HomeMy WebLinkAboutC-8268-2 - Agreement for Stage 13 Periodic Nourishment of the Orange County Beach Erosion Control ProjectDocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND THE STATE OF CALIFORNIA
DEPARTMENT OF PARKS AND RECREATION,
DIVISION OF BOATING AND WATERWAYS
FOR STAGE 13 PERIODIC NOURISHMENT
OF THE
ORANGE COUNTY BEACH EROSION CONTROL PROJECT
L4Ift- /ice n l
This agreement ("Local Agreement") is made and entered into the day of fft*WAQA , 21 .
by and between the CITY OF NEWPOR".f BEACH, a municipal corporation of the State of California,
hereinafter called "CITY" and the CALIFORNIA DEPARTMENT OF PARKS AND RECREATION,
DIVISION OF BOATING AND WATERWAYS. hereinafter called "DEPARTMENT."
I. RECITALS
I . Congress has, by the enactment of Public Law 874, 87"' Congress, specifically adopted and
authorized a beach erosion control project from Anaheim Bay Harbor to Newport Bay in Orange County,.
California. providing for federal participation amounting to 67 percent of the first costs and costs of
periodic nourishment and maintenance; in accordance with the plans and sulJect to the conditions
recommended by Chief of Engineers in House Document 602, 87th Congress.
?. DEPARTMENT is authorized under Harbors and Navigation Code Section 67.2 to expend State
funds appropriated for the Orange County Beach Erosion Control Project.
3. For projects that receive State funding from the Public Beach Restoration Fund, DEPARTMENT
is required under Harbors and Navigation Code Section 69.6(a)(5) to collect no less than fifteen (15)
percent of the nonfederal project Costs for restoration, nourishment, or enhancement of nonstate public
beaches From projects' local sponsors, with local cast shares to be provided as funds and/or in -kind
services.
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
4. The project funded by this Local Agreement consists of up to approximately 1,750,000 cubic
yards of sand fill at Surfside-Sunset Beach and 100,000 cubic yards of sand fill in the City of Newport
Beach (such placements shall hereafter be referred to as "PROJECT") substantially in accordance with
the plan set forth in House Document 602, 87th Congress. The PROJECT area for Stage 13 is the coastal
shoreline between Surfside-Sunset Beach and Newport Pier (70 Newport Pier, Newport Beach), inclusive.
II. GENERAL TERMS
1. Before DEPARTMENT expends any State funds on the PROJECT, DEPARTMENT shall
require all local agencies that control a portion of the coastal shoreline within the PROJECT area to send
funds to DEPARTMENT, in amounts proportional to the amount of the PROJECT area they operate, as
measured in linear feet. DEPARTMENT shall apply this cost sharing methodology to four (4) local
sponsors: City of Newport Beach (CITY), which is a signatory to this agreement; City of Huntington
Beach; County of Orange; and Surfside Colony Storm Water Protection District. Cost contribution
percentages for each non-federal partner are attached to this agreement as Exhibit A and are based on the
proportional share of linear footage of the PROJECT area that each non-federal partner operates. CITY
has reviewed Exhibit A and accepts the cost sharing methodology stated therein for PROJECT
construction.
2. As provided for in Exhibit A, CITY will pay the sum of two hundred two thousand three hundred
ninety-seven dollars ($202,397) to DEPARTMENT within thirty (30) days of the date of final execution
of this Local Agreement, as CITY's share of the financing costs of PROJECT.
3. DEPARTMENT intends to enter into an agreement with the United States Army Corps of
Engineers (Government) for undertaking PROJECT and, if DEPARTMENT enters such an agreement,
will make available to the Government the sum of approximately $7,632,900 in advance of the
occurrence of actual PROJECT costs. The above amount consists of approximately $6,954,297 from
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
DEPARTMENT and a total of $678,603 from all four local partners including CITY. DEPARTMENT
shall only make such advance if it receives a total of $678,603 from all four local partners including
CITY.
4. The Government requires DEPARTMENT to execute a Project Partnership Agreement before
any PROJECT work begins. The Project Partnership Agreement requires DEPARTMENT to make
certain guarantees which in some cases can only be accomplished through cooperation between
DEPARTMENT and local partners. A draft of the Project Partnership Agreement is attached to this Local
Agreement as Exhibit B. CITY agrees to support and assist DEPARTMENT in fulfilling all aspects of
the Project Partnership Agreement where the DEPARTMENT determines such support and assistance is
necessary. CITY shall cooperate with amending this Local Agreement to include the fully executed
Project Partnership Agreement in substantially the same form and substance as Exhibit B within one
hundred twenty (120) days following execution of the Project Partnership Agreement.
