HomeMy WebLinkAboutC-8101-1 - Temporary Right of Entry Permit-Semeniuk SloughTEMPORARY RIGHT OF ENTRY PERMIT
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, Newport Banning Ranch LLC, for itself and as the authorized representative' for
Aera Energy LLC, and Cherokee Newport Beach, LLC (collectively, "NBR"), and Horizontal
Development LLC, a California limited liability company (individually, a "Party" or, collectively,
the "Parties"), do hereby grant and convey unto the City of Newport Beach, a California
Municipal Corporation and charter city ("Permittee") the following temporary right of entry
permit ("Permit") upon that certain real property ("Property") owned and/or operated by Parties
and depicted on Exhibit "A" attached hereto and made a part hereof, which comprise of portions of
land identified on the tax rolls as Assessor Parcel Nos. 114-170-77 and 114-170-79 in Orange
County, California.
1. A non-exclusive temporary right of entry for ingress, egress, and access in, over, across and
through Property to provide access to the Semeniuk Slough, which adjoins Property, for the purpose
of conducting dredging and associated operations in the Semeniuk Slough. Permittee's operations on
the Property shall be limited to the area depicted on Exhibit "A" attached hereto, and shall be
restricted to the activities detailed in the work plan attached as Exhibit "B" (the "Work Plan"). All
operations under this Permit shall be conducted in strict compliance with the Work Plan and with all
regulations, ordinances, permit conditions and other specifications applicable thereto at Permittee's
sole cost and risk. This Permit shall commence on August 1, 2016 and continue in effect until (a)
April 1, 2017, or (b) the Permit is terminated earlier as herein provided, at which time it shall
immediately and automatically terminate.
2. At least 48 hours prior to entering the Property to commence Work Plan activities,
Permittee shall notify Jeff Maisch ("Parties' Representative"), by phone at (714) 924-1004 and by
e-mail at irmaisch@aeraenergy.com.
3. During the term of this Permit, Permittee or its designated contractor shall obtain and
maintain comprehensive public liability and property damage insurance covering Permittee's use
and occupancy of the Property and with the following minimum limits:
(a) Workers' Compensation Insurance - complying with all applicable statutory
requirements and providing for a waiver of subrogation in favor of Aera Energy LLC,
Cherokee Newport Beach, LLC, and Horizontal Development LLC; and Employers'
Liability Insurance - minimum limit of $2,000,000 each occurrence; both coverages to
apply to liability as applicable under any state or federal statute or through any common
law process;
(b) Business Automobile Liability Insurance (including owned, non -owned and hired
vehicles) - combined bodily/personal injury, death and property damage - minimum limit
of $2,000,000 each occurrence;
'Newport Banning Ranch LLC is the Manager of the surface rights of the Newport Banning Ranch Property, authorized
by the Owners — Cherokee Newport Beach, LLC and Aera Energy LLC - to enter into this agreement.
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(c) Commercial General Liability Insurance - combined bodily/personal injury, death and
property damage - minimum limit of $5,000,000 each occurrence;
However, the extent of Permittee's liability is not limited to those minimum limits herein
above specified.
All policies of insurance obtained pursuant to this paragraph shall be written with companies
satisfactory to Parties. Permittee shall furnish evidence of the above insurances to Parties prior to
occupancy. As respects the insurance required herein, Permittee has the unilateral right to elect to
(i) self -insure, (ii) to provide coverage through a joint powers insurance authority ("JPIA") which is
duly formed under the laws of the State of California, or (iii) utilize a combination of self-insurance
and JPIA coverage. Prior to entering onto the Property, Permittee shall notify Parties of how
insurance coverage will be provided and shall provide evidence of insurance conforming to the
requirements of this Permit. All policies of insurance obtained shall name Parties as additionally
insured and shall provide that the insurance therein is primary and not in excess of or contributory
with Parties' other insurance; shall be issued by a company authorized to do business in the State of
California; shall cover all claims that Permittee may have against Parties; and shall contain a
provision providing that such insurance shall not be canceled without thirty (30) days prior written
notice to Parties. Permittee shall furnish Parties, upon request at any time, certificates by its insurers
that insurance complying with this paragraph is in effect.
