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Home My WebLink AboutC-9816-1 - Memorandum of Agreement Authorizing Disposal of Lower Bay Dredged Material Into the Port’s Pier G Slip Fill ProjectFIRST AMENDMENT TO MEMORANDUM OF AGREEMENT BY AND BETWEEN THE CITY OF LONG BEACH, ACTING BY AND THROUGH ITS BOARD OF HARBOR COMMISSIONERS, AND THE CITY OF NEWPORT BEACH THIS FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT ("First Amendment") is made and entered into, in duplicate, as of the date executed by the Chief Executive Officer of the Long Beach Harbor Department ("Chief Executive"), by and between the CITY OF LONG BEACH, a California municipal corporation and charter city, acting by and through its Board of Harbor Commissioners ("Port") pursuant to authority granted by said Board at its meeting of 3()yIt V3 2025; and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"). RECITALS: WHEREAS, the Port and City entered into a Memorandum of Understanding on February 4, 2025, (Harbor Department Document No. HD-25-042) ("MOX) whereby the City agreed, subject to terms and conditions set forth therein, to dredge and remove approximately 225,000 cubic yards of fill material from the Lower Newport Bay channels ("Newport Bay Material"), and place up to 225,000 cubic yards of Newport Bay Material at the site of the Port's Pier G South Slip project ("Project"). WHEREAS, the City has determined it is only able to dredge, remove and place up to approximately 185,000 cubic yards of Newport Bay Material; WHEREAS, the Port has the need for an additional quantity of fill material at the Project site; WHEREAS, the City is able to satisfy the Port's fill material needs and provide approximately an additional 40,000 cubic yards of fill material from the area known as the Balboa Yacht Basin located within the jurisdiction of the City ("Balboa Yacht Basin Material"); WHEREAS, the Balboa Yacht Basin Material has been determined to suit the Port's needs and otherwise meet the Port's fill material criteria; 1 25-05-06 POLB MOA Amendment No. 1 - BYB - Clean Final.docx A24-03370 FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT [04/25/2025] PIER G SLIP FILL — CITY OF NEWPORT BEACH (SNUbel) AGREEMENT NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter contained, the Port and City agree as follows: 1. The above recitals are true and correct. 2. The Port has obtained all necessary regulatory agency approvals for the Project to be used as a placement site for the Balboa Yacht Basin Material. 3. The Port shall allow the City, without anyfurther agreement, permit, or easement from the Port, to place up to approximately 40,000 cubic yards of Balboa Yacht Basin Material at the Project site. The Port shall not impose any fee or charge, orotherwise require any payment from the City, for placement of that material. The City's placement of dredge material shall be subject to all applicable conditions imposed by the aforementioned regulatory agencies. 4. In the event that the funding for the City's dredging of the Balboa Yacht Basin is insufficient, or if for any other reason, the City cannot deliver some or all of the 40,000 cubic yards of Balboa Yacht Basin Material to the Project, the Port will be solely responsible for making up any deficit with its own material, and the Port shall hold the City harmless from any costs incurred by the Port as a result, thereof. 5. The Port, in its sole discretion, may permit the import and placement of fill material from the City from other sources, provided that fill material suits the Port's needs and otherwise meets the Port's fill material criteria, and the Port has obtained all necessary regulatory agency approvals for the Project to be used as a placement site for the fill material. 6. The City agrees to indemnify, defend, and hold harmless the Port and its agents, officers and employees, from and against any and all liability and expenses, including defense costs and legal fees and claims arising from the City's placement of Balboa Yacht Basin Material and performance of its obligations under this First Amendment. The obligations assumed by the parties in this section shall survive the termination of this First Amendment, whether by expiration or otherwise. 7. Representations and Warranties. The City hereby represents and warrants that: 2 25-05-06 POLB MOA Amendment No. 1 - BYB - Clean Final.docx A24-03370 FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT [04/25/20251 PIER G SLIP FILL — CITY OF NEWPORT BEACH (SNL/bel) 7.1 The City has disclosed to the Port all material facts concerning the Balboa Yacht Basin Material and has not, to the knowledge of the City, failed to disclose any material fact that would cause any representation to be materially misleading. 7.2 The Balboa Yacht Basin Material has been designated by all applicable regulators as suitable for placement in a confined disposal facility. 