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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 -