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HomeMy WebLinkAbout15 - Lower Newport Bay Eelgrass Restoration ProjectITEM 1s TO: Members of the Newport Beach City Council FROM: Tony Melum, Division of Harbor Resources SUBJECT: Lower Newport Bay Eelgrass Restoration Project RECOMMENDED ACTIONS: (1) Authorize the City Manager to sign a Project Cooperation Agreement and Safe Harbor Agreement substantially similar to the attached; and (2) Authorize the City's participation in the Lower Newport Bay Eelgrass Restoration Project as co- sponsors with the County of Orange and the US Army Corps of Engineers (US ACE). EXECUTIVE Eelgrass in the Lower Bay is a good thing and a bad thing. It's great for keeping SUMMARY: a healthy diversity of marine life. But since it's such a good habitat for so many "critters," it's prized by State and Federal regulatory agencies. So much so that it can be extremely difficult to legally remove eelgrass from around piers, docks, and bulkheads during repair or dredging projects. One way around the problem is to "mitigate" lost eelgrass by planting it in locations that don't require significant dredging or in -Bay construction. But planting eelgrass in "safe" locations may mean that it spreads to other locations less desirable for eelgrass. Other agencies have used what's called a "safe harbor agreement" that both protects the eelgrass where it's planted and allows a public agency to remove those eelgrass plants that may have spread beyond designated locations. This Agenda Item does two things - it authorizes the City's participation in an Eelgrass Restoration Project (to add to the Harbor's supply of eelgrass in "safe" locations) AND authorizes the development of a "Safe Harbor Agreement'' that will help the City limit the eelgrass if the eelgrass does too well (growing too far and too fast) in its new planting locations. BACKGROUND: Eelgrass (zostera marina) has been identified as a sensitive marine resource by the California Department of Fish and Game (DF &G), the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USF &W) because of the many biological attributes associated with the eelgrass community. Typically, the presence of eelgrass indicates a healthy ecosystem and contributes significantly to the habitats of a wide variety of organisms. 0 Eelgrass (zostera marina) Consequently, if an in -Bay project (pier dredging, pier replacement, seawall replacement, etc) may cause a reduction of eelgrass acreage, structure and function, the project proponent mapping survey must be done to determine how extensive the eelgrass resource is around the project and how the project will affect the eelgrass. The project proponent must identify methods to avoid disturbances or compensate for potential impacts. One method of compensation that has been investigated over the years has been mitigation as outlined in the Southern California Eelgrass Mitigation Policy (Attachment A), If eelgrass is in a location • affected by a project, the alternatives for project proponents are either not to do the project at all or to mitigate the eelgrass impacts. Mitigation is currently accomplished either on -site or off -site. On -site mitigation can be problematic. If the project causes additional shading once the structure is built, on -site mitigation is not an option. Areas that need to be periodically dredged present similar problems in that to redredge, proponents would have to do on -site mitigation continually. Most experts agree that the most viable alternative for Lower Newport Bay would be for off -site mitigation. Finding Mitigation Sites. Currently, DF &G, NMFS, and USF &W do not believe that there are any appropriate areas in the Lower Newport Bay that would sustain off -site mitigation. This situation could be remedied by implementing a proposed Lower Newport Bay Eelgrass Restoration Project (Attachment B) as drafted by the US Army Corps of Engineers (US ACE). The Restoration Project would substantiate the viability of eelgrass growth in the Lower Bay. In preparation for the Project, the City and County identified 14 sites to plant and grow eelgrass. Those were eventually narrowed to S sites (Attachment D). These eight sites, once planted and viable, could serve as enhanced habitat within Lower Newport Bay and may be potential locations for off -site mitigation. As currently planned, US ACE would administer the project with input from NMFS, USF &W, DF &G, the County of Orange and the City. The one -time cost of the project is estimated to be $300,000. The City and County shall contribute 35% . of the total project cost, approximately $105,000 split 50 /50 between the two. The USACE has determined that this requirement can be satisfied by work in kind from the non - federal sponsors and the term work shall mean work in kind that is necessary to carry out the project. This work could consist of collecting Eelgrass from designated donor beds, transporting it to an onshore assembly station, rinsing plants in sea water, fabricating individual plants into planting units, transporting planting units to the transplant site, etc. The non - federal sponsors shall also receive credit towards their share of total project cost for the value of the land easements, right -of -way and suitable borrow and dredged or excavated material disposal areas that the non - federal sponsor must provide pursuant to the