HomeMy WebLinkAboutC-5046 - MOU for Irvine Coast Marine Life Refuge Area of Special Biological Significance Exception ProcessMEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF NEWPORT BEACH
AND THE IRVINE COMPANY, LLC FOR
IRVINE COAST MARINE LIFE REFUGE AREA OF SPECIAL BIOLOGICAL
SIGNIFICANCE EXCEPTION PROCESS
THIS MEMORANDUM OF UNDERSTANDING ( "MOU ") is made and entered into
as of J 2012 ( "Effective Date ") by and between the City of Newport Beach,
a California`%nun cipal corporation ( "City ") and The Irvine Company, LLC, a Delaware
limited liability company ( "TIC ").
RECITALS
WHEREAS, the State Water Resources Control Board ( "Board ") has begun an
active campaign to issue exceptions to Section III.E.1 of the Ocean Plan that requires
that: "Waste shall not be discharged to areas designated as being of special biological
significance" ( "ASBS ");
WHEREAS, the City is seeking an exception to allow the City and those entities
operating under the City's exception to discharge runoff into the ASBS ( "Exception
Process ");
WHEREAS, TIC received a letter dated October 18, 2004 from the Board
informing TIC, under the Ocean Plan, that it is not authorized to discharge any waste
from its storm drain system to the ASBS, and that TIC may, if it believes its discharges
will not compromise protection of ocean waters for beneficial uses, request coverage
under the exception process to the Ocean Plan in order to continue to discharge dry
and wet weather runoff into ASBS No. 33 (the Irvine Coast Marine Life Refuge Area of
Special Biological Significance ). A copy of this letter is attached hereto as Exhibit "A"
and incorporated herein by reference.
WHEREAS, it is anticipated that the special protections specified under the
Exception Process will require annual inspections and flow and constituent monitoring
at the end of pipe discharging directly to ASBS No. 32 (Newport ASBS) and in the
Pelican Point Subwatershed (defined below) portion of ASBS No. 33 (collectively,
"Newport Beach ASBS ") receiving waters during the dry and rainy season. A map
depicting the Newport Beach ASBS is attached hereto as Exhibit "B" and incorporated
herein by reference;
WHEREAS, it is anticipated that the Exception Process will require preparation of
a Storm Water Pollution Prevention Plan ( "SWPPP ") that will define steps to be
implemented to prevent anthropogenic impacts from wet weather flows to the Newport
Beach ASBS;
WHEREAS, City has provided funding; conducted flow, water quality, toxicity and
bioaccumulation testing; conducted public use studies; and investigated tidal and
longshore current transport mechanisms that pertains to the Newport Beach ASBS;
WHEREAS, City has participated in funding regional ocean monitoring programs
to characterize benthic community health of intertidal and subtidal marine life species
within the Newport Beach ASBS;
WHEREAS, City has participated in regular coordination and public meetings
with the Board, as well as coordination meetings with other agencies in Southern
California with MLR ASBS concerns;
WHEREAS, City is implementing projects to reduce impacts to the Newport
Beach ASBS;
WHEREAS, TIC has constructed a facility to capture dry weather flow within the
Pelican Point subwatershed, which includes City, Caltrans, Pelican Point Homeowners
Ownership Association and TIC owned property (collectively, "Pelican Point
Subwatershed "), and pumps these flows into the City's sanitary sewer. The Pelican
Point Subwatershed is depicted in Exhibit "B ";
WHEREAS, on March 28, 2006, City agreed to submit relevant data to the Board
relating to the Newport Beach ASBS and authorized the Mayor to write a letter to the
Board stating that the City is interested in working with the Board's Exception Process
for the Newport Beach ASBS provided that the City's participation leads to an outcome
within the Exception Process that is reasonable and attainable ( "City's Response ");
WHEREAS, TIC desires to be included under the City's coverage under the
Exception Process contemplated by the City's Response;
NOW, THEREFORE, IT IS AGREED by and between the undersigned parties as
follows:
1. TERM
The term of this MOU shall commence on the Effective Date and shall continue until the
expiration of the Exception Process, unless terminated earlier as set forth herein.
2. INCORPORATION OF RECITALS
The above Recitals are hereby incorporated by reference into the operative part of this
MOU.
