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HomeMy WebLinkAboutAGENDA REPORT 2015 1007 CC SPC ITEM 05A ITEM 5.A. CITY OF MOORPARK,CALIFORNIA City Council Meeting of 300, to - o1- iot5 ACTION: MOORPARK CITY COUNCIL antla""r AGENDA REPORTnom* eY: ys,TO: Honorable City Council FROM: David A. Bobardt, Community Development Director VY DATE: October 6, 2015 (CC Special Meeting of 10/7/2015) SUBJECT: Consider Agreement between the Broad Beach Geologic Hazard Abatement District (BBGHAD) and the City of Moorpark for Truck Haul Routes and Monitoring in Connection with the Broad Beach Shoreline Protection and Sand Replenishment Project BACKGROUND/ DISCUSSION In 2014, the City had objected to the use of Walnut Canyon Road, Moorpark Avenue and Grimes Canyon Road south of Broadway Road as potential sand hauling routes for the proposed Broad Beach Shoreline Protection and Sand Replenishment Project. The City objected because of the significant impacts that approximately 86,000 one-way truck trips hauling 600,000 cubic yards of sand along those routes would have on the City, including but not limited to: (1) a disproportionate impact on the lower-income, disadvantaged and Latino portion of the community through which those trucks would travel; (2) dangers caused to school children arising from the existence of eight school bus stops located along Grimes Canyon Road, the lack of sidewalks along portions of those roads which are used by school children to walk to and from two elementary schools, a middle school, the City library, local parks and other uses in close proximity to those routes; (3) the sand, dust and other particulate matter emanating from the trucks contribute to air pollution and may cause excess debris along local roads; (4) the noise pollution from the high volume of trucks and times of day of the hauling operation; and (5) the fact that both routes would cross active railroad tracks used by Amtrak and Metrolink as well as freight trains. On June 11, 2014, Mayor Parvin sent a letter to the Board of the BBGHAD objecting to the proposed haul routes for the Project through or adjacent to the City and asserting that use of those haul routes would constitute a public nuisance for which the City would seek to abate. On July 25, 2014, Mayor Parvin of the City sent letters to the members of the California Coastal Commission (CCC) and the State Lands Commission (SLC) asking for each Commission to impose conditions on the respective permits required for the Project to preclude the use of truck hauling routes through or adjacent to the City. 1 Honorable City Council October 7, 2015 Special Meeting Page 2 Since July 25, 2014, staff representatives of the BBGHAD and the City have met on several occasions to review and address the City's concerns with the proposed and potential haul routes and to develop a plan and system for using acceptable alternative and northerly haul routes that do not involve truck routes through or adjacent to the City, along with monitoring compliance with those alternative routes. BBGHAD staff and technical consultants have informed the City that a northerly route using State Highways 23 and 126 through the City of Fillmore, which avoid the City, are feasible and acceptable alternative routes for hauling sand from both the Grimes Rock and CEMEX quarries. An agreement was drafted by the City Attorney's Office and the BBGHAD Attorney to ensure, with monitoring by the City, that the trucks would not use the southerly roads through Moorpark for this project. On December 11, 2014, the CCC held a public hearing on the coastal development permit request in Monterey. City staff testified regarding its concerns on impacts to Moorpark, as the agreement had not been signed by the BBGHAD. Prior to action on the application, the BBGHAD withdrew its original permit application, and the drafted agreement was never executed. On April 3, 2015, the BBGHAD submitted a revised coastal development permit application to the CCC. A public hearing for this revised application has been scheduled before the CCC on October 9, 2015. The Broad Beach Shoreline Protection and Sand Replenishment Project as revised still involves the transport of sand from sand and rock quarries immediately north of the City to replenish Broad Beach in the City of Malibu, California. The project would be split into major sand deposition events of approximately 300,000 cubic yards each, one at the inception of the project and approximately every 5 years thereafter or as needed for a 20-year period. In addition, periodic interim or erosion nourishments involving up to 75,000 cubic yards would be permitted on an as needed basis. The project's initial sand deposition event and each major event occurring approximately every five (5) years thereafter would