4. To the maximum extent permitted by law, Permittee shall at all times indemnify, defend
and hold harmless Parties, their affiliates, joint venture partners, parent and subsidiary companies,
tenants, and the respective employees, agents, directors and officers of each of them (collectively,
the "Indemnified Parties"), from and against any and all claims, demands, fines, penalties, damage
to property, injury or death to persons, causes of action, liabilities, cost and expense of every nature,
including reasonable attorneys' fees, which any Indemnified Party may sustain or incur arising out
of the presence of the Permittee's employees, agents and contractors upon Owners' Property, or any
of their respective acts, operations or omissions thereon, excepting only claims against an
Indemnified Party arising from the sole negligence or willful misconduct of such Indemnified Party.
5. Permittee shall, at its sole cost and expense, timely secure all permits, licenses and
variances required by public authorities and agencies in connection with the exercise of its rights
and the performance of its obligations hereunder. Permittee shall at all times maintain fencing and
security to protect the Property and Owner's adjacent property from unauthorized access. Permittee
shall promptly repair any damage to the Property or the appurtenances thereto, and restore the
Property as nearly as feasible to the condition it was in prior to the commencement of Permittee's
operations. Permittee shall remove all personal property that may have been brought onto the
Property under this Permit at Permittee's sole cost within seven (7) days after termination of this
Permit. The obligations of this paragraph shall survive the termination of this Permit.
6. As part of the consideration for Parties granting this Permit, Permittee shall provide
Parties with copies of any reports or studies that may be generated concerning the Property. A draft
of each such report, together with associated documents and supporting information, shall be
furnished to Parties within two (2) business days following receipt by Permittee. Parties shall have
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at least ten (10) business days to review such draft report prior to finalization or submission to any
Governmental Authority. During such 10 -day review period, Permittee and its contractor shall use
commercially reasonable efforts to meet & confer with Parties, and incorporate any comments
Parties may reasonably request regarding the contents of such draft reports. Permittee shall not
submit any written materials to the Governmental Authorities regarding the Property without the
consent of Parties. Additionally, Permittee shall provide Parties with (a) at least ten (10) days prior
notice of all public hearings before, or public meetings with, any Governmental Authority regarding
the Property or the activities proposed or conducted thereon, and (b) as much prior notice as is
reasonably possible for all non-public meetings with any Governmental Authority regarding the
Property. Parties may, in their sole and absolute discretion, appear at any such public or non-public
hearings or meetings and participate therein.
7. Permittee shall exercise commercially reasonable efforts to minimize interference with
Owners' use and enjoyment of the Property and to promptly repair, at its sole cost, risk, and expense,
any damage arising from the exercise of the rights herein granted.
8. Either Parties or Permittee may, at its sole and absolute discretion, terminate this Permit
by giving seven (7) days written notice of such termination to the other party. Parties reserve the
right at any time and from time to time to observe Permittee's operations on the Property and to
make such additional requirements as Parties deems necessary to protect Owner's property.
Permittee agrees to comply with any such request and to ensure the observance of such requirements
by all of Permittee's employees, agents, and other persons permitted by Permittee to be on the
Property. In the event that Permittee fails to comply with any request of Parties, Parties may
immediately halt Permittee's operation authorized under this Permit, prohibit Permittee from
entering the Property and, at its sole option, may immediately terminate this Permit.
9. All notices or other communications required or permitted hereunder shall be in writing
and shall be personally delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or overnight courier, or electronic transmission as defined below.