3. SCOPE OF MOU
3.1 City will include TIC in its coverage under the Exception Process as
contemplated in the City's Response and represent TIC at coordination and public
meetings with regard to the Newport Beach ASBS.
3.2 City shall use its best efforts to work with TIC to implement measures to
reduce runoff and subsurface inflow, if any, emanating from TIC owned lands within the
Pelican Point Subwatershed.
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3.3 The parties agree that the City, in its sole and absolute discretion, shall
have the right to take action to withdraw the City from the Board's Exception Process at
any time. If the City elects to withdraw from the Board's Exception Process, the parties
agree that TIC may continue with the Board's Exception Process in its own name to the
extent allowed by the Board or withdraw from the Board's Exception Process. The
parties hereto also agree that, at any time (including after granting of the Exception
Process), TIC shall have the right to withdraw TIC from the Board's Exception Process
or to withdraw from the City's coverage under the Board Exception Process and
terminate this MOU pursuant to Section 6.1.
4. COOPERATION
4.1 TIC agrees that, subject to the withdrawal provision of Section 3.3, upon
granting of the Exception Process it will comply with all applicable mandates, conditions
and obligations of the Board's ASBS program including, but not limited to, the Exception
Process for the Newport Beach ASBS.
4.2 TIC shall cooperate with City staff to initiate and complete requirements of
the Exception Process including specific measures to reduce any significant dry
weather runoff and subsurface inflow flowing to the Newport Beach ASBS from TIC
owned lands within the Pelican Point Subwatershed and institute measures to reduce
the amount of materials, if any, defined by the Board as harmful to marine life, entering
the the Newport Beach ASBS from TIC owned lands within the Pelican Point
Subwatershed, in each case TIC's costs to be borne by TIC.
4.3 TIC shall provide reasonable and periodic access to TIC owned lands to
allow City staff and consultants to perform monitoring functions as needed to meet the
requirements of the Board.
5. COSTS
5.1 City will fund water quality monitoring, ecological studies and preparation
of the SWPPP as required to implement the Exception Process.
5.2 TIC shall be responsible for expenses associated with monitoring or
reducing dry- weather flows and harmful materials, if any, from TIC owned lands within
the Pelican Point Subwatershed and expenses associated with maintaining the Pelican
Point dry- weather flow diversion pump station to the extent that TIC elects to continue to
operate the pump station which it operates on a voluntary basis. TIC shall reimburse
City for any and all expenses attributable to TIC within thirty (30) days of receipt of
invoice from the City. Nothing in this MOU shall obligate TIC to continue to maintain or
operate the Pelican Point dry- weather flow diversion pump station or to maintain the
current use of or to not modify the current use of TIC owned land within the Pelican
Point Subwatershed.
5.3 For all issues involving mutual costs or TIC costs, City will obtain written
concurrence from TIC prior to initiating any non - emergency services or work, including,
but not limited to, studies or projects, for which the City will seek to recover costs and
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expenses from TIC. If TIC fails to give its written concurrence for a cost that the City
deems necessary City may immediately terminate this MOU. TIC will pay all costs
attributable to it under this MOU, within thirty (30) days of receipt of invoice from City,
including all costs incurred prior to termination.
6. TERMINATION
6.1 This MOU may be terminated by the City or TIC on not less than ten (10)
calendar days prior written notice to the other party if (i) the City or TIC elects to
withdraw from the Board Exception Process or the City's coverage under the Board
Exception Process pursuant to Section 3.3 hereof; (ii) the City or TIC determines, in its
sole and absolute discretion, that the other party is not fulfilling its obligations under this
MOU; or (iii) TIC elects to stop maintaining and operating the Pelican Point dry- weather
flow diversion pump station. Upon any termination of this MOU pursuant to this Section
6.1, each party shall be responsible for amounts then owed under the MOU and
subsequently the parties shall have no further obligations under this MOU.
Notwithstanding the termination provisions provided above, the City may terminate this
MOU at any time without cause on not less than ten (10) calendar days prior written
notice to TIC.
6.2 The granting of the Boards Exception Process is a condition subsequent
to the continued effectiveness of this MOU, the MOU shall be rendered null and void
should such an exception not be issued.
