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HomeMy WebLinkAboutC-6383 - License and Encroachment Agreement for Ground Water Monitoring Well EPN N2015-0357 for Big Canyon ParkChi RECORDING REQUESTED AND S WHEN RECORDED RETURN TO V Public Works Department City of Newport Beach 100 Civic Center Drive Post Office Box 1768 Newport Beach, CA 92658-1768 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder ��II III'I III I�III �� I ��I�I ill {�I I IIT I��i !I��I III�I III ! I I ill NO FEE *$ R 0 0 0 8 0 2 2 1 3 3$ 2015000629153 9:10 am 12114/15 62 411 Al2 15 0.00 0.00 0.00 0.00 42.00 0.00 0.00 0.00 Exempt from recoding fee per Government Code §§ 6103 and 27383 Documentary Transfer Tax Exempt per Rev & Tax Code § 11922 Space above this line Reserved for Use by Recorder LICENSE AND ENCROACHMENT AGREEMENT FOR GROUND WATER MONITORING WELL (EPN 2015-0357) THIS LICENSE AND ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this day of D"ec::E , 2015, by and between Ford Motor Company, am-"Fflefieam Atita•nati% Corporation, (hereinafter "Well Owner"), and the City of Newport Beach, California, a unicipal corporation organized and existing under and by virtue of its Charter and t Constitution and the laws of the State of California, (hereinafter "City"). ,�e Sawa �e RECITALS: WHEREAS, City is the owner of certain real property located in the City of Newport Beach, County of Orange, State of California, commonly known as Big Canyon Park, and legally described as those portions of blocks 52, 53, 55 and 56 of Irvine Subdivision as per map recorded in Book 1 Page 88, of Miscellaneous Record Maps, in the office of the County Recorder of Orange County, California (hereinafter the "Property"). WHEREAS, pursuant to the requirements of the California Regional Water Quality Control Board (hereinafter "RWQCB") three (3) groundwater monitoring wells are to be installed to evaluate the down gradient distribution of trichloroethene (hereinafter "TCE") in groundwater within Big Canyon Park. The wells are to be installed at locations where results of previously collected grab groundwater samples indicated low or non -detect concentrations of TCE. The three (3) groundwater monitoring wells shall be sampled according to ongoing remediation activities regulated by the RWQCB and the wells shall remain until cleanup activities are deemed complete by the RWQCB. Ford Motor Company License and Encroachment Agreement Page 1 WHEREAS, Well Owner desires to install three (3) groundwater monitoring wells and appurtenances on the Property in the location depicted on Exhibit "A" attached hereto and incorporated herein by reference. These monitoring wells as described and depicted on the Well Construction Detail, which is attached hereto as Exhibit "B" shall be hereinafter referred to as the "Encroachments," Owner desires to retain the Encroachments on the Property for a period up to ten (10) years from date of installation. WHEREAS, City has agreed to grant Well Owner a license to use the Property as set forth herein and an encroachment permit ("Permit") for the Encroachments, provided that Well Owner executes and abides by the term of this Agreement and fully complies with the provisions of Chapter 14.34 (Water Well Standards) of the Newport Beach Municipal Code and other applicable rules, laws, statutes, and regulations. WHEREAS, the parties hereto desire to execute an agreement outlining the conditions required by City to permit Well Owner to install and maintain said Encroachments. NOW, THEREFORE, the parties hereto agree as follows: 1.0 LICENSE. The City hereby grants to Well Owner a license revocable with or without cause at any time by the City to construct and maintain the Encroachments upon all of the terms and conditions of the Permit and this Agreement ("License"). In General. Well Owner hereby agrees to install, operate, inspect, monitor, maintain, relocate, and/or remove the Encroachments in accordance with this Agreement, the Public Works Department's Permit requirements, and all applicable provisions of the City of Newport Beach Municipal Code, as amended from time to time. (b) Maintenance. Well Owner shall install, operate, inspect, monitor, maintain, and repair the Encroachments and the Property so as to keep the Encroachments and such area in a safe, clean and secure condition at all times. Well Owner shall maintain the Encroachments in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so. In the event that Owner does not maintain the Encroachments and the Property as required herein, the City may terminate this License as more particularly provided in Section 3.0 herein. Permit Required for All Street Work. In the event that City streets must be closed in order to maintain the Encroachments or to take samples from the monitoring well, Well Owner must first obtain a permit from the City Public Works Department and comply with all Ford Motor Company License and Encroachment Agreement Page—2 conditions of the permit and all requirements of Chapter 12.62 of the Newport Beach Municipal Code. (d) Removal of Encroachments. Well Owner agrees to remove the Encroachments when the Encroachments are no longer required by the Orange County Health Care Agency or any other public entity. At that time, Owner agrees to restore the Property to its former condition, at Well Owners sole cost and expense. (e) MonitoringWellFinal B ort. Well Owner hereby agrees to submit .p� the final report of the monitoring program to the City's Public Works Director. 