of performance standards
contained in the compensatory mitigation plan.
Part B. Mitigation Bank or In -Lieu Fee (ILF)
1. Status or proof of purchase of credit types and quantities.
2. Include the name of bank/ILF Program and contact information.
3. If ILF, location of project and type if known.
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
11 Part B - Project Status Notifications 11
Report Type 2
Commencement of Construction
Report Purpose
Notify Santa Ana Water Board staff prior to the start of construction.
When to Submit
Must be received at least seven (7) days prior to start of initial ground
disturbance activities.
Report Contents
1. Date of commencement of construction.
2. Anticipated date when discharges to waters of the State will occur.
Report Contents
3. Project schedule milestones, including a schedule for onsite
compensatory mitigation, if applicable.
Report Type 3
Request for Notice of Completion of Discharges Letter
Report Purpose
Notify Santa Ana Water Board staff that post -construction monitoring is
required and that active Project construction, including any mitigation and
ermittee responsible compensatory mitigation, is complete.
When to Submit
Must be received by Santa Ana Water Board staff within thirty (30) days
following completion of all Project construction activities.
Report Contents
1. Status of storm water Notice of Termination(s), if applicable.
2. Status of post -construction storm water BMP installation.
3. Pre- and post -photo documentation of all Project activity sites where the
discharge of dredge and/or fill/excavation was authorized.
4. Summary of Certification Deviation discharge quantities compared to
initial authorized impacts to waters of the State, if applicable.
5. An updated monitoring schedule for mitigation for temporary impacts to
waters of the State and Permittee responsible compensatory mitigation
during the post -discharge monitoring period, if applicable.
Report Type 4
Request for Notice of Project Complete Letter
Report Purpose
Notify Santa Ana Water Board staff that construction and/or any post -
construction monitoring is complete, or is not required, and no further Project
activity is planned.
When to Submit
Must be received by Santa Ana Water Board staff within thirty (30) days
following completion of all Project activities.
Report Contents
Part A: Mitigation for Temporary Impacts
1. A report establishing that the performance standards outlined in the
restoration plan have been met for Project site upland areas of temporary
disturbance that could result in a discharge to waters of the State.
2. A report establishing that the performance standards outlined in the
restoration plan have been met for restored areas of temporary impacts to
waters of the State. Pre- and post -photo documentation of all restoration
sites.
Part B: Permittee Responsible Compensatory Mitigation
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
1. A report establishing that the performance standards outlined in the
compensatory mitigation plan have been met.
2. Status on the implementation of the long-term maintenance and
management plan and funding of endowment.
3. Pre- and post -photo documentation of all compensatory mitigation sites.
4. Final maps of all compensatory mitigation areas (including buffers).
Part C: Post -Construction Storm Water BMPs
1. Date of storm water Notice of Termination(s), if applicable.
2. Report status and functionality of all post -construction BMPs.
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Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
11 Part C — Conditional Notifications and Reports 11
Report Type 5
Accidental Discharge of Hazardous Material Report
Report Purpose
Notifies Santa Ana Water Board staff that an accidental discharge of
When to Submit
hazardous material has occurred.
When to Submit
Within five (5) working days following the date of an accidental discharge.
Continue reporting as required by Santa Ana Water Board staff.
Report Contents
1. The report shall include the OES Incident/Assessment Form, a full
Report Contents
description and map of the accidental discharge incident (i.e., location,
time and date, source, discharge constituent and quantity, aerial extent,
and photo documentation). If applicable, the OES Written Follow -Up
Report may be substituted.
2. If applicable, any required sampling data, a full description of the sampling
methods, including frequency/dates and times of sampling, equipment,
locations of sampling sites.
3. Locations and construction specifications of any barriers, including silt
curtains or diverting structures and any associated trenching or anchoring.
Report Type 6
Violation of Compliance with Water Quality Standards Report
Report Purpose
Notifies Santa Ana Water Board staff that a violation of compliance with water
When to Submit
quality standards has occurred.
When to Submit
The Permittee shall report any event that causes a violation of water quality
standards within three (3) working days of the noncompliance event
notification to Santa Ana Water Board staff.
