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HomeMy WebLinkAbout06 - MOU with The Irvine Company - ASBS�a�WPORr CITY OF NEWPORT BEACH Cq[1F00.�`P City Council Staff Report Agenda Item No. 6 January 24, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Public Works Director 949 - 644 -3311, sbadum @newportbeachca.gov PREPARED BY: Bob Stein, Assistant City Engineer rstein @newportbeachca.gov APPROVED: A TITLE: Memorandum of Understanding to Accommodate The Irvine Company under the City Exception Process to the California Ocean Plan for Discharges to Areas of Special Biological Significance F-11 *3raeTIM It is expected that the State Water Resource Control Board (State Board) will grant the City an Exception to the California Ocean Plan to allow existing storm water discharge into Areas of Special Biological Significance (ASBS). The Exemption will include conditions (called "Special Protections ") that the City will be required to fulfill. The Irvine Company (TIC) has requested that it be covered under the City's Exemption. RECOMMENDATION: Approve and execute the Memorandum of Understanding _(MOU) with TIC to include TIC under an Exception to the California Ocean Plan for selected discharges into ASBS expected to be granted to the City by the State Board. FUNDING REQUIREMENTS: As proposed by the State Board, the City's annual costs for routine monitoring as required by the Exemption are estimated at $20,000 per year. If the MOU with TIC is approved, the annual cost would increase City costs about $10,000 per year. The current adopted budget includes sufficient funding for this activity. It will be expensed to the NPDES Administration account in the Public Works Department, 5060- 8080. Memorandum of Understanding to Accommodate The Irvine Company under the City Exception Process to the California Ocean Plan for Discharges to Areas of Special Biological Significance January 24, 2012 Page 2 DISCUSSION: The ASBS support many of the beneficial uses outlined in the California Ocean Plan of which the most relevant relate to recreational uses of the beach and support of the special habitat within the ASBS. In 2005, the State Board advised the City that any direct storm drain discharges into the Newport ASBS (see attached location map) along Newport Coast that contained any constituents of anthropomorphic origin would be in violation of the California Ocean Plan. There are 23 existing storm drain discharge points into Newport ASBS. Three of the storm drains are City drains (18 -inch diameter) that capture runoff from the Shorecliffs and Cameo Shores communities. The remaining drains are small (less that 6 -inch diameter) and drain residential properties adjacent to the beach. TIC and the Pelican Point Community Association each received an identical letter in 2005 from the State Board prohibiting discharges from the Pelican Point watershed into the Irvine ASBS. The small Pelican Point watershed includes the Pelican Point community, portions of the Pelican Hill Golf Course, and portions of Cameo Highlands and adjacent Coast Highway. TIC and the Pelican Point Community Association were the only non - governmental agencies to receive these notifications. It is unclear why they were singled out. In 2006, the City executed an agreement with the Pelican Point Community Association to include it in the City's ASBS protection program. Over the past six years, the City, with assistance from TIC, has attempted to work with the State Board to define appropriate Special Protections for the Exception to allow for storm water discharge from these drains. During this period, the City hired a consultant to monitor flow and water quality from these storm drains as well as water quality within the near shore receiving waters. TIC has also been monitoring flow and water quality emanating from the Pelican Point watershed and within the near shore receiving waters. Additionally, TIC constructed a pump station to capture all dry weather flows from this watershed and divert these flows to the City's sanitary sewer system in Cameo Shores. These flows are then pumped through a series of pump stations to the Orange County Sanitation District plant in Huntington Beach. TIC operates and maintains the Pelican Point pump station. It is expected that once the Exception is approved, there will be requirements for annual monitoring similar to what is currently being performed by the City and TIC. In asking to be covered under the City's Exemption, TIC has requested the City relieve TIC of future routine monitoring responsibilities and to incorporate the monitoring of the Pelican Point watershed into the City's monitoring of drains near Buck Gully and Morning Canyon. While adding to the City's monitoring costs, from a practical point of view it makes sense for a single consultant to perform the monitoring. The monitoring is a benefit not only to TIC, but to property owners in the Pelican Point and Cameo Highland communities. By assuming responsibility for the routine monitoring, the City partially offsets costs incurred by TIC for construction, operation and maintenance of the Pelican 9i Memorandum of Understanding to Accommodate The Irvine Company under the City Exception Process to the California Ocean Plan for Discharges to Areas of Special Biological Significance January 24, 2012 Page 3 Point pump station. As outlined in the MOU, TIC would still be responsible for participating in future projects needed to reduce pollutant loads entering the ASBS. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Section 15306 (Information Collection) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted bv: Attachments: A. Proposed MOU between the City and The Irvine Company B. MOU between the City and the Pelican Point Community Association (2006) o; .i kli MEMORANDUM 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 2012 ( "Effective Date ") by and between the City of Newport Beach, a California municipal 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; 6 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. Page 2 of 7 b 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 Page 3 of 7 1 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. 7. NOTICES 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 Page 4 of 7 tA 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. Page 5 of 7 10. CONTROLLING LAW 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. Page 6 of 7 1161 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: 3 g By: — A9 (4f, Aaron C. a City Attorney x"\11 ll ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: Mayor THE IRVINE COMPANY, LLC, A Delaware limited liability company /-- /)- I Darfel T. Miller Senior Vice President Entitlement & Public Affairs Date: / "lo -/Z In Halvorsen 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 Page 7 of 7 ,'1� State Water Resources Control Board Terry Tamminen Secremry f,r Eaviran,aeawl Protection October 1.8, 2004 Executive Office 1001 1 Slrect • Sacramento, California 95814 • (916) 341-5615 Mailing Address: P.O. Box 100 • Sacramento, California • 95812 -0100 Pax (916) 341 -5621 • huP: / /wwiv.s%mb.ca.gov Mr. Donald Bien, Chairman The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Dear Mr. Brent: (0 Amold Schwarzenegger Governor 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 IB.E.l., 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 BLL.l, 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 help:// www. swrcb. ca .aov /i)liispols /oplans /index.hhul . California Environmental Protection Agency l0•cled Paper 119 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 (matts@swreb.ca.gov) or Dominic Gregorio, Division of Water Quality, Ocean Standards Unit, at (916) 341 -5488 (grea(I@swrcb.ca.gov) . Sincerely, Original signed by Tom Howaa•d jor Celeste Canni Executive Director cc: Mr. Larry McKenney 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 pod &cyled Pope' Mr. Donald Bren - 3 - October 18, 2004 bee: Board members, EXEC Tom Howard, EXEC Sheila Vassey, OCC Betsy Jennings, OCC John Norton, OST Stan Martinson, DWQ John Ladd, DWQ Gerald Bowes, DWQ Bruce Fujimoto, DWQ Frank Palmer, DWQ Frank Roddy, DWQ Dominic Gregorio, DWQ W:�Slanduds\lxuers\DG.- VERSION 4 f nAD. Bren -Irvine Co.doc California Environmental Protection Agency ea Recycled Paper i'7 Ila 0 1 U 1 2 3 MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING ("MOU ") is made and entered into as of the 5 11 signed by the Mayor, City of Newport Beach, is, 6 BY AND BETWEEN 7 The CITY OFNEWPORT BEACH, a 8 Municipal Corporation hereinafter referred to as "City ". 9 AND 10 Pelican Point Community Association, a California corporation, hereinafter referred to as `Pelican Point". 11 12 1411 WITNESSETH 15 WHEREAS, the State Water Resources Control Board (Board) has begun an active campaign to 16 enforce Section M.E.1 of the Ocean Plan that requires: "Waste shall not be discharged to areas designated 17 as being of special biological significance" (ASKS); 18 WHEREAS, Pelican Point received a letter on December 5, 2005 from the Board informing Pelican 19 Point Community Association (Pelican Point), under the Ocean Plan, is not authorized to discharge any 20 waste from its storm drain system to the ASBS, and lbat Pelican Point may, if it believes its discharges will 21 not compromise protection of ocean wasters for beneficial uses, request coverage under the exception 22 process to the Ocean Plan in order to continue to discharge dry and wet weather runoff into the Irvine 23 Area of Special Biological Significance (ASBS) and supply specific information by May 31, 2006 to 24 support the Board's consideration of an exception to the Ocean Plan for discharges to the Irvine Coast 25 ASBS; 26 Page 1 of 1 ,q r 1 WHEREAS, City has created