involve an estimated 44,000 one- way trips by sand hauling trucks over the course of approximately 3 to 5 months between the approximate hours of 7:00 a.m. and 9:00 p.m. five days per week. Two of the three sand and rock quarries (Grimes Rock and CEMEX) proposed as sources of the project sand are located immediately north of the City in unincorporated Ventura County. The revised project would have similar impacts on Moorpark as the original project. The City Attorney's Office and Attorney for BBGHAD updated the haul route and monitoring agreement to reflect the revised project. The Agreement precludes the use of haul routes through or adjacent to the City except in emergencies, as defined, and with monitoring and penalties for violation. The BBGHAD Board had signed a marked-up copy of the updated agreement. The City Attorney's Office is proposing that 2 Honorable City Council October 7, 2015 Special Meeting Page 3 the Mayor sign both the marked-up copy and a clean copy of the updated agreement (attached). FISCAL IMPACT None. STAFF RECOMMENDATION (ROLL CALL VOTE) Approve the Agreement and authorize the Mayor to sign the Agreement, subject to final language approval by the City Manager and City Attorney. Attachment: Draft Agreement 3 AGREEMENT BETWEEN THE BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT AND THE CITY OF MOORPARK REGARDING TRUCK HAUL ROUTES AND MONITORING IN CONNECTION WITH THE BROAD BEACH SHORELINE PROTECTION AND SAND REPLENISHMENT PROJECT This Agreement("Agreement") is made and entered into this day of October, 2015 by and between the Broad Beach Geologic Hazard Abatement District ("BBGHAD"),formed under California Public Resources Code Section 26500 et seq.,and the City of Moorpark,a California municipal corporation ("City") (collectively the "Parties"),to address and resolve the potential impacts of the Broad Beach Shoreline Protection and Sand Replenishment Project("Project") on the City. RECITALS A. The Project involves the transport of sand from sand and rock quarries immediately north of the City to replenish Broad Beach in the City of Malibu,California. As proposed,the Project would be split into major sand deposition events of approximately 300,000 cubic yards each,one at the inception of the Project and approximately every five (5) years thereafter or as needed. In addition,periodic interim or erosion nourishments involving up to 75,000 cubic yards would be permitted on an as needed basis. For purposes of this Agreement,the duration of the Project shall not exceed twenty(20)years, unless during the 20-year period of the Project, additional sand deposition events are approved by the BBGHAD and applicable permitting agencies, including but not limited to the California Coastal Commission (CCC). For purposes of this Agreement,the term"Project" includes interim nourishment and deposition events that occur during the 20-year period of the Project. This Project description may be subject to amendment as part of the permitting processes for each applicable permitting agency. B. As proposed,the Project's initial sand deposition event and each major event occurring approximately every five (5) years thereafter would involve an estimated 44,000 one-way trips by sand hauling trucks over the course of approximately three to five months between the approximate hours of 7:00 a.m. and 9:00 p.m. five days per week. Two of the three sand and rock quarries (Grimes Rock and CEMEX)proposed as sources of the Project sand are located immediately north of the City in unincorporated Ventura County. The BBGHAD originally proposed haul routes to and from those two quarries that included using Walnut Canyon Road,Moorpark Avenue and Grimes Canyon Road south of Broadway Road that are located in or immediately adjacent to the City. C. The City has objected to the use of Walnut Canyon Road, Moorpark Avenue and Grimes Canyon Road south of Broadway Road as potential haul routes for the Project because of the significant impacts those routes would have on the City, including but not limited to: a disproportionate impact on the lower-income, disadvantaged and Latino portion of the community through which those trucks would travel; dangers caused to school children arising from the existence of eight school bus stops located along Grimes Canyon Road, the lack of sidewalks along portions of those roads which are used by school children to 439319v2 12953-0033\1772830v12.dce 4 walk to and from two elementary schools, a middle school,the City library, local parks and other uses in close proximity to those routes; the sand,dust and other particulate matter emanating from the trucks contribute to air pollution and may cause excess debris along local roads;the noise pollution from the high volume of trucks and times of day of the