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HomeMy WebLinkAboutC-3846 - Memorandum of Understanding; Corona del Mar State Beach Replenishment Funds for sand replenishment projects in the Crystal Cove Littoral Subcell.(3YA0a -co L) • • • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT BYWY COUNCIL o, JUN 13 ??Ub ,,..17 C-38yb Agenda Item No. 9 June 13, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Harbor Resources Division / City Manager's Office Tom Rossmiller, Manager Harbor Resources, 949-644-3041 trossmiIIer( citv.newport-beach.ca.us Dave Kiff, Assistant City Manager, 949-644-3002 dkiffV citv.newport-beach.ca.us SUBJECT: Approval of a Memorandum of Understanding with the California Coastal Commission for Corona del Mar State Beach Replenishment Funds ISSUE: Should the City of Newport Beach accept funds from the California Coastal Commission for a sand replenishment project at Corona del Mar State Beach? RECOMMENDATION: Authorize the City Manager to execute a Memorandum of Understanding with the California Coastal Commission for sand replenishment projects in the Crystal Cove Littoral Subcell with a first priority project at the east end of Corona del Mar State Beach. DISCUSSION: The Irvine Company was required to participate in a fair share program for beach sand replenishment in the Crystal Cove Littoral Subcell prior to issuance of the Coastal Development Permit for the Irvine Coast development. The Irvine Company was also required to deposit $163,800 in an interest bearing account designated by the Executive Director of the Commission in -lieu of providing sand to replace the sand and beach area that could be lost due to the impact of the proposed project. The initial Irvine Company deposit has grown to approximately $185,000 in the interest bearing account. The Crystal Cove Littoral Subcell is defined as the section of beach between the east jetty of Newport Harbor and Abalone Point as depicted on Exhibit A. A Littoral Subcell • Sand. Replenishment at Corona del Mar Memorandum of Understanding June 13, 2006 Page 2 is a reach or compartment of the shoreline in which all sediment transport is bounded i.e., there is no alongshore sediment transport beyond its updrift and downdrift boundaries. Per the requirements established by the California Coastal Commission, the funds can only be used to establish long term monitoring of beach sand quantities, to prepare a program for beach sand replenishment, and to implement projects which provide sand to the beaches within the Crystal Cove Littoral Subcell and not to fund operations, maintenance, or planning studies. Harbor Resources staff proposes to perform a sand replenishment project on the east end of Corona del Mar State Beach within the Crystal Cove Littoral Cell and other undefined potential projects within the cell in cooperation with the California Department of Parks and Recreation. State Parks staff has indicated that they are in need of additional sand on the beach in front of the historical cottages in Crystal Cove. They may acquire additional funding that could allow for a cooperative project that could benefit from the economy of scale of a larger project. If State Parks does not participate in the project, the Crystal Cove site will still benefit from sand that will move in the littoral cell downcoast from Corona del Mar to the beach near the cottages over time. Harbor Resources also proposes to partner with the Channel Reef Homeowners Association to reduce the cost of dredging excellent quality sand that developed into a significant shoal within the Association's marina and out into the Newport Harbor Entrance Channel. The City would use this opportunistic source of sand for replenishment at Corona del Mar Beach and Ruby Avenue Beach on Balboa Island North Bayfront. The Coastal Commission funds could only be used for the Corona del Mar portion of the beach replenishment project. The exact design details of the project are yet to be developed. The requested City Council action is only related to the acceptance of the available funds from the Coastal Commission. The Coastal Commission must execute an MOU to transfer the funds for beach replenishment use within the Littoral Subcell by June 30, 2006 or the money will be transferred to the State General Fund. Therefore, timing of the execution of this MOU is critical; with permit acquisition, partnership agreements with Channel Reef and State Parks and project design to be presented to the Council for consideration at a later date. Environmental Review: The proposed project is categorically exempt Class 4 from CEQA per Guidelines Section 15304 (Minor Alterations to Land) Subsection (g) "Maintenance dredging where the spoil is deposited in a spoil area authorized by all applicable state and federal regulatory agencies." • • • • Sand Reple7tishment at Corona del Mar Memorandum of Understanding June 13, 2006 Page 3 Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: Acceptance of a transfer of funds from the California Coastal Commission Alternatives: Perform the necessary sand replenishment project with City Tidelands funds. Prepared by: Submitted by: Tom Rossmiller, Resources Manager Dav iff, Assistant City g Manager Attachments: Memorandum of Understanding Exhibit A - Littoral Cell Map MEMORANDUM OF UNDERSTANDING BETWEEN THE CALIFORNIA COASTAL COMMISSION AND CITY OF NEWPORT BEACH This Memorandum of Understanding ("MOU") is entered into by and between the California Coastal Commission ("Commission"), a