7.3 The Balboa Yacht Basin Material does not constitute "hazardous waste" as defined by the United States Environmental Protection Agency or the California Department of Toxic Substances Control. 7.4 The Balboa Yacht Basin Material is not encumbered by restrictions, covenants, or any other requirements imposed by the State of California or any other governmental body, including any federal, state, or other political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to the government ("Governmental Authority"), including without limitation any restrictions, covenants or other requirements having the effect of establishing long-term liability, monitoring and/or maintenance obligations. 7.5 No litigation, investigation, proceeding, or order of or before any Governmental Authority is pending or, to the knowledge of the City, threatened by or against the City or anyone else with respect to the dredging of the Balboa Yacht Basin or Balboa Yacht Basin Material. 7.6 No claim or litigation of or by any person or non -governmental entity or organization is pending or, to the knowledge of the City, threatened by or against the City or anyone else with respect to the dredging of the Balboa Yacht Basin or the Balboa Yacht Basin Material. 7.7 The City has obtained and is familiar with the Piers G and J Terminal Development Environmental Impact Report, the U.S. Army Corps of Engineers Permit and the Waste Disposal Requirements, copies of which are on file with the Port's Director of Environmental Planning. 8. Except as expressly provided in this First Amendment, all of the terms and conditions of the MOU shall remain unchanged and in full force and effect. 3 25-05-06 POLS MOA Amendment No. 1 - BYB - Clean Final.docx A24-03370 FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT [04/25/2025] PIER G SLIP FILL— CITY OF NEWPORT BEACH (SNL/bel) [Signatures on following page] 2025 2025 2025 ate' , 2025 By: Name: Title: By Name Title By: Name: Title: In City Clerk __7�- 411,CZ Aaro ar City ttorne /turke Leung ity Manager CITY OF NEWPORT BEACH, a municipal corporation CITY OF LONG BEACH, a municipal corporation, acting by and through its Board of Harbor Commissioners \- Ma —do Cordero Chief Executive Officer Long Beach Harbor Department The foregoing document is hereby approved as to form. '2025 DAWN MCINTOSH, City Attorney By: Sudhir N. Lay, //puty 4 25-05-06 POLB MOA Amendment No. 1 - BYB - Clean Final.docx A24-03370 FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT [04/25/2025] PIER G SLIP FILL — CITY OF NEWPORT BEACH (SNL/bel) EXHIBIT A Balboa Yacht Basin Material Placement Site, Pier G South Slip Fill 25-05-06 POLB MOA Amendment No. 1 - BYB - Clean Final.docx A24-03370 FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT [04/25/20251 PIER G SLIP FILL— CITY OF NEWPORT BEACH (SNL/bel) MEMORANDUM OF AGREEMENT BY AND BETWEEN THE CITY OF LONG BEACH, ACTING BY AND THROUGH ITS BOARD OF HARBOR COMMISSIONERS AND THE CITY OF NEWPORT BEACH THIS MEMORANDUM OF AGREEMENT ("MOK) is made and entered into, in duplicate, as of the date executed by the Chief Executive Officer of the Long Beach Harbor Department ("Chief Executive"), by and between the CITY OF LONG BEACH, a California municipal corporation and charter city, acting by and through its Board of Harbor Commissioners ("Port") pursuant to authority granted by said Board at its meeting of JGtnvQrY V7 , 202 s; and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"). RECITALS: WHEREAS, the Port owns land and water areas within the City of Long Beach Harbor District known as Pier G; WHEREAS the Port is undertaking a project that will, among other things, reconfigure the Pier G South Slip ("the Project"), as depicted in Exhibit "A" attached hereto; WHEREAS, the Port anticipates it will satisfy most of its fill material needs from materials generated by the Project, but in the interest of advancing the regional policy of encouraging the beneficial reuse of dredge material, the Port will endeavor to accept dredge material from sources other than the Port by allowing that material to augment the Port's fill material needs; WHEREAS any import of fill material from outside the Project limits or the City of Long Beach Harbor District shall be subject to the Port's fill material criteria, as well as the logistical, technical, and environmental requirements of the Project, and must comply with all applicable laws, rules, regulations, requirements, licenses, permits, and orders, as may be amended from time to time; WHEREAS, the City is a grantee of state tidelands and desires to dredge and remove approximately 225,000 cubic yards of material from the Lower Newport Bay channels ("Newport Bay Material"); 1 01754706.DOCX A24-03370 MEMORANDUM OF AGREEMENT (12-05-20241 PIER G SLIP FILL— CITY OF NEWPORT BEACH [SNUarh] WHEREAS, while the City is the local, non-federal sponsor for the Lower Newport Bay Maintenance Dredging Project and holds the responsibility for providing a disposal location for the dredged material, the dredging contract will be managed and executed by the U.S. Army Corps of Engineers, Los Angeles District, through the authority granted in the Rivers and Harbors Act of 1945 authorizing the Newport Bay Harbor federal project; WHEREAS, some of the Newport Bay Material has been determined by regulatory agencies to be unsuitable for unconfined open ocean disposal; WHEREAS, the Project is available for placement of unsuitable material, and the Port and City desire to use the Project site for the placement of the Newport Bay Material; NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter contained, the Port and City agree as follows: 1. The above recitals are true and correct. 