hauling operation; and the fact that both routes would cross active railroad tracks used by Amtrak and Metrolink as well as freight trains. D. On June 11, 2014, Mayor Janice Parvin of the City sent a letter to the Board of the BBGHAD objecting to the proposed haul routes for the Project through or adjacent to the City and asserting that use of those haul routes would constitute a public nuisance for which the City would seek to abate. E. On July 25, 2014, Mayor Janice Parvin of the City sent letters to the members of the California Coastal Commission and the State Lands Commission asking for each Commission to impose conditions on the respective permits required for the Project to preclude the use of truck hauling routes through or adjacent to the City. F. On December 11,2014,the CCC held a public hearing in Monterey where, prior to action on the application,the BBGHAD withdraw its original coastal development permit application. G. On April 3, 2015,the BBGHAD submitted a revised coastal development permit application to the CCC,which is based on the Project description articulated in Recital "A"above, and a public hearing for this application has been scheduled before the CCC on October 9, 2015 or as may be continued thereafter from time-to-time. H. Since July 25, 2014, staff representatives of the BBGHAD and the City have met on several occasions to review and address the City's concerns with the proposed and potential haul routes and to develop a plan and system for using acceptable alternative and northerly haul routes that do not involve truck routes through or adjacent to the City, along with monitoring compliance with those alternative routes. I. BBGHAD staff and technical consultants have informed the City that a northerly route using State Highways 23 and 126 through the City of Fillmore,which avoid the City, are feasible and acceptable alternative routes for hauling sand from both the Grimes Rock and CEMEX quarries. J. The parties now desire to resolve the dispute over the truck routes for the Project and to formalize their agreement on which haul routes shall be used and not used and how compliance with the approved routing plan will be monitored and enforced. TERMS AND CONDITIONS In consideration of the matters set forth above, and for a full and valuable consideration, the Parties agree as follows: 1. Recitals. The Recitals above are true and correct, and are incorporated into the terms of this Agreement. 439319v2 -2- 12853-0033\1772830v12 doc 5 2. Prohibited Haul Routes. Trucks used for sand hauling in connection with the Project are prohibited from using Walnut Canyon Road, Grimes Canyon Road south of Broadway Road or any other highway, road or street in or immediately adjacent to the City of Moorpark, except in cases of"emergency,"as defined in Section 5 below. This includes truck trips to and from the quarries at the beginning or end of the work shift. 3. Staging and Parking of Trucks. All trucks used for sand hauling in connection with the Project shall not be staged or parked in the City or immediately adjacent to the City, at anytime for the duration of the Project. 4. Permitted Haul Routes. All sand hauling trucks for the Project shall use Grimes Canyon Road(State Route 23)to State Highway 126 through Fillmore as the haul route from the Grimes Rock quarry and/or the CEMEX quarry to the Project site and the same route from the Project site to the Grimes Rock quarry and/or CEMEX quarry. If the Grimes Rock quarry is used, trucks will only enter and exit the northern entrance of this quarry. 5. Emergency Exception to Haul Route Prohibitions. An"emergency"exists, for purposes of Sections 2 and 6, only when a first responder(a fire or law enforcement official from an agency with applicable jurisdiction)determines all lanes on State Highway 126 west of State Highway 23 or State Highway 23 north of the quarry are closed to truck traffic. An emergency ceases to exist when a first responder determines that at least one lane becomes available to truck traffic on portions of State Highway 126 and State Highway 23 referenced above. If only one direction of travel is affected,the use of this Emergency Exception shall only apply to the direction of travel that is blocked and truck travel shall continue to use the permitted haul route in the direction that is not blocked. If an emergency exists that precludes the use of the permitted haul route, then Grimes Canyon Road south of Broadway may be used but not Walnut Canyon Road unless Grimes Canyon Road south of Broadway is also blocked due to an emergency condition,and then only for the blocked direction of travel. 