public agency, created and existing under the authority of section 30300 of the California Public Resources Code, and the City of Newport Beach (City), a municipal corporation, through its duly elected, appointed, qualified or acting representatives. I. RECITALS A. WHEREAS, pursuant to section 30600(a) of the California Public Resources Code and sections 7-9-118 and 7-9-150 of the Orange County Zoning Code, the Irvine Community Development Company applied to the County of Orange for a coastal development permit in 1997, which application was assigned the number PA 97-0152; B. WHEREAS, on July 21, 1998, the Orange County Planning Commission conditionally approved coastal permit application PA 97-0152; C. WHEREAS, on August 12, 1999, Orange County Coastal Development Permit PA 97-0152 was appealed to the Commission, and the appeal was assigned the number A5- IRC-99-301; D. WHEREAS, on August 10, 2000, the Commission approved coastal development permit A5-1RC-99-301 for, among other things, development of a 980 acre area, including mass grading (48 million cubic yards), the construction of backbone infrastructure and a subdivision for future residential (up to 635 homes) and recreational development, subject to 20 special conditions; E. WHEREAS, Special Condition 6 of permit A5-IRC-99-301 required the Irvine Community Development Company to provide evidence of its consent to participate in a fair share program for beach sand replenishment in the Crystal Cove Littoral Subcell to mitigate for the fact that the proposed project would result in the loss of 160 cubic yards (208 tons) per year of coarse beach material that would otherwise be available to the littoral subcell; F. WHEREAS, the Crystal Cove Littoral Subcell is defined as the section of beach between the east jetty of Newport Harbor and Abalone Point as depicted on Exhibit A, which is attached hereto and incorporated herein by this reference; G. WHEREAS, Special Condition 6 of permit A5-IRC-99-301 also required the Irvine Community Development Company to deposit $163,800 in an interest bearing account designated by the Executive Director of the Commission (the "Executive Director") in -lieu of providing sand to replace the sand and beach area that would be lost due to the impact of the development approved in Coastal Development Permit A5-IRC-99-301; • i • Memorandum of Understanding Between the California Coastal Commission And City of Newport Beach Page -2 - H. WHEREAS, Special Condition 6 of permit A5-IRC-99-301 also required that the Commission or other entity designated by the Executive Director be named as trustee of this account, with all interest earned payable to the account to aid in the restoration of beaches within the Crystal Cove Littoral Subcell; I. WHEREAS, the Irvine Community Development Company paid $163,800 to the Executive Director, as trustee, to establish the Crystal Cove Sand Replenishment Fund ("the Fund"), pursuant to Special Condition 6 of permit A5-IRC-99-301, and the Fund is now held by the State Treasurer; J. WHEREAS, Special Condition 6 of permit A5-IRC-99-301 also required that the funds be used solely to establish long term monitoring of beach sand quantities, to prepare a program for beach sand replenishment, and to implement projects that provide sand to the beaches within the Crystal Cove littoral sub cell and not to fund operations, maintenance, or planning studies; K. WHEREAS, the City is interested in administering the Fund for the purpose of performing sand replenishment projects and to put the funds to the allowable uses, pursuant to Special Condition 6 of permit A5-IRC-99-301, in the Crystal Cove Littoral Subcell; L. WHEREAS, the City proposes to perform a sand replenishment project on the east end of Corona del Mar State Beach within the Crystal Cove Littoral Cell and other undefined potential projects within the cell, meeting the above criteria, in cooperation with the California Department of Parks and Recreation; M. WHEREAS, the Fund contains $184,883.84 as of April 30, 2006. II. DEFINITIONS Backshore means the upper part of the active beach above the normal reach of the tides and wave run-up (high water), but occasionally affected by high waves occurring during a spring high tide. Beach means that portion of land and seabed above Mean Lower Low Water (MLLW). Beach Sand Replenishment means acquiring sand from a source outside the Crystal Cove Littoral Subcell and placing it on the beach profile within the Crystal Cove Littoral Subcell. Beach Profile means a cross section through the beach perpendicular to the beach slope; it includes the backshore and seaward across the beach into the nearshore zone to closure depth. Closure Depth means the maximum depth of average seasonal cross -shore sand movement. Memorandum of Understanding Between the California Coastal Commission And City of Newport Beach Page -3 - Littoral Subcell means a reach or compartment of the shoreline in which all sediment transport is bounded i.e., there is no alongshore sediment transport beyond its updrift and downdrift boundaries. Nearshore means the seafloor along a coast between the closure depth and the Mean Lower Low Water (MLLW). III. TERMS AND CONDITIONS The Commission and City do hereby agree as follows: 1. Upon execution of this Memorandum of Understanding by both parties, the Commission shall effectuate a transfer from the State Treasurer to City of the funds, including all accrued interest, contained in the Crystal Cove Sand Replenishment Fund, for expenditure as provided herein. 