agreement. Based on the above, the USACE has approved a credit of $105,000 for implementation of work in kind and land value by the non - federal sponsors. Ongoing maintenance costs are estimated at approximately $10,000 per year. The City and County (with direct assistance from harbor permittees using the Project sites for off -site mitigation) will be wholly responsible for maintenance. This can also be satisfied with work in kind. Once the sites are transplanted from donor beds in Lower Newport Bay, the success of the project would be determined by post - construction monitoring Transplanted sites would be monitored and assessed in accordance with the Southern California Eelgrass Mitigation Policy. A Safe Harbor Agreement - Protecting Both Eelgrass and Harbor Uses. The City's participation in the Eelgrass project was contingent upon the City and the County negotiating what's called a Safe Harbor Agreement with the regulatory agencies (Coastal Commission, NMFS, USF &W, DF &G). A Safe Harbor Agreement provides an opportunity for a property owner -- such as the City or County - to use their property in a way that benefits fish, wildlife and plants (particularly endangered species) without being subject to increased property - use restrictions. For instance, should the newly planted Eelgrass beds propagate beyond the intended restoration zones, the City and County could remove this Eelgrass and the permitting agencies would be obligated to issue permits pursuant to the Federal Endangered Species Act, the California Endangered Species Act and the Coastal Act and all related statutes, rules and regulations authorizing maintenance dredging, pier and float construction and other activities incidental to ensuring safe navigation and /or safe berthing facilities. The Safe Harbor Agreement (Attachment C) was prepared by the City Attorney and has been submitted to DF &G, NMFS and USF &W. These agencies have essentially agreed to the draft agreement, but it must be submitted to their legal staff for final approval. Once it has been approved by those agencies in final form, it will be returned to the City for signature by the City Manager and then included as an attachment to the project cooperative agreement. Once these agreements have been signed by all parties, planting will begin in those eight areas indicated on the attached map (Attachment D). The Project Cooperation Agreement between the Army Corps of Engineers and the City of Newport Beach has been previously reviewed by the City Attorney and approved as to form. ATTACHMENTS: Attachment A — Southern California Eelgrass Mitigation Policy Attachment B - Proposed Project Cooperation Agreement Attachment C - Proposed Safe Harbor Agreement Attachment D - Planting Bed Map p�TTr�cqMr,,� P National Marine Fisheries Service Southwest Region. Southern California Eelgrass Mitigation Policy S�onc or c 0 July 31, 1991 "PATE, OP SOUTHERN CALIFORNIA EELGRASS MITIGATIONTOLICY (Adopted July 31, 1991) Eelgrass.(Zostera marina) vegetated.areas function as important habitat for a variety of fish and other wildlife. In order to standardize and maintain a consistent policy regarding mitigating adverse impacts to eelgrass resources, the following policy has been developed by the Federal and State resource agencies (National Marine Fisheries Service, U.S. Fish and Wildlife Service, and the California Department of Fish and Game). For clarity, the following definitions apply. "Project" refers to work performed on -site to accomplish the applicant's purpose. "Mitigation" refers to work performed to compensate for any adverse impacts caused by the "project ". "Resource agencies" refers to National Marine Fisheries Service, U.S. Fish and Wildlife Service, and the California Department of Fish and Game. Mitigation Need. Eelgrass transplants shall be considered only after the normal provisions and policies regarding avoidance and minimization, as addressed in the Section 404 Mitigation Memorandum of Agreement between the Corps of Engineers and Environmental. Protection Agency, have been pursued to the fullest extent possible prior to the development of any mitigation program. 2. Mitigation Mao. The project sponsor shall map thoroughly the area, distribution, density and relationship to depth contours of any eelgrass beds likely to be impacted by project construction. This includes areas immediately adjacent to the project site which have the potential to be indirectly or inadvertently impacted as well as areas having the proper depth and substrate requirements for eelgrass but which currently lack vegetation. Protocol for mapping shall consist of the following format: 1) Coordinates Horizontal datum - Universal Transverse Mercator (UTM), NAD 83, Zone 11 Vertical datum - Mean Lower Low Water (MLLW), depth in feet. 2) Units Transects and grids in meters. Area measurements in square meters/hectares. All mapping efforts must be completed during the active growth phase for the vegetation (typically March through October) and shall be valid for a period of 120 days with the exception of surveys completed in October. A survey completed in October shall be valid until the resumption of active growth (i.e., March 1). After project construction, a post - project survey shall be completed within 30 days. The actual area of impact shall be determined from this survey. Southem Califomia Eelgrass Mitigation Policy 2 3. Mitimfion Site. The location of eelgrass transplant mitigation shall be in areas similar to those where the initial impact occurs. Factors such as, distance from project, depth, sediment type, distance from ocean connection, water quality, and currents are among' those that should be considered in evaluating potential sites. 