Report Contents
The report shall include: the cause; the location shown on a map; and the
period of the noncompliance, including exact dates and times. If the
noncompliance has not been corrected, include: the anticipated time it is
expected to continue; the steps taken or planned to reduce, eliminate, and
prevent reoccurrence of the noncompliance; and any monitoring results, if
required by Santa Ana Water Board staff.
Report Type 7
In -Water Work and Diversions Water Quality Monitoring Report
Report Purpose
Notifies Santa Ana Water Board staff of the completion of in -water work.
When to Submit
Within three (3) working days following the completion of in -water work.
Continue reporting in accordance with the approved water quality monitoring
Ian.
Report Contents
As required by the approved water quality monitoring plan.
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment B SARWQCB WDID #302020-08 Place ID: 867306
Report Type 8
Modifications to Project Report
Report Purpose
Notifies Santa Ana Water Board staff if the Project, as described in the
application materials, is altered in any way or by the imposition of subsequent
When to Submit
permit conditions by any local, State, or federal regulatory authority.
When to Submit
If Project implementation as described in the application materials is altered in
Report Contents
any way or by the imposition of subsequent permit conditions by any local,
State, or federal regulatory authority.
Report Contents
A description and location of any alterations to Project implementation.
Identification of any Project modifications that will interfere with the
Permittee's compliance with the Order.
Report Type 9
Transfer of Property Ownership Report
Report Purpose
Notifies Santa Ana Water Board staff of change in ownership of the Project or
Permittee -responsible mitigation area.
When to Submit
At least ten (10) working days prior to the transfer of ownership.
Report Contents
1. A statement that the Permittee has provided the purchaser with a copy of
Report Contents
this Order and that the purchaser understands and accepts:
a. the Order's requirements and the obligation to implement them or
be subject to administrative and/or civil liability for failure to do so;
and
b. responsibility for compliance with any long-term BMP'
maintenance plan requirements in this Order.
2. A statement that the Permittee has informed the purchaser to submit a
written request to the Santa Ana Water Board to be named as the
permittee in a revised order.
Report Type 10
Transfer of Long -Term BMP Maintenance Report
Report Purpose
Notifies Santa Ana Water Board staff of transfer of long-term BMP
maintenance responsibility.
When to Submit
At least 10 working days prior to the transfer of BMPs maintenance
res onsi ility.
Report Contents
A copy of the legal document transferring maintenance responsibility of post -
construction BMPs.
' Best Management Practices (BMPs) is a term used to describe a type of environmental or water
pollution control.
Page 4 of 10
Lower Newport Bay East Jetty Repair Reg. Meas. ID: 438540
Attachment C SARWQCB WDID #302020-08 Place ID: 867306
SIGNATORY REQUIREMENTS
All Documents Submitted In Compliance With This Order
Shall Meet The Following Signatory Requirements.-
1.
equirements:
1. All applications, reports, or information submitted to the Santa Ana Regional Water
Quality Control Board (Santa Ana Water Board) shall be signed and certified as follows:
a) For a corporation, by a responsible corporate officer of at least the level of
vice-president.
b) For a partnership or sole proprietorship, by a general partner or proprietor,
respectively.
c) For a municipality, or a State, federal, or other public agency, by either a
principal executive officer or ranking elected official.
2. A duly authorized representative of a person designated in items 1.a through 1.c
above may sign documents if:
a) The authorization is made in writing by a person described in items 1.a
through 1.c above.
b) The authorization specifies either an individual or position having
responsibility for the overall operation of the regulated activity.
c) The written authorization is submitted to the Santa Ana Water Board staff contact
prior to submitting any documents listed in item 1 above.
3. Any person signing a document under this section shall make the following
certification:
"I certify under penalty of law that I have personally examined and am familiar
with the information submitted in this document and all attachments and that,
based on my inquiry of those individuals immediately responsible for obtaining
the information, I believe that the information is true, accurate, and complete. I
am aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment."