2. City shall utilize the funds transferred pursuant to this agreement, including any later accrued interest, to provide sand replenishment within the Crystal Cove Littoral Subcell and/or monitoring of beach sand quantities. The location of the development activity for which the funds are expended shall be selected in accordance with the priorities set forth in paragraph 3, below. No funds shall be expended for beach replenishment projects until a Coastal Development Permit from the Coastal Commission or its successor agency is obtained and approval from the Executive Director is received pursuant to paragraph 4, herein. 3. City shall utilize the funds transferred pursuant to this agreement, including any later accrued interest, for the replenishment of sand on beaches within the Crystal Cove Subcell in accordance with the following priorities: a) City shall first build the elevation of the backshore beach at the eastern end of Corona del Mar State Beach (CDM) to approximately the same elevation as the western end of the CDM beach (+10.0 to +11.0 MLLW). b) Funds remaining shall be used to advance the eastern CDM beach seaward into the nearshore zone provided that the City can demonstrate no significant adverse impacts on the rocky intertidal habitat. c) City shall also coordinate with the California Parks and Recreation Department (CPRD) to develop, gain entitlements to enable it to perform, and implement other beach replenishment projects in the Crystal Cove Littoral Subcell. The first priority CPRD project is identified as the beach adjacent to the Muddy Creek outlet near the historic cottages. • • Memorandum of Understanding Between the Caltfonria Coastal Commission And City of Newport Beach Page -4 - 4. Prior to the use of any of the funds transferred pursuant to this agreement, including any later accrued interest, the City shall (1) obtain approval of a final plan as described in this paragraph and (2) obtain a Coastal Development Permit in order to implement the approved activities. The City shall submit to the Executive Director of the Commission a final plan containing the following information: proposed location of the beach replenishment activities listed in paragraph 3, volume of sand to be placed on the backshore and/or nearshore beach(es), evidence of approval from other Regulatory Agencies, status of coordination efforts with CPRD, a description of Best Management Practices (BMP's) to be employed to protect aquatic resources, time of year of proposed project implementation, proposed method of construction, and means by which protection of public access during construction will be accomplished. The final plan shall be submitted to the Executive Director within one year of the date on which the funds are transferred to City. The Executive Director shall approve or reject the final plan within 60 days of receipt, provided, however, that the Executive Director may extend this period if necessary for adequate review by notifying City in writing. The Executive Director shall reject the final plan if it does not demonstrate that City will comply with the terms of this MOU. The final plan shall be deemed approved if notification is not provided by the Executive Director within the 60 day period. Upon approval of the plan, City shall seek a Coastal Development Permits) as set forth in the approved plan to carry out the project(s). 5. City shall apply for a Coastal Development Pennit(s) for implementation of the development listed in the approved final plan. At a minimum, the Coastal Development Permit application(s) shall include the priority project noted in paragraph 3.a above and shall include conceptual plans for the beach replenishment projects. The Coastal Development Permit application shall be submitted to the Executive Director within six months of the date on which the Executive Director approves the final plan described in paragraph 4. 6. City shall acquire a Coastal Development Permit and all other Regulatory Agency permits necessary prior to implementing any projects for which this Fund is to be used. 7. Notwithstanding the City's use of funds derived from in lieu fees collected by the Coastal Commission, and the review of plans and/or programs by the Commission or its Executive Director pursuant to this MOU prior to the City's use of those funds, City hereby agrees to assume responsibility for and liability arising out of any actions, activities, construction and/or development that City undertakes with the assistance of the funds granted under this MOU. 8. During any period that funds transferred pursuant to this MOU are held by City, the funds shall be deposited in an interest bearing account. All of the transferred monies, along with accrued interest, and interest which may accrue while City hold the funds, shall be utilized solely for the purposes set forth in this MOU. Any reference to the funds or monies to be utilized pursuant to this MOU shall include such interest. Memorandum of Understanding Between the California Coastal Commission And City of Newport Beach Page -5 - 9. The terms of this MOU shall become effective upon execution by both parties and shall continue thereafter until the satisfactory completion of the obligations of the parties as described herein and exhaustion of the funds to be utilized pursuant to this MOU, unless altered by written and signed amendment of this MOU. The MOU may be altered, changed, or amended by mutual consent of the parties. Any changes or amendments must be in writing and signed by the parties before such change or amendment shall take effect. 