6.3 If any condition or requirement imposed by the Board or Regional Water
Quality Control Board is deemed by either party to be unreasonable and /or
unattainable, either party may terminate this MOU pursuant to Section 6.1.
6.4 TIC's coverage under the City's Exception Process shall immediately
cease with any termination of this MOU.
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7.1 All notices, demands, requests or approvals to be given under the terms of
this MOU shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from TIC to City shall be addressed to City at:
Attn: Stephen Badum
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
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7.2 All notices, demands, requests or approvals from City to TIC shall be
addressed to TIC at:
Attention: Clay A. Halvorsen
General Counsel
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
8. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this MOU, neither City nor TIC shall assign its
right, title or interest in or to this MOU without the prior written consent of the other
party. Notwithstanding the foregoing, TIC, may assign all right, title or interest in or to
this MOU to an entity which controls, is controlled by or is under common control with
TIC.
9. HOLD HARMLESS
9.1 This MOU is entered into without admission of liability or waiver
whatsoever, including with regard to the law governing ASBS, MLR ASBS, or water
quality control in general, and each party reserves to itself all rights and remedies it may
hold.
9.2 To the fullest extent permitted by law, TIC shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties ") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this MOU by
TIC, any work performed or services provided under this MOU by TIC including, without
limitation, defects in workmanship or materials or TIC's presence or activities conducted
under this MOU (including the negligent and /or willful acts, errors and /or omissions of
TIC, its principals, officers, agents, employees, vendors, suppliers, subconsultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
9.3 Notwithstanding the foregoing, nothing herein shall be construed to
require TIC to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity
shall be construed as authorizing any award of attorney's fees in any action on or to
enforce the terms of this MOU. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by TIC.
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10. CONTROLLING LAM AND VENUE
The laws of the State of California shall govern this MOU and all matters relating to it
and any action brought relating to this MOU shall be adjudicated in a court of competent
jurisdiction in the County of Orange.
11. COUNTERPARTS
This MOU may be executed in two (2) or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one (1) and the same
instrument.
12. NO ATTORNEY'S FEES
In the event of any dispute or legal action arising under this MOU, the prevailing party
shall not be entitled to attorney's fees.
13. NO DAMAGES
The parties acknowledge that City and TIC would not have entered into this MOU if
either were to be liable in damages under, or with respect to, this MOU or any of the
matters referred to in this MOU. Accordingly, (i) TIC covenants on behalf of itself and its
successors and assigns, not to sue the City for damages or monetary relief for any
breach of this MOU by City or arising out of or connected with any dispute, controversy,
or issue between City and TIC regarding this MOU or any of the matters referred to in
this MOU or any future amendments or enactments thereto, the parties agreeing that
declaratory and injunctive relief, mandate, and specific performance shall be TIC's sole
and exclusive judicial remedies and (ii) City covenants on behalf of itself and its
successors and assigns, not to sue TIC for damages or monetary relief for any breach
of this MOU by TIC or arising out of or connected with any dispute, controversy, or issue
between TIC and City regarding this MOU or any of the matters referred to in this MOU
or any future amendments or enactments thereto, the parties agreeing that declaratory
and injunctive relief, mandate, and specific performance shall be City's sole and
exclusive judicial remedies; provided, however, that City may seek recovery for
amounts due City from TIC pursuant to Section 5 of the MOU prior to the termination of
this MOU.
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IN WITNESS WHEREOF, the parties have caused this MOU to be executed on
the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1/13/1L
By:
/� 1
Aaron C. hW
City Attorney
ATTEST: 3 � 1Z
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: T Jj Z
By:
Mayor
THE IRVINE COMPANY, LLC,
A Delaware limited liability company
Date:
By:
Dani I T. Miller
Senior Vice President
Entitlement & Public Affairs
Date: / - // - /
0
Vice President, General Counsel
ATTACHMENTS: Exhibit "A ": Letter dated October 18, 2004 from the Board to TIC
Exhibit "B ": Newport Beach ASBS and Pelican Point
Subwatershed Depiction
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State Water Resources Contr ®1 Bard
Executive tree Office
1001 [St • Sacmmento, California 95814 • (916) 3445615
Mailing Addtess; P.O. Box 100 • Sacramento, Califomia • 95812 -0100
Tarry Tamrninen Fax (916) 341 -5621 • hltp: / /www.swrcb.ca.gov
Secretary for Environmental
protection
October 18, 2004
Mr. Donald Bren, Chairman
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
Dear Mr. Bren:
PROHIBITION OF WASTE DISCHARGES INTO THE IRVINE COAST MARINE LIFE
REFUGE AREA OF SPECIAL BIOLOGICAL SIGNIFICANCE
The California Ocean Plan (Ocean Plan), adopted by the State Water Resources Control Board
(State Board) and approved by the U.S. Environmental Protection Agency (U.S. EPA), lists
34 coastal marine waters which the State Board has designated as Areas of Special Biological
Significance (ASBS). ASBS are defined as "those areas designated by the State Board requiring
protection of species or biological communities to the extent that alteration of natural water
quality is undesirable."