Page 1 of 1
EXHIBIT "G"
Insurance Requirements
1. Provision of Insurance. Without limiting Licensee's indemnification of City, and
prior to commencement of Work, Licensee shall obtain, provide and maintain at its
own expense during the term of this Agreement, policies of insurance of the type and
amounts described below and, in a form, satisfactory to City. Licensee agrees to
provide insurance in accordance with requirements set forth here. If Licensee uses
existing coverage to comply and that coverage does not meet these requirements,
Licensee agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Licensee shall maintain Workers'
Compensation Insurance providing statutory benefits and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each employee
for bodily injury by accident and each employee for bodily injury by disease in
accordance with the laws of the State of California, Section 3700 of the Labor
Code. In addition, Licensee shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's Liability Insurance
in accordance with California law for all of the subcontractor's employees. The
insurer issuing the Workers' Compensation insurance shall amend its policy by
endorsement to waive all rights of subrogation against City, its elected or
appointed officers, agents, officials, employees, volunteers, and any person or
entity owning or otherwise in legal control of the property upon which Licensee
performs the Project and/or Services contemplated by this Agreement.
Licensee shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its elected or appointed officers,
agents, officials, employees, volunteers, and any person or entity owning or
otherwise in legal control of the property upon which Licensee performs the
Project and/or Services contemplated by this Agreement.
B. Marine General Liability (MGL) or General Liability Insurance. Licensee
shall maintain marine general liability or commercial general liability insurance
with no waterborne exclusions, and if necessary umbrella liability insurance,
with coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate and two million
dollars ($2,000,000) completed operations aggregate. The policy shall cover
PACIFIC DREDGE AND CONSTRUCTION, LLC Page G-1
liability arising from premises, operations, products -completed operations,
personal and advertising injury, bodily injury and property damage, terminal
operators/wharfingers liability, sudden and accidental pollution, USL & H and
liability assumed under an insured contract (including the tort liability of another
assumed in a business contract) with no endorsement or modification limiting
the scope of coverage for liability assumed under a contract.
C. Automobile Liability Insurance. Licensee shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00
01 covering bodily injury and property damage for all activities of Licensee
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than one million dollars ($1,000,000) combined single limit for
each accident.
D. Vessel Hull & MachinerV. Licensee shall maintain vessel hull and
machinery insurance covering bodily injury and property damage to other
vessels and providing collision coverage for damage caused to other vessels
in an amount not less than one million dollars ($1,000,000) combined single
limit for each incident.
E. Protection & Indemnity Insurance (including crew). Licensee shall
maintain insurance covering liability in an amount not less than one million
dollars ($1,000,000) combined single limit for each incident, for any third -party
bodily injury or property damage caused by any vessels used by Licensee to
complete the project. Coverage shall include coverage to the crew.
F. Pollution LiabilitV Insurance. If required, Contractor shall maintain a
policy providing contractor's pollution liability ("CPL") coverage with a total limit
of liability of no less than five million dollars ($5,000,000) per loss and ten
million dollars ($10,000,000) in the aggregate per policy period. Claims made
policies require a 5 -year extended reporting period. The CPL policy shall
include coverage for cleanup costs, third -party bodily injury and property
damage, including loss of use of damaged property or of property that has not
been physically injured or destroyed, resulting from pollution conditions caused
by contracting operations. Coverage as required in this paragraph shall apply
to sudden and non -sudden pollution conditions resulting from the escape or
release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or
gases, waste materials, or other irritants, contaminants, or pollutants. The CPL
shall also provide coverage for transportation and off -Site disposal of materials.
The policy shall not contain any provision or exclusion (including any so-called
"insured versus insured" exclusion or "cross -liability" exclusion) the effect of
which would be to prevent, bar, or otherwise preclude any insured or additional
insured under the policy from making a claim which would otherwise be
covered by such policy on the grounds that the claim is brought by an insured
or additional insured against an insured or additional insured under the policy.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page G-2
G. Maritime Employers Liability (MEL). Licensee shall maintain maritime
employers' liability coverage in an amount not less than one million dollars
($1,000,000). Further, Licensee stipulates that divers employed for this project
shall be commercially certified. A recreational certificate is not sufficient.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverages maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees, volunteers,
and any person or entity owning or otherwise in legal control of the property
upon which Licensee performs the Project and/or Services contemplated by
this Agreement or shall specifically allow Licensee or others providing
insurance evidence in compliance with these requirements to waive their right
of recovery prior to a loss. Licensee hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance
clauses from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, and pollution liability,
automobile liability, protection and indemnity liability, and vessel pollution
liability if required, but not including professional liability, shall provide or be
endorsed to provide that City, its elected or appointed officers, agents, officials,
employees, volunteers, agents, the State of California Department of Parks and
Recreation, and any person or entity owning or otherwise in legal control of the
property upon which Licensee performs the Project and/or Services
contemplated by this Agreement shall be included as additional insureds under
such policies.