5. If DEPARTMENT and the Government determine they will not execute the Project Partnership
Agreement, this Local Agreement shall be of no further force and effect, and any funds provided by CITY
to DEPARTMENT for PROJECT construction shall be returned by DEPARTMENT within ninety (90)
days. If any local sponsor declines to enter an agreement with DEPARTMENT for PROJECT
construction, the DEPARTMENT will not execute the Project Partnership Agreement, and this Local
Agreement shall be of no further force and effect. DEPARTMENT shall notify CITY in writing that
DEPARTMENT was unable to enter into all necessary agreements with other local sponsors and that this
Local Agreement shall be of no further force and effect.
6. CITY agrees to indemnify, defend and hold harmless DEPARTMENT and its contractors,
including but not limited to the Government, from all claims and losses arising from design, construction,
operation, maintenance, repair, rehabilitation, and replacement of Stage 13, except for damages due to the
sole fault or sole negligence of DEPARTMENT or its contractors.
DocuSign Envelope ID: ECBD8600-223C-45B7-BFAD-07548F575FFA
7. DEPARTMENT will make best efforts to obtain within one hundred eighty (180) days of
completion and acceptance of PROJECT a full accounting from the Government, and shall diligently
pursue a refund of any unexpended monies, and upon receipt thereof, shall divide proportionately any
such monies between DEPARTMENT and CITY in a ratio equal to the respective contributions of the
parties as described in Exhibit A.
8. Construction of PROJECT is anticipated to be completed by February 1, 2025. The project term
(PROJECT TERM) shall last until the date Stage 14 construction begins or until ten (10) years after the
date of acceptance of PROJECT completion by DEPARTMENT, whichever occurs first.
9. In the event construction of PROJECT is either formally cancelled before completion by the
Government or is not completed by February 1, 2029, DEPARTMENT, or its Successor in interest, shall
diligently pursue a refund of any unexpended monies, and shall upon receipt thereof, divide
proportionately any such monies between DEPARTMENT and CITY in a ratio equal to the respective
contributions of the parties as described in Exhibit A.
10. Provisions of the Project Partnership Agreement requiring ongoing monitoring and maintenance
of the PROJECT area will continue beyond the completion of construction, with no defined end date, as
required by the Government. DEPARTMENT will supply the Stage 13 Operation, Maintenance, Repair,
Replacement, and Rehabilitation Manual developed by the Government to CITY within ninety (90) days
of DEPARTMENT'S receipt thereof, which will occur after completion of construction. DEPARTMENT
and CITY shall coordinate and communicate about post -construction maintenance requirements and
activities in good faith. CITY shall indemnify DEPARTMENT against all claims arising from such
monitoring and maintenance duties that fall within CITY's jurisdiction, except in case of sole fault or sole
negligence of the DEPARTMENT. Each party shall undertake their respective post -construction
monitoring and maintenance responsibilities at its own expense.
11. Provisions of the Project Partnership Agreement require the Non -Federal Sponsor to assume
responsibility for activities specified therein related to any hazardous, toxic, and radioactive wastes
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
(HTRW) found within the PROJECT area. HTRW includes any material listed as a "hazardous
substance" regulated under the federal Comprehensive Environmental Response, Compensation, and
Liability Act. At the time of execution of this Local Agreement, DEPARTMENT does not know of any
HTRW on property operated by CITY within the PROJECT area. CITY agrees to fulfill all terms of the
Project Partnership Agreement related to HTRW on property operated by the CITY on behalf of
DEPARTMENT, at any time during the PROJECT TERM, at CITY's expense.
12. Provisions of the Project Partnership Agreement require the Non -Federal Sponsor to provide, at
no cost to the Government, any real property interests, relocations, and placement area improvements
determined by the Government to be required for construction, operation, and maintenance of the Project.
DEPARTMENT lacks legal authority to acquire real estate owned by CITY. With respect to that portion
of the PROJECT area which CITY owns, operates, or has legal authority to obtain, CITY agrees to
comply with all requests for such real estate interests that originate from the Government, at any time
during the PROJECT TERM, at CITY's expense.
13. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "At least annually and after storm events, the Non -Federal Sponsor, at no cost to the
Government, shall monitor and perform surveillance of the Project to determine losses of material and
provide results of such surveillance to the Government." With respect to the portion of the PROJECT area
that CITY operates, CITY agrees to fulfill this provision on behalf of DEPARTMENT throughout the
PROJECT TERM, at CITY's expense.
14. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "Not less than once each year, the Non -Federal Sponsor shall inform affected interests of the
extent of risk reduction afforded by the Authorized Project." With respect to the portion of the PROJECT
area that CITY operates, CITY agrees to fulfill this provision on behalf of DEPARTMENT throughout
the PROJECT TERM, at CITY's expense.
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
15. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "The Non -Federal Sponsor shall ensure participation in and compliance with applicable
Federal floodplain management and flood insurance programs. The Non -Federal Sponsor may execute
agreements with other non -Federal entities to ensure such participation and compliance." With respect to
the portion of the PROJECT area that CITY operates, CITY agrees to fulfill this provision on behalf of
DEPARTMENT throughout the PROJECT TERM, at CITY's expense.
16. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "The Non -Federal Sponsor shall ensure publication of floodplain information in the area
concerned and shall provide this information to zoning and other regulatory agencies for their use in
adopting regulations, or taking other actions, to prevent unwise future development and to ensure
compatibility with the Authorized Project, and provides that the Non -Federal Sponsor may execute
agreements with other non -Federal entities to ensure such publication and provision." With respect to the
portion of the PROJECT area that CITY operates, CITY agrees to fulfill this provision on behalf of
DEPARTMENT throughout the PROJECT TERM, at CITY's expense.
17. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "The Non -Federal Sponsor shall prevent obstructions or encroachments on the Authorized
Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments)
that might reduce the level of coastal storm risk reduction the Authorized Project affords, hinder operation
and maintenance of the Authorized Project, or interfere with the Authorized Project's proper function."
With respect to the portion of the PROJECT area that CITY operates, CITY agrees to fulfill this provision
on behalf of DEPARTMENT throughout the PROJECT TERM, at CITY's expense.
18. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "For shores, other than Federal shores, protected pursuant to this Agreement using Federal
funds, the Non -Federal Sponsor shall ensure the public use of, and access to, such shores by all on equal
terms in a manner compatible with the authorized purpose of the Project." With respect to the portion of
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
the PROJECT area that CITY operates, CITY agrees to fulfill this provision on behalf of DEPARTMENT
throughout the PROJECT TERM, at CITY's expense.
19. The Project Partnership Agreement shall include the following provision or a substantially similar
provision: "The Non -Federal Sponsor shall provide and maintain necessary access roads, parking areas,
and other associated public use facilities, open and available to all on equal terms, as described in the
Decision Document." With respect to the portion of the PROJECT area that CITY operates, CITY agrees
to fulfill this provision on behalf of DEPARTMENT throughout the Project Term, at CITY's expense.
This requirement shall not compel CITY to provide access in a manner inconsistent with past final
published court rulings and decisions of the California Coastal Commission.
20. Any notice or other written instrument required or permitted by this Local Agreement to be given
by one party to the other shall identify the PROJECT by name (e.g., "Stage 13, Orange County Beach
Erosion Control Project") and shall be deemed received when either personally served or forty-eight (48)
hours after being deposited in the U.S. Mail, postage prepaid, registered or certified and addressed as
follows:
If to CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: Director of Public Works
If to DEPARTMENT: California State Parks, Division of Boating and Waterways
P.O. Box 942896, Grants & Loans, 12th Floor
Sacramento, CA 94296
Attn: Project Manager, Public Beach Restoration Program
21. This agreement is not valid until approved by the California Department of General Services.
DocuSign Envelope ID: EC8D8600-223C-45B7-BFAD-07548F575FFA
IN WITNESS WIIEREOF, the parties hereto have executed this agreement, on the date opposite their
respective signatures:
Date: *3 - [ - Z O Z.
ATTEST:
l.eilant I.13roAvn 41.101
City Clerk
APPROVED AS TO CORM:
CITY ATTORNEY'S OFFICE
Bv:
iron
City Attorney
CITY OF NEWPORT BEACI I,
la
crFoa%
CALIFORNIA DEPARTML NT OF PARKS
AND RECREATION. DIVISION OF BOATING
AND WATERWAYS
r-�Docu5igned by:
Datc 4/4/2023 (31AW U.p, t,VU�Adn.
'--3E45AgkWj(W4Qh. Fernandez
Deputy Director