3.0 TERMINATION. This License is terminable with or without cause by the City at any time. Well Owner shall remove the Encroachments and restore the Property to its former condition, at Well Owner's sole cost and expense, within thirty (30) days of written notice from the City. In the event Well Owner fails to remove the Encroachments and restore the Property within said time period, City shall have the right to do so without notice. Well Owner shall immediately reimburse the City for all out-of- pocket expenses expended to remove the Encroachments and restore the property. Said amounts shall accrue interest from the date expended by the City at the maximum non -usurious interest rate permitted by law. 4.0 OTHER TERMS. Well Owner and City further agree as follows: (a) Well Owner may construct and install the Encroachments provided they are in substantial conformance with the plans and specifications on file in the City's Public Works Department, Exhibit "B," and located as described in Exhibit "A" attached hereto. If the Encroachments as actually built or installed during the time of construction vary from the Encroachments approved herein, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built" plans. (b) If City or other public/private facilities or improvements are damaged by the installation or presence of the Encroachments, Well Owner shall be responsible for the cost of repairs and restoration. (c) Should City be required to enter onto the Property to exercise its primary rights associated with the Property, including but not limited to, the maintenance, removal, repair, renewal, replacement, or enlargement of existing or future public facilities or improvements, City may remove all or a portion of the Encroachments, as required, and in such event: Ford Motor Company License and Encroachment Agreement Page 3 (i) City shall notify Well Owner of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Well Owner shall be responsible for arranging for any renewal, replacement, or restoration of the Encroachments affected by such work by City. (iii) Well Owner agrees to bear the cost of any removal of the Encroachments or appurtenances affected by such work by City. (iv) Well Owner agrees to pay all costs for renewal, replacement, or restoration of the Encroachments. 5.0 MATERIAL BREACH. In the event any party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement. In the event the breaching party is the Well Owner, City may enter upon the Right -of -Way and remove all or part of the improvements or Encroachments installed by Well Owner. Termination because of breach shall be upon a minimum of ten (10) days notice, with the notice specifying the date of termination. 6.0 INDEMNITY. Well Owner hereby agrees to indemnify and defend the City, its City Council, boards, commissions, officers, agents and employees, from and against, any and all actions, suits, claims, damages to persons or property, losses, costs, expenses, penalties, obligations, errors, omissions or liabilities, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, which may arise in consequence of the granting of this permit, or in any way connected with or related to the design, construction, operation, maintenance or continued existence of the Encroachments. 7.0 INSURANCE. Without limiting Well Owner's indemnification of City, and prior to commencement of construction of the Easements, Well Owner shall obtain, provide and maintain at its own expense during the term of this License, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit "C," and incorporated herein by reference. (a) Successors and Assigns. Well Owner agrees that this Agreement shall remain in full force and effect from execution thereof and shall be binding upon the heirs, successors, and assigns of Well Owner's interest in the land, whether fee or otherwise. This Ford Motor Company License and Encroachment Agreement Page 4 Agreement shall not be assigned without City's prior written approval. (b) Amendment or Modification. This Agreement may not be modified or amended except by written agreement executed by the then - owner of the Well Owners property and the City Property and recorded in the Office of the County Recorder, County of Orange, California. (c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. (d) Severability. The invalidity or unenforceability of any provision of this Agreement with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. Recordation. This Agreement shall be recorded in the Office of the County Recorder, County of Orange, California, and it shall serve as notice to all parties succeeding to the interest of Well Owner or the City that their use of the Property and the Property shall be benefited and/or restricted in the manner herein described, FN rel Z FIX01 Ford Motor Company License and Encroachment Agreement Page 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. APPROVED AS TO FORM: CITY ATT R El'S OFFICE Date: , '� L---- Y Aaron C. Harp CAM ol►tihf City Attorney � lu I 101; ATTESTP- Date: bkBy Leilani I. Brown City Clerk �Ra CITY OF NEWPORT BEACH, a