C. Primary and Non -Contributory. Licensee's insurance coverages shall be
primary insurance and/or the primary source of recovery with respect to City,
its elected or appointed officers, agents, officials, employees, volunteers, and
any person or entity owning or otherwise in legal control of the property upon
which Licensee performs the Project and/or Services contemplated by this
Agreement. Any insurance or self-insurance maintained by City shall be excess
of Licensee's insurance and shall not contribute with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage (except for
nonpayment for which ten (10) calendar days' notice is required) for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
PACIFIC DREDGE AND CONSTRUCTION, LLC Page G-3
A. Evidence of Insurance. Licensee shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver
of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. All of the executed
documents referenced in this Agreement must be returned to City within ten
(10) regular City business days after the Agreement is fully executed. Insurance
certificates and endorsements must be approved by City's Risk Manager prior
to commencement of work. Current certification of insurance shall be kept on
file with City at all times during the term of this Agreement. City reserves the
right to require complete, certified copies of all required insurance policies, at
any time.
B. City's Right to Revise Requirements. The City reserves the right at any
time during the term of the Agreement to change the amounts and types of
insurance required by giving Licensee ninety (90) calendar days' advance
written notice of such change.
C. Right to Review Subcontracts. Licensee agrees that upon request, all
agreements with subcontractors or others with whom Licensee enters into
agreements with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Licensee shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and Licensee
shall ensure that City is an additional insured on insurance required from
subcontractors. For CGL coverage, subcontractors shall provide coverage with
a format at least as broad as CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Licensee acknowledges and
agrees that any actual or alleged failure on the part of City to inform Licensee
of non-compliance with any requirement imposes no additional obligations on
City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Exhibit are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by
any insurance. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue and is not intended by any
party or insured to be all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the Licensee maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for higher
limits maintained by the Licensee. Any available proceeds in excess of
specified minimum limits of insurance and coverage shall be available to the
City.
F. Self -Insured Retentions. Licensee agrees not to self -insure or to use any
self-insured retentions on any portion of the insurance required herein and
further agrees that it will not allow any indemnifying party to self -insure its
PACIFIC DREDGE AND CONSTRUCTION, LLC Page G-4
obligations to City. If Licensee's existing coverage includes a self-insured
retention, the self-insured retention must be declared to City. City may review
options with Licensee, which may include reduction or elimination of the self-
insured retention, substitution of other coverage, or other solutions. Licensee
agrees to be responsible for payment of any deductibles on their policies.
G. City Remedies for Non -Compliance. If Licensee or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Licensee's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Licensee or reimbursed by Licensee upon
demand.
H. Timely Notice of Claims. Licensee shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Licensee's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of
any such claim or claims if they are likely to involve City.
I. Coverage not Limited. All insurance coverage and limits provided by
Licensee and available or applicable to this Agreement are intended to apply
to the full extent of the policies. Nothing contained in this Agreement or any
other agreement relating to City or its operations limits the application of such
insurance coverage.
J. Coverage Renewal. Licensee will renew the coverage required here
annually as long as Licensee continues to provide any Work under this
Agreement or any other agreement with City. Licensee shall provide proof that
policies of insurance required herein expiring during the term of this Agreement
have been renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has been ordered shall be submitted prior
to expiration. A coverage binder or letter from Licensee's insurance agent to
this effect is acceptable. A certificate of insurance and/or additional insured
endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five (5) calendar days of the
expiration of the coverages.
PACIFIC DREDGE AND CONSTRUCTION, LLC Page G-5
Q R 119 P+ 25 ® C
Q Search s:t Insured
Insured Name
Name:
Pacific Dredge and Construction
Pacific Dredge and Construction LLC (FV(
LLC •
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Account Number:
FV00000486
Pacific Dredge and Construction LLC
Address:
P.O. Box 12787, San Diego, CA,
92112-3788
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Status:
Currently in Compliance.
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Address 1:
P.O. Box 2905 Ocean Blvd
12787
Address 2:
City:
San Diego Corona Del Mar
State:
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