Communications shall be deemed received upon the earlier of (i) the date of delivery to the address
of the person to receive such notice, if delivered personally or by messenger or overnight courier;
(ii) three (3) business days after the date of posting by the United States Post Office if by mail; or
(iii) when sent if given by telecopy or e-mail (collectively, "electronic transmission"). Any notice,
request, demand, direction, or other communication sent by electronic transmission must be
confirmed within forty-eight (48) hours by letter mailed or delivered, provided however that this
requirement shall be waived if the recipient acknowledges receipt of the electronic transmission in
writing, for example by return e-mail. Notices or other communications shall be addressed as
follows:
If to Parties:
Aera Energy LLC
Attn: Jeff Maisch
3030 Saturn St. Ste. 101
Brea, CA 92821
Phone: 714.924-1004
e-mail: JRMaisch(&,aeraenergy com
If to Permittee:
City of Newport Beach
Attn: Robert Stein
100 Civic Center Drive
Newport Beach, CA 92660
Phone: (949) 644-3322
e-mail: RStein@Newportbeachca.eov
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If to Parties:
Horizontal Development LLC
Attn: Tom McCloskey
P.O. Box 1547
Newport Beach, CA 92659
Phone: (949) 63 1 -1100
e-mail: TMccloskey(c,pacbell.net
Additional Copy to:
Newport Banning Ranch LLC
Attn: Mike Mohler
1300 Quail Street, Suite 100
Newport Beach, CA 92660
Phone: (949) 833-0222
mohler(i_0rooks-street. corn
10. The benefits and burdens of the rights and covenants set forth herein shall be binding
upon the successors and assigns of the parties hereto, provided that the rights herein granted shall be
not be assigned by Permittee without the prior written consent of the Parties. The execution of this
Permit shall not be construed to create an obligation by either Parties or Permittee to enter into
additional agreements or to proceed with the installation of any permanent facilities.
11. The rights granted herein are subject to all easements, rights and encumbrances of
record prior to or concurrent with the date hereof.
_ IN WITNESS WHEREOF, this instrument is duly executed this 1sT day of
jaz V 2016.
PARTIES:
Newport Banning Ranch LLC
a California limited liability company,
Individually and as authorized representative
for Aera Energy LLC and Cherokee Newport
Beach, �LJ�LC
By: lJ•-1_
G.L Basye
Its: Manager
Horizontal Development LLC,
a California limited liability company
By:
Its: _
PERMITTEE:
City of Newport Beach
By: /
T�G!Yl�,•1
Its�irlG7OJ 6��V t (w�l�Pr
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date' (101zoI tlp
BVQ
Aaron C. Harp, City Attorney
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EXHIBIT "A"
Depiction of the Property
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EXHIBIT "B"
Work Plan
The cooperative project, led by the City of Newport Beach with support by Caltrans, is being
performed to restore flood conveyance capacity in Semeniuk Slough and the State-owned storm
drain box culvert that drains into the south end of the slough. Approximately 6,500 cubic yards of
accumulated sediment from the City of Newport Beach owned section of Semeniuk Slough will be
removed along with 1,700 cubic yards from the State-owned storm drain box -culvert and drainage
ditch that drains into the south end of the slough. The following work shall be performed.
B1. The excavation work shall be performed "in -the -dry" by dewatering the channel.
Approximately 120 feet of steel sheet pile will be driven across the channel at the north end
near the same location used by the U.S. Army Corps of Engineers during their 2013 Lower
Santa Ana Marsh Dredging project. The cofferdam will isolate the work area from the
downstream channel and allow the slough's water to be pumped out to expose the bottom.
The work area shall be dewatered using large submersible pumps. Discharge shall be within
a silt curtain enclosure adjacent to the cofferdam. The silt curtain will intercept and contain
sediment so any accumulation can be removed at the end of the project. The cofferdam will
be completely removed at the conclusion of all excavation work.
B2. The Semeniuk Slough sediment will be removed using conventional land based equipment
consisting of wide track excavators, blades and front end loaders.