California municipal corporation Date:--U- By:,-,,o By:,- David A. Webb Public Works Director WELL OWNER: FORD MOTOR COMPANY, avi- 4cme ' W aoja�re corporation Date: d le [-L'q S Bradley Gapon -I' Assistant General Counsel Secretary Date: //-- /O - i By: CoreyacGi ' ray Assists ecr ary Attachments: Exhibit A - Big Canyon Park and Ground Water Well Locations Exhibit B - Well Construction Detail Exhibit C - Insurance Requirements Ford Motor Company License and Encroachment Agreement Page 6 LICENSE AND ENCROACHMENT AGREEMENT FOR GROUND WATER MONITORING WELL (EPN 2015-0357) Witness: Subscribed worn to before me this _ day of 2015 LR4DA G. BINGHAI NOTARY PUBLIC -STATE OF MY Commission Acting in the Cc EXHIBIT A BIG CANYON PARK AND GROUND WATER WELL LOCATIONS Ford Motor Company License and Encroachment Agreement Page A-1 m W / / / / / pxwMyyawd 10 oy lMNOwd SILO 5182 ZO Hgell5001L6Ell L6E19006CtiS Z v � O0mro n <n r RO9A I h �Z b9 n / / / / / pxwMyyawd 10 oy lMNOwd SILO 5182 ZO Hgell5001L6Ell L6E19006CtiS EXHIBIT B WELL CONSTRUCTION DETAIL Ford Motor Company License and Encroachment Agreement Page B-1 Transmittal Sent Via: ❑ Messenger ❑ U.S. Mail Date: 07/16/2015 To: Public Works Department 100 Civic drive Newport Beach, CA 92660 949-644-3309 EXHIBIT B ❑ Overnight Mail From: Meilani Bowman-Kamaha'o cc: Project Number: 8615397106.02.2A Project Name: Former Ford Aeronutronic Property Item Description 1 Well Permit Application 2 Well Construction Diagram 3 Proposed Monitoring Well Locations Narrative Work Plan: Amec Foster Wheeler 121 Innovation Dr, Ste 200 Irvine Ca, 92617 Amec Foster Wheeler is proposing to install three monitoring wells (P-49, P-50, P-51) using hollow stem auger drilling methodology. Each well is anticipated to encounter groundwater at a depth between approximately six and 25 feet below ground surface and will be screened for five feet. Total depth of the monitoring wells may be up to 30 feet below ground surface. The Monitoring wells will be constructed as indicated on the attached diagram, with two inch schedule 40 polyvinyl chloride (PVC) casing, five feet of 0.020 inch slotted screen. The filter pack will be #3 sand that extends at least one foot above the screened interval, followed by approximately two feet of bentonite chips above the screen, neat cement or cement/Bentonite grout to approximately 2 feet below ground surface. Each well will be completed with a flush mounted, traffic -rate boxes set into concrete. The fieldwork is scheduled to begin on 07/23/2015. Please let the undersigned know if you anticipate a conflict with permit issuance before the start date. Best Regards, Meilani Bowman-Kamaha'o Amec Foster Wheeler Direct: (949) 722-4126 AMEC 121 Innovation Drive, Suite 200 Irvine, CA USA 92617 Tel (949)642-0245 Fax (949) 642.4474 www.amec.com Well vault Locking well cap EXHIBIT B Flush mount surface completion in a traffic rated vault, sloped to direct surface water away from the wellhead Ground surface 77 Concrete 7 77777 Annular seal (neat cement grout) Bentonite seal 2 -inch diameter schedule 40 PVC blank well casing 8 -inch diameter borehole Sand pack 2 -inch diameter PVC well screen (0.020 -inch slots) Well cap Boring bottom WELL SCHEMATIC amec Former Ford Aeronutronic Property foster Newport Beach, California Wheeler Figure Dale: 02/26/2015 1 Project No, 003971005 1 4 EXHIBIT C INSURANCE REQUIREMENTS REAL PROPERTY ENCROACHMENT AGREEMENT 1. Provision of Insurance. Without limiting Owner's indemnification of City, and prior to commencement of construction of the Easements, Well Owner shall obtain, provide and maintain at its own expense during the term of this License, policies of insurance of the type and amounts described below and in a form satisfactory to City. Well Owner agrees to provide insurance in accordance with requirements set forth herein. If Well Owner uses existing coverage to comply and that coverage does not meet these requirements, Well Owner 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. General Liability Insurance. Well Owner shall maintain commercial general liability insurance, 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. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). 4. Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this License shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Well Owner or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Well Owner hereby waives its own right of recovery against City. B. Additional Insured Status. All liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents and volunteers shall be included as insureds under such policy. Ford Motor Company License and Encroachment Agreement Page C-1 C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. The policy shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Well Owner shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement and other endorsements as specified herein for liability coverage. Insurance certificate and endorsement must be approved by City's Risk Manager prior to commencement of construction of the Easements. Current certification of insurance shall be kept on file with City at all times during the term of this License. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Ford Motor Company License and Encroachment Agreement Page C-2