The Ocean Plan, Section III.E.1., requires that: "Waste* shall not be discharged to areas
designated as being of special biological significance. Discharges shall be located a sufficient
distance from such designated areas to assure maintenance of natural water quality conditions in
these areas." "Waste" is defined as the "total discharge, of whatever origin." Your discharge of
storm water (dry and wet weather runoff) into the Irvine Coast Marine Life Refuge Area of
Special Biological Significance is subject to the prohibition against waste discharges to an
ASBS.
The Ocean Plan, Section Irld.1, allows the State Board to grant exceptions to this prohibition,
provided that the exception "will not compromise protection of ocean waters for beneficial uses,
and, [t]he public interest will be served." Prior to granting an exception, the State Board must
hold a public hearing, and there must be compliance with the California Environmental Quality
Act (CEQA). The U.S. EPA must also concur.
Information regarding the Ocean Plan, ASBS, or existing exceptions to the Ocean Plan may be
found at httP://www.swrcb.ca.gov/plilspols/oplang/index.htnii .
California Environmental Protection Agency
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1�1
Mr. Donald Bren - 2 - October 18, 2004
Because you do not already have an exception issued by the State Board for discharges to the
ASBS, you are required to cease discharging. You may, however, request an exception to the
prohibition if you believe your discharge will not compromise protection of ocean waters for
beneficial uses, and the public interest will be served. Please notify the State Board prior to
January 1, 2005 whether you intend to cease discharging to the specified ASBS or whether you
will seek an exception. We will discuss further steps with you subsequently. Your response
should be sent to Dominic Gregorio of the Division of Water Quality, Ocean Standards Unit,
with a copy sent to the Santa Ana Regional Water Quality Control Board.
The State Board staff will hold a workshop, at a date and location as yet to be determined, for
those parties interested in pursing an exception. The purpose of this workshop will be to provide
information on the procedures for applying for an exception and possible funding sources that
may be available to address discharges into ASBS. You will receive an invitation to this
workshop in the near future.
If you have any questions, please feel free to contact Stan Martinson, Chief, Division of Water
Quality, at (916) 341-5458 (marts@swrcb.ca.gov) or Dominic Gregorio, Division of Water
Quality, Ocean Standards Unit, at (916) 341-5488 (gregd@swrcb.ca.gov) .
Sincerely,
Original signed by Tom Howard for
Celeste Cantu
Executive Director
cc: Mr. Larry McKenny
Orange County Watershed & Coastal Resources Office
P.O. Box 4048
Santa Ana, CA 92702-4048
Mr. Dave Schaub
Department of Parks and Recreation
P.O. Box 942896
Sacramento, CA 94296-0001
Mr. Gerard J. Thibeault, Executive Officer
Santa Ana Regional Water Quality Control Board
3737 Main Street, Suite 500
Riverside, CA 92501-3339
California Environmental Protection Agency
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Mr. Donald Bren -3 - October 18, 2004
bcc: Board members, EXEC
Tom Howard, EXEC
Sheila Vassey, OCC
Betsy Jennings, OCC
John Norton, OSI
Stan Martinson, DWQ
John Ladd, DWQ
Gerald Bowes, DWQ
Bruce Fujimoto, DWQ
Frank Palmer, DWQ
Frank Roddy, DWQ
Dominic Gregorio, DWQ
W:\.Standards\Letters\DG--VERSION 4 fina1\D. Bren-Irvine Co.doc
California Environmental Protection Agency
co Recycled Paper