6. Requirements for Use of Emergency Exception. In the event of an emergency as defined in Section 5 above,use of routes through or adjacent to Moorpark may only occur between the hours of 7 A.M. and 8:15 P.M., Monday through Friday, except holidays. The BBGHAD shall provide City with immediate notice of the commencement of the Emergency Exception(not more than one hour after a determination of emergency). The notice of commencement of the Emergency Exception shall be provided by electronic mail to the City's City Manager(currently at SKueny@MoorparkCA.gov) and Community Development Director(currently at DBobardt@u,MoorparkCA.gpv) and by way of telephone to the City's Community Development Director(currently at(805.) 517-6281). During the period that any hauling is allowed or directed through Moorpark,the BBGHAD shall prohibit its contractors and subcontractors from using haul trucks with compression release engine brakes,known as"fake brakes"within the City (except under emergency operating conditions). 439319v2 -3- 12853-0033\1772830v12.doc 6 7. Duration of Haul Route Prohibitions. The haul route prohibitions shall apply to the BBGHAD's use of the Grimes Rock Quarry and CEMEX Quarry throughout the duration of the Project. The BBGHAD shall provide City notice of the commencement and completion of each of the sand deposition events for the Project. 8. Hauler Agreements. The BBGHAD shall include the haul route prohibitions in any agreements entered into between the BBGHAD,the quarries, and any contracted haulers and required contracted haulers to include such terms in their agreements with their subcontracted haulers involved in the Project. The City of Moorpark shall be a named beneficiary of this term in those contracts. 9. GPS Tracking Devices. The BBGHAD shall require all truck owners and operators used in the Project to place and maintain GPS tracking devices in each truck used for this Project, with a penalty imposed on truck hauler companies, subcontractors and independent contractors by BBGHAD and paid to City by BBGHAD,as provided in Section 12,for failure to use, removal or tampering with the GPS device while the truck is being used for this Project. 10. Computer Monitoring. Prior to the commencement of the first sand deposition event for the Project,the BBGHAD or its contractor or consultant shall, at BBGHAD's cost, provide, install,make operational and maintain in working order for the duration of the Project, software for at least one City-owned and operated computer that allows the City to monitor by web-based GPS the location of all BBGHAD-related truck traffic in real time from the City-owned computer. 1 I. License Plate Monitoring. On or before the first day of the third and subsequent interim nourishment sand deposition event during the term of the Project, and at the beginning of each day of that event,the BBGHAD shall provide City with the license plate numbers of all trucks hauling sand that day on BBGHD's behalf to assist City with additional monitoring and enforcement of the interim nourishment sand deposition events. The requirements of this Section shall be in addition to,and not as a substitute for computer monitoring under Section 10 or any other provision of this Agreement. 12. Penalties on Haulers who Violate Terms. The BBGHAD shall establish and enforce penalties, including monetary penalties, for any violations of the haul routes by the owners and operators of trucks engaged in Project hauling operations. Penalties shall be paid to the City,as provided in Section 13. 13. Liquidated Damages. In the event a truck engaged in the Project for the BBGHAD is determined and documented by the City as operating on a prohibited haul route as defined in Section 2,parking or staging in the City as prohibited by Section 3, or violating the terms of the emergency exception as provided in Sections 5 and 6,the BBGHAD shall pay to City the sum of$100.00 for each such documented truck trip or violation that occurs in the first ten (10) days of operation, $200.00 for each such documented truck trip violation that occurs in the eleventh(11th)through thirtieth (30th)day of operation, $250.00 for each such documented truck trip violation that 439319v2 -4- 12853-0033\1TT2830v12.doe occurs in the thirty-first(315`)through sixtieth(60th) day of operation, and$500.00 for each subsequent truck trip violation, as liquidated damages for the violation. The amounts shall be paid to City within ten (10)days of the City's submittal to BBGHAD of the evidence of the violation. This amount shall be accepted by City as liquidated damages and not as a penalty and as City's sole and exclusive remedy for damages(but City shall not be prohibited from seeking specific performance or injunctive relief in addition to obtaining such liquidated damages, as provided in Section 14.) For purposes of this Agreement a violation is documented if there is a recorded incident of the violation as