B3 The sediment within the Caltrans box culvert will be removed by the State using a small,
low height remotely controlled excavator that is specially designed for such work. The
machine will temporarily stockpile material within the dewatered channel bottom near the
culvert entrance. The operation will require construction of a temporary 800 -foot long gravel
roadway north of the culvert to allow the City's contractor to use an off-highway truck to
haul the stockpiled sediment to the highway truck loading area. Approximately 1,000 tons of
gravel will be imported and placed in a 15 -foot wide, 18 -inch thick roadbed section. All
gravel will be completely removed from the channel bed and hauled away after the culvert
cleaning operation is complete.
B4 The site access plan for the project is shown on the attached Site Access drawing. All
equipment and haul truck ingress and egress shall be via the Pacific Coast Highway entry
gate. The Contractor shall post a flagman at the gate at all times when work is being
performed to prevent unauthorized access to the property.
B5. Non-native vegetation will be removed along the east bank of Semeniuk Slough at five
locations indicated on the attached Site Access drawing to provide equipment access to the
excavation areas. The access points will be selected where non-native plants and vegetation
currently exist. The disturbed bank areas used for access will be replanted at the end of the
project with a native plant pallet.
B6. Excavated sediment will be directly loaded into semi -end dump trucks using excavators
and/or front end loaders at the access points. The material will then be immediately hauled
away to an offsite disposal site. Straw wattles or similar means will be used to seal truck tail
gates and prevent leakage over the haul route. Approximately 660 truck trips will be required
to haul away the sediment.
B7. Equipment and haul truck traffic access shall be confined to area defined by the Pacific
Coast Highway entry gate, gravel access road, and truck turnaround area as shown on the
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attached Site Access drawing.
B8. Excavation equipment will initially mobilize via the gravel access road adjacent to the east
bank of the Slough. Thereafter the equipment will be confined to operating directly within
the dewatered channel.
B9. Haul trucks will turnaround at the north end of the access road within the designated area
shown on the Site Access drawing. The Contractor shall temporarily modify the double -
swing interior gate and fence at the north end of the site as required to allow semi -end dump
trucks to travel to the truck turnaround area. At the end of the project, the gate and fence
shall be restored to their existing condition to the satisfaction of the West Newport Oil
Company.
1310. The Contractor shall cooperate and coordinate with West Newport Oil Company's
designated field representative at all times to allow immediate access and passage of oil field
equipment, traffic, and personnel at any time during work hours. The Contractor shall not
block the access road at any time without the permission of the West Newport Oil Company.
Contractor acknowledges that West Newport Oil Company's operations on the Property,
including the access road, may from time to time temporarily block the access road. Except
where required by an emergency situation, West Newport Oil Company will notify
Contractor's field representative of scheduled operations that block the access road. In the
event of a conflict between Contract's use of the access road and West Newport Oil
Company's use of the access road, West Newport Oil Company's use of the access road shall
have priority over Contractor's use of the access road.
1311. The Contractor shall secure the site and all entry and interior gates within the work area at
the end of each work day to the satisfaction of the West Newport Oil Company.
B12. The Contractor shall protect the existing earth spill containment berms adjacent to the access
road in place and immediately repair any sections damaged by his operations.
B13. The duration of the project is estimated to be 4 to 6 months. The first five weeks will consist
of construction of the temporary short access roadways, temporary sheet pile cofferdam and
dewatering of the excavation area. Excavation of the slough and hauling away material will
take approximately 2 months. Removal of sediment from the Caltrans culvert will be
completed within about 1 month. The work will be concurrent with slough excavation.
Removal of the temporary roadway accesses and cofferdam will occur at the end of the job
and take about 3 weeks to complete. Restoration of the temporary access roadway areas will
take approximately two weeks to complete.
B14. The estimated construction start date is August 2016. All work is estimated to be complete
by January 2017.
B15. At the completion of the project, the Contractor shall amend the gravel road with like
material as required and finish grade the road surface to repair any ruts, depressions, or other
deteriorated areas in the roadbed caused by the construction equipment and haul truck
traffic.
B16. At least 10 days prior to revegetating any disturbed areas as may be required by the permit
conditions, the Contractor shall submit the procedure and plant palette to NBR for NBR's
written approval.
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