2. The Port has obtained all necessary regulatory agency approvals for the Project to be used as a placement site for the Newport Bay Material. 3. The Port shall allow the City, without anyfurther agreement, permit, or easement from the Port, to place up to 225,000 cubic yards of Newport Bay Material at the Project site. The Port shall not impose any fee or charge, or otherwise require any payment from the City, for placement of that material. The City's placement of dredge material shall be subject to all applicable conditions imposed by the aforementioned regulatory agencies. 4. In the event that the funding for the City's dredging project is insufficient, or if for any other reason, the City cannot deliver some or all of the 225,000 cubic yards of Newport Bay Material to the Project, the Port will be solely responsible for making up any deficit with its own material, and the Port shall hold the City harmless from any costs incurred by the Port as a result, thereof. 5. The City recognizes that time is of the essence in the Project schedule and agrees to place the Newport Bay Material at the Project at the locations and within the time frames specified by the Port. It is agreed by the City that placement of the Newport Bay Material shall be completed before the elevation in the Project fill reaches -10 feet Mean Lower Low Water. If the City cannot deliver the Newport Bay Material to the Project within the time frame specified by the Port, or if the City shall seek other disposal options, this Agreement shall be automatically terminated, and the City shall hold the Port harmless with respect to any costs incurred by the City as a result of such termination. 2 01754706.DOCX A24-03370 MEMORANDUM OF AGREEMENT [12-05-2024] PIER G SLIP FILL- CITY OF NEWPORT BEACH [SNU@rh] 6. The City agrees to indemnify, defend and hold harmless the Port and its agents, officers and employees, from and against any and all liability, expense, including defense costs and legal fees and claims arising from the City's placement of Newport Bay Material and performance of its obligations under this Agreement. The obligations assumed by the parties in this section shall survive the termination of this Agreement, whether by expiration or otherwise. 7. Any notice, demand, request or formal communication required or authorized by this Agreement to be given or made to or upon either of the parties to this Agreement shall be deemed properly given or made if delivered, by registered mail postage prepaid, or email to each of the following: '.t Port of Long Beach Attn: Deepen Upadhyay, Senior Program Manager P.O. Box 570 Long Beach, CA 90801 Deepen. Upadhyay(d)polb.com City of Newport Beach Public Works Department Attn: Chris Miller 100 Civic Center Drive Newport Beach, CA 92660 cmiller@newportbeachca.gov 8. This Agreement shall terminate upon the occurrence of either: (1) the successful completion of the proposed construction project using the Project as the placement site for the Newport Bay Material; or (2) the commencement of the placement of the Newport Bay Material at a site other than the Project. The foregoing notwithstanding, either party hereto may terminate this Agreement for a material breach of this Agreement by giving written notice to the other party ninety (90) days prior to the effective date of such termination. [Signatures on following page] 3 01754706.DOCX A24-03370 MEMORANDUM OF AGREEMENT [12-05-20241 PIER G SLIP FILL — CITY OF NEWPORT BEACH (SNUarh] u g, I2D24- By: Name: Title: 2024 By: Name: Title: �anvaYy 024S By: Name: Title: 2021 � By: CITY OF NEWPORT BEACH, a municipal corporation CITY OF LONG BEACH, a municipal corporation, acting by and through its Board of Harbor Commissioners rio ro Chief Executive Officer Long Beach Harbor Department The foregoing document is hereby approved as to form. DAWN MCINTOSH, City Attorney Sudhir N: L" D ut � Y 4 0 754705.DOCX A24-03370 MEMORANDUM OF AGREEMENT (12-05-20241 PIER G SLIP FILL -CITY OF NEWPORT BEACH (SNU@rhj rr. - W Ana h''eim St • "- i "Long'Beach . $ rriopt 1 *9, rY. `• ' . n �` hofelin , an. r log Queensway Bay �;. �59r.k ±� West Basin 4 F Outer Harbor Narn Long Beach Outer Harbor _ r 00 Basin :41 % 3 Southeast Basin Yp E J