detected and documented from the computer monitoring software as provided in Section 10,photographic and dated evidence collected by the City, by a copy of a Sheriff Department,California Highway Patrol or City Code Enforcement incident report or citation, or by other means sufficient to prove a violation as provided by the City to BBGHAD. The BBGHAD hereby stipulates and agrees that such amount is a reasonable estimate of damages that will be incurred by City in the event of such violation,pursuant to California Civil Code Section 1671 et seq.,and that the exact amount of such damages would be extremely difficult and impractical to determine. BBGHAD desires to limit the damages for which it might be liable for such violations of this Agreement and the Parties desire to avoid the costs and delays they would incur if a lawsuit were commenced to recover damages. The Parties acknowledge this provision by placing their initials below: BBGHAD City 14. Additional Remedies and Enforcement. In addition to the provisions of Section 13, the remedies for breach of the Agreement by City shall also include injunctive relief and/or specific performance. 15.Notice of Changes to the Project. The BBGHAD shall provide written notice to the City not less than five days after the submittal by the BBGHAD of a request to the CCC or the State Lands Commission to modify the Project in a manner that affects the use of truck haul routes,the duration of the use of those routes or the quantities of truck trips used in the Project. 16. Third Party Beneficiaries. No term or provision of this Agreement is intended to or shall be for the benefit of any person or entity not a party hereto,and no such other person or entity shall have any right or cause of action hereunder. 17. Defense and Indemnity. The BBGHAD agrees to defend, indemnify,and hold harmless City, at BBGHAD's sole expense,with counsel reasonably acceptable to City,any claim, lawsuit, or cause of action brought to challenge the City's approval of this Agreement. The BBGHAD further agrees to reimburse City for any costs and/or attorneys' fees which City may incur as a result of any such action. City may, at its sole discretion, participate in the defense of any such action at City's cost, but such participation shall not relieve the BBGHAD of its obligations under this Section. 439319v2 5- 12853-0033\1772830v12 doc 8 18. City Release of Claims. Except with respect to enforcement of the terms of this Agreement, City hereby waives and releases the BBGHAD, its officers, employees, agents, attorneys and consultants, (collectively"BBGHAD Released Parties"), and each of them,of and from any and all claims, demands, disputes, damages, liabilities, causes of action,and other claims or rights to relief, legal or equitable, of every kind and nature, whether known or unknown,past or present, which City has or may have against the BBGHAD Released Parties, arising out of, or in any way related to the Project. 19. City Waiver of Cal. Code Civ. Proc. Section 1542. City being fully aware of the meaning of Cal. Civil Code §1542, and on the risks attendant with waiver thereof, expressly waives any rights it may have, or claims to have against the BBGHAD Released Parties, or any of them, under the provisions of Cal. Civil Code §1542, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." City 20. Joint Drafting and Mutual Interpretation. This Agreement shall be construed and interpreted in a neutral manner. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties,and no rule of construction or interpretation shall apply against a particular party based on the assumption or contention that the Agreement was drafted by one of the Parties. In this regard,the provisions of Cal. Civil Code § 1654 are waived and deemed inapplicable to the interpretation of this Agreement. 21. Right to Independent Counsel. The Parties acknowledge and represent that they have had the right to and benefit of consultation with independent legal counsel and expert consultants. The Parties have read and understand the entirety of this Agreement, and have been advised as to the legal effects of this Agreement,as to, for example,their rights and obligations, and hereby willingly and voluntarily agree to every term of this Agreement. 22. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the matters addressed in it and incorporated herein, and supersedes any and all oral agreements between or among the Parties regarding the matters resolved herein, which are hereby merged into this fmal Agreement. There are no representations, covenants,or undertakings other than those expressly set forth or expressly incorporated herein. The Parties acknowledge that no Party,or any agent or attorney of any Party has made any promise, representation, or warranty whatsoever, express or implied, not contained herein to induce any other Party to 439319v2 -6- 12853A033\1772830v l2.doc 9 execute this Agreement. The Parties acknowledge that they have not executed this Agreement in reliance on any promise,representation, or warranty not specifically contained herein or expressly incorporated herein. The Parties, and each of them, fully represent and declare that they have carefully read this Agreement, and that they have voluntarily signed this Agreement. 