4. Mitigation Size. In the case of transplant mitigation activities that occur concurrent to the project that results in damage to the existing eelgrass resource, a ratio of 1.2 to 1 shall apply. That is, for each square meter adversely impacted, 1.2 square meters of new suitable habitat, vegetated with eelgrass, must be created. The rationale for this ratio is based on: 1) the time (i.e.,generally three years) necessary for a mitigation site to reach full fishery utilization and 2) the need to offset any productivity losses during this recovery period within five years. Transplant mitigation completed three years in advance of the impact (i.e., mitigation banks) will not incur the additional 20% requirement and, therefore, can be constructed on a one -for -one basis. However, all other monitoring requirements. (outlined below) remain the same irrespective of when the transplant is completed. Project proponents should consider increasing the size of the required mitigation area by 20 -30% to provide greater assurance that the success criteria, as specified in Section 9, will be met. Mitigation Technique. Techniques for the construction and planting of the eelgrass mitigation site shall be consistent with the best available technology at the time of the project. Donor material shall be taken from area of direct impact whenever possible, but also should include a minimum of two additional distinct sites to better ensure genetic diversity of the donor plants. Written permission to harvest donor plants must be obtained from the California Department of Fish and Game. Plantings should consist of bare-root bundles consisting of 8 -12 individual turions. Specific spacing of transplant units shall be at the discretion of the project sponsor. However, it is understood that whatever techniques are employed, they must comply with the stated requirements and criteria. 6. Mitigation Timing. For off -site mitigation, transplanting must be started prior to or concurrent to the start-up of the project resulting in the impact to the eelgrass bed. For on -site mitigation, transplanting should be postponed when construction work is likely to impact the mitigation. However, transplanting of on -site mitigation must be started no later than 45 days after completion of in -water construction activities, unless this would occur outside of the growing period or a greater site stabilization period is deemed warranted by the resource agencies. A construction schedule which includes specific starting and ending dates shall be provided to the resource agencies. Southem California Eelgrass Mitlgatiou Policy 3 Mitigation Delay. Any delays in the implementation of required eelgrass mitigation work shall result in a seven percent increase of the areal extent of mitigation required per month. This increase in mitigation obligation is necessary to ensure that all productivity losses incurred during this period are sufficiently offset within five years. 8. Mitieation Monitoring. Monitoring the success of eelgrass mitigation shall be required for a period of five years for most projects. Monitoring activities shall determine the percent coverage and density of plants at the transplant site and shall be conducted at 3, 6, 12, 24, 36, 48, and 60 months after completion of the transplant. All monitoring work must be conducted during the active vegetative growth period and shall avoid the winter months of November through February. Sufficient flexibility in the scheduling of the 3 and 6 month surveys shall be allowed in order to ensure the work is completed during this active growth period. Additional monitoring beyond the 60 month period may be required in those instances where stability of the proposed transplant site is questionable. The monitoring of an adjacent or other acceptable control area (subject to the approval of there source agencies) to account for any natural changes or fluctuations in bed width or density must be included as an element of the overall program. A monitoring schedule that indicates when each of required monitoring events will be completed shall be provided to the resource agencies prior to or concurrent with the initiation of the mitigation. Monitoring reports shall be provided to the resource agencies within 30 days after the completion of each required monitoring period. 