the Newport Coast Watershed Program and has initiated a number of 2 flow, water quality, ecological, and groundwater studies as initial planning steps toward protecting the 3 watershed and adjacent coastline; 4 WHEREAS, City has agreed to submit relevant data to the Board relating to the Newport Beach 5 Marine Life Refuge (' MLR') ASBS and the Irvine Coast MLR ASBS and have the Mayor write a letter to 6 the Board stating that the City is interested in working wish the Board's Exception Process for the Newport 7 Beach MRL ASBS and the Irvine Coast MRL ASBS provided that the City's participation leads to an 6 outcome within the Exception Process that is reasonable and attainable ("City's Response "); s WHEREAS, Pelican Point desires to be included in the City's Newport Coast Watershed Program 10 and City's Response; 11 WHEREAS, Pelican Point does not have the technical expertise, financial resources and sufficient 12 time to prepare the specific information requested by the Board for consideration of an exception to the 13 Ocean Plan; 14 WHEREAS, the City has provided funding and conducted flow and water quality testing that 15 pertains to the Pelican Point watershed area; 16 NOW, THEREFORE, IT IS AGREED by the parties hereto as follows: 17 A. CITY will include Pelican Point into its Newport Coast Watershed Program and City's 18 Response. The parties agree that the City, in its sole discretion, shall have the right to take action to 19 withdraw the City from the Board's Exception Process at any time. If the City elects to withdraw from the 20 Board's Exception Process, Pelican Point shall be allowed to continue with the Board's Exception Process 21 in its own naive or withdraw from the Board's Exception Process. The parties hereto also agree that, at any 22 time, Pelican Point shall have the right to request that the City withdraw Pelican Point from the Board's 23 Exception Process.. 24 B. City agrees that: 25 UP, Page 2 of 2 2D 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. In City's sole discretion, it may fund future studies and monitoring as needed to implement all or parts of the Newport Coast Watershed Program and the associated reasonable and attainable drainage requirements and conditions from the Board. 2. City shall use its best efforts to work with The Irvine Company (TIC) for waste and discharge issues emanating from the golf course and TIC properties. C. Pelican Point agrees that: 1. It will comply with all reasonable and attainable mandates, conditions and obligations set by the Board including, but not limited to, the Board Exception Process for the Newport Coast Watershed Program. 2. Pelican Point shall cooperate with City staff to initiate and complete specific reasonable and attainable measures to significantly reduce dry weather runoff flowing to the Irvine Coast ASBS and institute reasonable and attainable measures to significantly reduce the amount of materials, defined by the Board as harmful to marine life, entering the Irvine Coast ASBS, at its own cost. 3. Pelican .Point shall be responsible for expenses associated with reducing dry- weather flows and harmful materials from common association areas. 4. Pelican Point shall provide reasonable and periodic access to City staff and consultants to perform monitoring functions as needed to meet the requirements of the Board; 5. The parties agree that for all issues involving mutual costs, City will obtain written concurrence from Pelican Point prior to initiating any services or work, including, but not limited to, studies or projects, for which the City will seek to recover costs and expenses from Pelican Point. G. The parties agree that if the Board does not gram the exception or if any condition or requirement imposed by the Board or Regional Water Quality Control Board is deemed by the City to be unreasonable and unattainable, the City shall have no further obligations under this MOU. 7. The parties agree that if the City determines, in its sole discretion, that Pelican Point or its members are not fulfilling thee• obligations under this MOU or otherwise, it may provide notice to Pelican Point thereof and shall have no further obligations under this MOU. Page 3 of 3 ,0 II 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U L IN WITNESS WHEREOF, the City has caused this MOU'to be executed by the Mayor and attested by its clerk, and Pelican Point has caused Lids MOU to be executed by its President of Pelican Point Board attested by its Secretary, all thereunto duly authorized by Minute Orders of the City Council and the Pelican Point respectively, on the date written opposite their signatures. Date: Date: G l ��o �D(4 Pelican Point a California Corporation By: President, Pe cA Po t Pelican Point Yr -o"CIL THE CTTY OF NEWPORT BEACH, A municipal corporation By: ayor ATTEST:) Appro ed as to form: ell City Clerk of the Council City Attorney 21