23. Severability. Should any provision of this Agreement be declared or determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable,the invalidity, illegality,or unenforceability shall not affect any other provision of the Agreement and the remainder of the Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been included. 24. Governing Law and Venue. The validity of this Agreement and the interpretation of any of its terms or provisions shall be governed by the laws of the State of California. Any action, suit or proceeding related to,or arising from,this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 25. Change in State Law or Other Event Materially Affecting Agreement. If a change in state law occurs that materially affects the Parties' obligations or rights under this Agreement or under the Pass Through Agreement,whether such change occurs through enactment of a statute or by virtue of a final judicial decision,the Parties shall have the duty to take such actions as may be reasonably necessary to modify such agreement(s) so that the Parties' duties and rights under such agreement(s) are consistent with any such change in law. 26. Amendments or Modifications. This Agreement may be amended or modified only by the mutual agreement of the Parties and only when all Parties memorialize in writing their consent to amend or modify. 27.Notices. Any notice required to be given, except for immediate notices of the invocation of the Emergency Exception as provided in Section 5 and 6 which has its own notice provisions, shall be deemed to have been given by depositing such notice in the United States mail, postage prepaid, and addressed as follows: TO CITY: TO BBGHAD: 439319V2 -7- 12853-0033\1772830v12.doc 10 City of Moorpark Mark Goss 799 Moorpark Avenue c/o Elkins Kalt, et al Moorpark, CA 93021 2049 Century Park East, Suite 2700 Attention: City Manager Los Angeles, CA 90067 tel.: (310)699-9666 email: markchristiangoss(7a,gmail.com Kenneth A. Ehrlich Elkins Kalt et al. 2049 Century Park East, Suite 2700 Los Angeles,CA 90067 tel. (310) 746-4400 email: kehrlich@elkinskalt.com Either party may, from time to lime,by written notice to the other, designate a different address or contact person,which shall be substituted for the one above specified.Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the third(3rd) day after deposit in the United States mail. 28.No Admission of Liability.Nothing in this Agreement shall be construed as an admission of liability or wrongdoing by any Party to this Agreement or an admission of any claim against any Party hereto. 29.Effective Date. This Agreement shall become effective on the date that both parties have executed this Agreement. 30.Attorneys' Fees Provision. If any of the Parties breach any of the provisions of this Agreement,necessitating the filing of a civil action or any other proceeding to enforce any or all of the terms of this Agreement, the prevailing party may recover reasonable attorneys' fees and costs incurred in enforcing the terms and provisions of this Agreement. 31. Captions and Interpretations. Paragraph titles or captions contained in this Agreement are inserted as a matter of convenience and for reference, andin no way define, limit, extend, or describe the scope of this Agreement. 32. Counterparts. This Agreement may be signed in counterparts and the executed counterparts shall together form the executed Agreement. A facsimile version of any Parties' signature shall serve as an original thereof. 33. Copy Admissible. In any action or proceeding relating to this Agreement,the Parties stipulate that a copy of the Agreement may be admissible to the same extent as the original Agreement, unless the exceptions set forth in Section 1521 of the Cal. Evidence Code are found to be applicable. 439319v2 -8- 12853-0033\1772830v12.doc 11 34. Signatories. Each signatory warrants and represents that he or she is competent and authorized to execute this Agreement on behalf of the party for whom he or she purports to sign. IN WITNESS WHEREOF, the undersigned have executed this Agreement. City of Moorpark By: Janice S. Parvin, Mayor Attest: Maureen Benson, City Clerk Broad Beach Geologic Hazard Abatement District By: Chair of the Board Attest: Secretary 439319v2 -9- 12853-0033\1772830v12.doc 12