10. Approval of the final plan described in paragraph 4 by the Executive Director, whether deemed or otherwise, is not a substitute for any coastal development permit or other approval needed by the City or any other person or entity to undertake the projects to be built with the transferred funds. 11. City shall use the transferred funds exclusively to finance projects described herein, as approved by the Executive Director pursuant to City's final plan described in paragraph 4. Administrative costs in implementing this MOU, computed in accordance with applicable State Administrative Manual sections, shall not exceed five percent (5%) of the total funds transferred to City under this MOU. City shall maintain accurate accounts of its expenditures in accordance with generally accepted accounting principles. 12. City shall submit a report to the Commission's Executive Director within (1) twenty- four months of the transfer of funds or (2) twelve months of approval of the final plan, whichever is later, as to the status of the use of the funds. If the approved projects have not been fully completed within that time and the transferred funds have not all been spent, City shall submit another status report to the Executive Director every twelve months, until such time as all of the funds are expended or five years from the date of transfer, whichever occurs first. If all of the transferred funds are not used by City within five years of the date of transfer, City shall submit a report to the Executive Director detailing why the projects have not been completed and the funds spent. The Commission's Executive Director may, at his or her discretion, grant to the City an extension of time of up to five additional years for use of the transferred funds upon a showing of good cause and with a continuing requirement for status reports every twelve months. The Executive Director shall review all submitted status reports to insure compliance with the terms of the special condition imposed by the Commission in granting the permit referred to in Paragraph D and with this MOU. If less than all of the transferred funds are used by City in completing the subject projects and/or all of the funds have not been expended within ten years of the date of transfer of the funds, the balance of the funds shall be returned by the City to the Commission or a Commission -approved alternate entity within 60 days of notification to City by the Executive Director. 13. Either party to this MOU may for good cause terminate this MOU by providing written notification 30 days prior to termination. In the event of termination, any and • • • • • • Memorandum of Understanding Between the California Coastal Commission And Cityof Newport Beach Page -6 - all remaining funds shall be transferred by City to the Commission or a Commission - approved alternate entity within 60 days of termination. Good cause shall include a determination by the Executive Director that City is not proceeding reasonably and expeditiously to complete any beach nourishment projects proposed as part of the final plan and approved pursuant to this MOU, or is not complying with the plan and budget approved pursuant to this MOU. In the event that the MOU is terminated, City agrees to take all reasonable measures to prevent further use of the funds. 14. The parties shall retain their contracting records for the entire period during which the funds are being utilized by City under this MOU and for a period of three (3) years thereafter for potential examination and audit by the Auditor General. 15. The MOU is executed in counterparts, each of which shall be considered a duplicate original. 16. Notices: Any demand upon or notice required or permitted to be given by one party to the other shall be in writing, shall be made in the following manner, and shall be effective (a) upon receipt if given by personal delivery, (b) on the date indicated on the receipt if given by certified or registered mail, return receipt requested, or (c) on the succeeding business day after mailing or deposit if given by Express Mail or by deposit with a private delivery service of general use (e.g. Federal Express), postage or fee paid, as appropriate, addressed to the parties in Section III, Paragraph 17. Notice of a change of address shall be given by written notice in the manner set forth in this section. 17. For the purposes of this MOU, all information, requests, or other business including any demand upon a party or notice pursuant hereto shall be coordinated through the following agency representatives: City of Newport Beach Homer Bludau, City Manager 3300 Newport Blvd. Newport Beach, CA 92658-8915 California Coastal Commission Peter Douglas, Executive Director 45 Fremont Street, Suite 2000 San Francisco, CA 94105-2219 with copy to: California Coastal Commission South Coast District Office P.O. Box 1450 200 Oceangate, 10th Floor Long Beach, CA 90802-4325 • Memorandum of Understanding Between the California Coastal Commission And City of Newport Beach Page -7 - 18. This MOU shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. 19. This MOU shall be governed by, and construed and enforced in accordance with, the laws of the State of California. STATE OF CALIFORNIA CALIFORNIA COASTAL COMMISSION By: PETER DOUGLAS Executive Director CITY OF NEWPORT BEACH By: Homer Bludau City Manager Date: Date: CCSRF,MOU.6-2-06 • • •