9. Mitigation Success. Criteria for determination of transplant success shall be based upon a comparison of vegetation coverage (area) and density ( turions per square meter) between the project and mitigation sites. Extent of vegetated cover is defined as that area where eelgrass is present and where gaps in coverage are less than one meter between individual turions clusters. Density of shoots is defined by the number of turions per area present in representative samples within the control or transplant bed. Specific criteria are as follows: a. a minimum of 70 percent areal coverage and 30 percent density after the first year. b. a minimum of 85 percent areal coverage and 70 percent density after the second year. C. a sustained 100 percent areal coverage and at least 85 percent density for the third, fourth and fifth years. Southem Califomia Eelgms Mitigation Polity 4 Should the required eelgrass transplant fail to meet the established criteria, then a Supplementary Transplant Area (STA) shall be constructed, if necessary, and planted. The size of this STA shall be determined by the following formula: STA = MTA x QAt + D4 - JAc + DcD MTA = mitigation transplant area. At = transplant deficiency or excess in area of coverage criterion ( %) Dt = transplant deficiency in density criterion ( %). Ac = natural decline in area of control ( %). Dc = natural decline in density of control (%). Three conditions apply: 1) For years 2 -5, an excess of only up to 30% in area of coverage over the stated criterion with a density of at least 60% as compared to the control area may be used to offset any deficiencies in the density criterion.. . . 2) Densities which exceed any of the stated criteria shall not be used to offset any deficiencies in area of coverage. 3) Any required STA must be initiated within 120 days following the monitoring event that identifies a deficiency in meeting the success criteria. Any delays beyond 120 days in the implementation of the STA shall be subject to the penalties as described in Section 7. 10. mitigation Bank. Any mitigation transplant success that, after five years, exceeds the mitigation requirements, as defined in Section 9., may be considered as credit in a "mitigation bank ". Establishment of any "mitigation bank" and use of any credits accrued from such a bank must be with the approval of the resource agencies and be consistent with the provisions stated in this policy. Monitoring of any approved mitigation bank shall be conducted on an annual basis until all credits are exhausted. 11. Exclusions. Placement of a single pipeline, cable, or other similar utility lime across an existing eelgrass bed with an impact corridor of no more than 12 inches wide may be excluded from the provisions of this policy with concurrence of the resource agencies. After project construction, a post - project survey shall be completed within 30 days and the results shall be sent to the resource agencies. The actual area of impact shall be determined from this survey. An additional survey shall be completed after 12 months to insure that the project or impacts attributable to the project have not exceeded the allowed 12 inch corridor width. Should the post - project or 12 month survey demonstrate a loss of eelgrass greater than the 12 inch wide corridor, then mitigation pursuant to provisions 1 -10 of this policy shall be required. (revised S/25i92, 4,129i96, 12/1? 96. 6/16/97) oc. oo, of in:, ia.00 me c,o soc acia nuc u•uume",.et xes or February 2001 0 s� PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE COUNTY OF ORANGE AND THE CITY OF NEWPORT BEACH FOR THE LOWER NEWPORT BAY EELGRASS RESTORATION PROJECT tgJ UUL {IT I-w -14MEW 6 THIS AGREEMENT is entered into this day of 2000 by and between the DEPARTMENT OF THE ARMY (hereinafter the "Government "), represented by the U.S. Army Engineer for the Los Angeles District (hereinafter the "District Engineer ") and the County of Orange and the City of Newport Beach (hereinafter the "Non- Federal Sponsors "), represented by the Chairman of the 'Board of Supervisors of Orange County and the Mayor of the City of Newport Beach. WITNESSETH, THAT: WHEREAS, this Project is authorized by Section 206 cf the Water Resources Development Act of 1996, Public Law 104 -303; WHEREAS, Section 206 authorizes the Secretary of the Army to carry out an aquatic ecosystem restoration and protection project if the Secretary determines that the project will improve the quality of the environment, is in the public interest, and is cost - effective; WHEREAS, the Government and the Non - Federal Sponsor desire to enter into a Project Cooperation Agreement for implementation of the Lower Newport Bay Eelgrass Restoration Project (hereinafter the "Project ", as defined in Article I.E. of this Agreement); WHEREAS, Section 206(b) of the Water Resources Development Act of 1996, Public Law 104 -303, specifies the cost- sharing requirements applicable to this Project; WHEREAS, Section 206(c) of the Water Resources Development Act of 1996, Public Law 104 -303, provides that the Secretary of.the Army shall not commence'construction of any project, or separable element thereof, under the Section 206 authority, until each non - Federal sponsor has entered into a binding agreement to pay the non - Federal i V1,U6'01 1'HL 23:57 Ml 21J 452 4219 tnPlr0rimental KeS tar 10 003 share of the cost's of construction required by Section 206(b) and to pay 100 percent of any operation, maintenance, and replacement and rehabilitation costs with respect to the project in accordance with regulations prescribed by the Secretary; WHEREAS the Nor.