HomeMy WebLinkAboutC-3943 - MOU (for 919 Bayside and the Rhine Wharf Guest Dock)c- qq
RECEIVED
South Coast Region
JAN 1 6 2008
MEMORANDUM OF UNDERSTANDING BETWEEN THE CALIFORNIA
COASTAL COMMISSION AND CITY OF NEWPORT BEAMFORNIA
COASTAL COMMISSION
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. The Commission and City are hereinafter referred to collectively as the Parties.
RECITALS
A. WHEREAS, on April 12, 2004, pursuant to section 30600(a) of the California
Public Resources Code and Chapter 20.94 of the Newport Beach Municipal Code, UGS
Development Inc. ( "Applicant ") applied to the City of Newport Beach for a zoning code
amendment and for the adoption of the Bayside Residential Planned Community District
Development Regulations for the property located at 919 Bayside Drive, which application was
assigned the number PA 2004 -072;
B. WHEREAS, on March 14, 2006, the Newport Beach City Council adopted
Ordinance No. 2006 -6 approving Code Amendment No. 2004 -003 amending Zoning District
Map No. 15 and adopting the Bayside Residential Planned Community District Development
Regulations for the property located at 919 Baysidc Drive;
C. WHEREAS, Applicant applied for a coastal development permit, pursuant to
the California Coastal Act ( "Coastal Act"), I for the demolition of a 64 unit apartment complex
and construction of 17 single - family residences with associated improvements at 919 Bayside
Drive. On February 15, 2007, the Commission approved Coastal Development Permit ( "CDP ")
No. 05 -06 -145, subject to Special Conditions;
D. WHEREAS, Special Condition 8 of CDP 05 -06 -145 ( "Special Condition 8 ")
required UGS Development Inc. to pay a mitigation fee to the City of Newport Beach in
accordance with the agreement required in subsection B of that condition, in an amount not less
than $240,000.00, which shall be increased and/or supplemented as necessary by the Applicant or
its successor(s) in interest to be sufficient for City to design, permit, and construct a public dock,
with not less than 100 -feet of wharfage area, for the short tetm/transient docking of boats in
Newport Harbor at the Rhine Channel Wharf, Newport Beach, California;
E. WHEREAS, Special Condition 8 requires that if the construction of the public
dock becomes infeasible, the Applicant shall submit an application to amend CDP No. 05 -06-
145;
' Cal. Pub. Resources Code §§ 30,000 et seq. In this document, all further references to Code Sections in the
30,000s are references to California Public Resources Code sections within the Coastal Act.
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach Page -2 -
F. WHEREAS, Special Condition 8 requires the Executive Director of the
Commission ( "Executive Director ") to determine if the project is infeasible and if so, to make a
determination identifying a different feasible project appropriate for the use of this in -lieu fee;
G. WHEREAS, Special Condition 8 requires the mitigation fee to be used for the
purposes described in subsection A of that condition in accordance with the terms and conditions
of this MOU;
H. WHEREAS, City wishes to receive the mitigation fee required by Special
Condition 8 ( "the Funds ") and to use it to provide a new public dock at the Rhine Channel
Wharf, consistent with the requirements of Special Condition 8;
1. WHEREAS, the Commission has concluded that City will be an appropriate
recipient to receive the Funds and will accept the Funds for the purposes described in Special
Condition 8;
J. WHEREAS, City is authorized to enter into this MOU via approval of Agenda
Item # 18 at a Regular Meeting of the Newport Beach City Council held June 12, 2007; and
K. WHEREAS, the Executive Director is authorized to enter into this agreement on
behalf of the Commission by CDP 05 -06 -145, which the Commission approved pursuant to its
authority under Sections 30330, 30600(c) and 30607.
NOW, THEREFORE, for consideration of the mutual covenants and representations
herein, it is mutually agreed by and between the undersigned Parties as follows:
1. Upon execution of this Memorandum of Understanding by the Parties, the
Applicant shall pay to the City of Newport Beach Two Hundred and Forty Thousand Dollars and
No Cents ($240,000.00). If additional funds in excess of the Two Hundred and Forty Thousand
Dollars and No Cents ($240,000.00) transferred to City pursuant to this MOU are required to
complete the Project, described in Section 2 below and in Special Condition 8, City shall request
that the Executive Director demand such additional/supplementary funding from UGS
Development, Inc., or its successor(s) in interest. City shall provide the Executive Director with
all necessary information to justify the need for additional funding. If the Executive Director
concurs with City's determination that additional funds are necessary, he or she shall demand
such additional /supplementary funding from the Applicant or its successor(s) in interest. The
Parties hereto agree that if City is not provided with any and all additional funding to complete
the Project, this would constitute good cause for City to terminate this MOU, pursuant to
paragraph 14.
2. City shall utilize all funds transferred to City pursuant to this MOU, including any
later accrued interest, to design, provide construction management, obtain permits, complete
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach Page -3 -
necessary mitigation measures, complete environmental analysis for and construct a public dock,
with not less than 100 -feet of wharfage area for the short term/transient docking of boats in
Newport Harbor at the Rhine Channel Wharf in Newport Beach, California ( "Project "). Funds
transferred to City pursuant to this MOU may only be utilized to pay fees, costs and expenses
associated with the Project.
3. City shall: (1) obtain approval of a final plan from the Commission as described in
this paragraph and (2) obtain a Coastal Development Permit to implement the approved
activities. City shall submit to the Executive Director of the Commission a final plan within
twelve (12) months of the date on which the Funds are transferred to City. The final plan shall
provide for construction and opening of the public dock within twenty four (24) months of
approval of the final plan by the Executive Director. The Executive Director shall expeditiously
approve or reject the final plan. The Executive Director shall reject the final plan if it does not
demonstrate that City will comply with the terms of Special Condition 8 and this MOU.
4. City shall apply for a Coastal Development Permit(s) for implementation of the
Project. The Coastal Development Permit application shall be submitted to the Executive
Director within one year of the date on which the Executive Director approves the final plan
described in paragraph 3. However, City may submit the CDP application before the Final
Plan's submittal or approval. If the CDP application is submitted prior to submittal and/or
approval of the final plan, the final plan approval shall be submitted to the Executive Director
prior to Commission action on the CDP application. The Commission shall expeditiously
approve, modify and approve, or reject the CDP.
5. City shall obtain a Coastal Development Permit and all other necessary regulatory
permits and approvals prior to implementing the Project.
6. If the Executive Director determines that construction of the Project is infeasible,
the Applicant shall submit an application to amend the CDP No. 05 -06 -145 and the Executive
Director shall identify a different feasible project appropriate for the use of the mitigation fee
specified in paragraph 1.
7. Notwithstanding City's use of the Funds derived from the in lieu fees required by
the Commission in CDP 05 -06 -145, and the review of plans and/or programs by the Commission
or its Executive Director pursuant to this MOU, prior to City's use of the 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 the Funds are held by City, the Funds shall be deposited in
a separate and independent interest bearing account created solely to manage the Funds. All of
the Funds, along with accrued interest, and interest which may accrue while City holds the
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach Page -4 -
Funds, shall be utilized solely for the purposes set forth in this MOU. Any reference to the Funds
to be utilized pursuant to this MOU shall include such interest.
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 3 by the Executive Director, is not
a substitute for any coastal development permit or other approval needed by City or any other
person or entity to undertake the Project to be built with the Funds.
11. City shall use the Funds exclusively to finance the Project described herein, as
approved by the Executive Director pursuant to City's final plan described in paragraph 3.
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. 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 the 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 Project has not
been fully completed within that time and the 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
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 Project has not been completed and the Funds spent.
The Commission's Executive Director may, at his or her discretion, grant to City an extension of
time of up to five additional years for use of the 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 Special Condition 8
and with this MOU. If less than all of the Funds are used by City in completing the subject
Project 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 transferred by City to a Commission- approved
alternate entity within 60 days of notification to City by the Executive Director.
13. The public dock constructed pursuant to this MOU shall continue to be operated
as a public dock in accordance with the terms of this MOU, whether the City of Newport Beach
or another entity owns or operates the public dock
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach Page -5 -
14. Either parry 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 all
remaining Funds shall be transferred by City to a Commission - approved alternate entity within
60 days of termination. Good cause shall include, but is not limited to, a determination by the
Executive Director that City is not proceeding reasonably and expeditiously to complete any
component of the Project 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.
15. 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.
16. The MOU is executed in counterparts, each of which shall be considered a
duplicate original.
17. 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 Paragraph 18. Notice of a change of address shall be given by written notice in the
manner set forth in this section.
18. 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, I Oth Floor
Long Beach, CA 90802 -4325
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach Page -6 -
19. This MOU shall be binding upon and shall inure to the benefit of the successors and
assigns of the Parties.
20. This MOU shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
21. This MOU is executed as of the date on which it has been signed by the
authorized representatives of all the Parties.
22. Should any provision of this MOU be found void or unenforceable, it shall be
severable from the rest of the MOU and the remaining terms shall be enforced as if the
unenforceable term had not existed.
[SIGNATURES ON FOLLOWING PAGE
Between the California Coastal Commission
Memorandum of Understanding
And City of Newport Beach
APPROVED AS TO FORM:
By: ) e� C_ •---�
Aaron C. Harp,
Assistant City Attomey
ATTEST:
1
y: G Off
TVofLe ar les ,
JJJ City Clerk
�4rowH�r
CITY OF NEWPORT BEACH,
A Municipal Corporation
By; -�.
Homer Bludau,
City Manager
STATE OF
CALIF I/A
By:��eter ouF
Executive
Page -7 -