- Federal Sponsors desires to perform certain work (hereinafter the "work -in- kind ", as defined in Article I.L. of this Agreement) which is a part of the Project; WHEREAS, the Government and Non - Federal Sponsors have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost - sharing and financing of the implementation of the Project in accordance with the terms of this Agreement. NOW, THEREFORE, the Government and the Non - Federal Sponsors agree as follows: ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS For purposes of this Agreement: A. The tern "Project" shall mean a pilot project to investigate restoration of eelgrass in Lower Newport Bay as generally described in the Lower Newport Say Harbor Aquatic Ecosystem Restoration Study Section 206 Preliminary Restoration Plan, dated January 1999, and approved by the Commander, U.S. Army Corps of Engineers, South Pacific Division on 20" April 1999. B. The term "total project costs" shall mean all costs incurred by the Non - Federal Sponsors and the Government in accordance with the terms of this Agreement directly related to implementation of the Project. Subject to the provisions of this Agreement, the term shall include, but is mot necessarily limited to, feasibility phase planning costs; all engineering and design costs, including those incurred in the feasibility phase; the costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XV.A. of this Agreement; the costs incurred by the Government for clean -up and response in accordance with Article XV.C. of this Agreement; costs of historic preservation activities in accordance with Article XVIII.A. of this Agreement; actual implementation costs; supervision and administration costs; costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; costs of contract dispute settlements or awards; the value of lands, easements, rights =of -way, relocations, and suitable borrow and dredged or excavated material disposal areas for which the Government affords credit in accordance with Article IV of this Agreement; and costs of'audit in accordance with Article X of this Agreement. The term does not include any costs for operation, maintenance, repair, replacement, or rehabilitation; any costs due 2 U21'Gb-U1 THC 13:55 FAA 213 452 4219 Environmental Res Br to betterments; or any colts of dispute rescluzion under Article VII of this Agreement. C. The term "financial obligation for implementation^ shall mean a financial obligation of the Government, or a financial obligation of the Non-Federal Sponsors, other than an obligation pertaining to the provision of lands, easements, rights -of -way, relocations, and borrow and dredged or excavated material disposal areas, that results or would result.in a cost that is or would be included in total project costs. D. The term "implementation" shall mean all actions required to carry out the Project. E. The term "non - Federal proportionate share" shall mean the ratio of the Non - Federal Sponsors' total cash contribution required in accordance with Article 1I.D.2. of this Agreement to total financial obligations for implementation as projected by the Government. F. The term "period of implementation" shall mean the time from the effective date of this Agreement to the date that the District Engineer notifies the Non - Federal Sponsors in writing of the Government's determination that implementation of the Project is complete. G. The term "highway" shall mean any public highway, roadway, street, or way, including any bridge thereof. H. The term "relocation." shall mean providing a functionally equivalent facility to the owner of an existing utility, cemetery, highway or other public facility, or railroad when such action is authorized in accordance with applicable legal principles of just compensation. Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant removal of the affected facility or part thereof. I. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins or. October 1 and ends on September 30. S. The term "functional portion of the Project" shall mean a portion of the Project that is suitable for tender to the Non - Federal Sponsors to operate and maintain in advance of completion of the entire Project. For a portion of the Project to be suitable for tender, the District Engineer must notify the Non - Federal Sponsors in writing of the Government's determination that the 'portion of the Project is complete and can function independently and for a useful purpose, although the balance of the Project is not complete. 3 W 004 105 "VI '1'HU 13:5V 1QA_1 :13 45Z "19 Enviroamentai lees dr Low) "a K. The term "betterment" shall mean a change is the design and construction of an element of the Project resulting from the application of standards that the Government determines exceed those that the Government would otherwise apply for accomplishing the design and construction of that element. L. The term "work -in -kind" shall mean work -in -kind that is necessary to carryout the project. The work consists of collecting eelgrass from designated donor beds, transporting it to an on -shore assembly station., rinsing plants in seawater, fabricating individual plants into planting units, transporting planting units to the transplant site, planting and anchoring the planting units in the transplant site, and monitoring all sites at 6, 12, and 36 months, all under the supervision of a qualified individual(s7 hired for the purpose of supervising this work, as approved by the Lower Newport Bay Harbor Aquatic Ecosystem Restoration Study Section 206 Preliminary Restoration Plan in a Memorandum dated 5 February 1999. Failed transplants are not to be replaced. The work -in -kind includes implementation of the authorized improvements as well as planning, engineering, design, supervision and administration, and other activitites associated with implementation, but does not include the implementation of betterments or the provision of lands, easements, rights -of -way, relocations; or suitable borrow and dredged or excavated material disposal areas associated with the work -in -kind. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON - FEDERAL SPONSORS A. The Government, subject to the availability of funds and using those funds and funds provided by the Non - Federal Sponsors, shall expeditiously implement the Project, applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. 1. The Government shall afford the Non - Federal Sponsors the opportunity to review and comment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. The Government shall not issue the solicitation for the first contract for implementation until the Non- Federal Sponsors have confirmed in writing their willingness to proceed with the Project. To the extent possible, the Government shall afford the Non - Federal Sponsors the opportunity to review and comment on all contract modifications, including chance orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the Non - Federal Sponsors with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also n _.. V1 11 ..11,. ix 11 ....1 11J YJG `1D G1l111 V11111C111a1 .C* 01' co:±i-nent oa all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non - Federal Sponsors, but the contents of solicitations, award of contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the Government. 2. Throughout the period of implementation, the District Engineer shall furnish the Non - Federal Sponsors with a copy of the Government's Written Notice of Acceptance of Completed Work for each contract for the Project. 3. Notwithstanding paragraph A.1. of this Article, if, upon the award of any contract for implementation of the Project, cumulative financial obligations for implementation would exceed S3D0,000.00, the Government and the Non - Federal Sponsors agree to defer award of that contract and all subseovent contracts for implementation of the Project until such time as the Government and the Non - Federal Sponsors agree to proceed with further contract awards for the Project, but in no event shall the award of contracts be deferred for more than three years. Notwithstanding this general provision for deferral of contract awards, the Government, after consultation with the Non - Federal Sponsors, may award a contract or contracts after the Assistant Secretary of the Army (Civil Works) makes a written determination that the award of such contract or 'contracts must proceed in order to comply with law or to protect life or property from imminent and substantial harm. B. The Non- Federal Sponsors may request the Government to accomplish betterments. Such requests shall be in writing and shall describe the betterments requested to be accomplished, If the Government in its sole discretion elects to accomplish the requested betterments or any portion thereof, it shall so notify the Non - Federal Sponsors in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non - Federal Sponsors shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article VI.C. of this Agreement. C. When the District Engineer determines that the entire Project is complete or that a portion of the Project has become a functional portion of the Project, the District Engineer shall so r_orifv the Non - Federal Sponsors in writing and furnish the Non - Federal Sponsors with an Operation, Maintenance, Repair,. Replacement, and Rehabilitation Manual (hereinafter the "014RR &R Manual ") and with copies of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project or 5 l('J U U 0 \•u V9 %V4 InL. 1Q.VC rnA cio xe< Yc1J n1l "PUM11111LBL RCS or, {E!UUI the functional portion of the Project that have not been provided previously. Upon such notification, the Non - Federal Sponsors shall operate, maintain, repair, replace, and rehabilitate the entire Project or the functional portion of the Project in accordance with Article VIII of this Agreement. D. The Non - Federal Sponsors shall contribute 35 percent of total project costs, split 50 -50 percent between the two sponsors, in accordance with the provisions of this paragraph. 1. In accordance with Pxticle III of this Agreement, the Non - Federal Sponsors shall provide all lands, easements, rights -of- way, and suitable borrow and dredged or excavated material disposal areas that the Government determines the Non - Federal Sponsors must provide for the implementation, operation, and maintenance of the Project, and shall perform or ensure performance of all relocations that the Government determines to be necessary for the implementation, operation, and of the Project. 2. If the Government projects that the value of the Non - Federal Sponsors' contributions under paragraph D.1. of this Article and Articles V, X, and }:V.A. of this Agreement will be less than 35 percent of total project costs, the Non - Federal Sponsors shall provide an additional cash contribution, in accordance with Article VI.B. of this Agreement, in the amount necessary to make the Non - Federal Sponsors' total contribution equal to 35 percent of total project costs. 3. If the Government determines that the value of the Non - Federal Sponsors' contributions provided under paragraphs D.1. and D.2. of this Article and Articles V, X, and XV.A. of this Agreement has exceeded 35 percent of total project costs, the Government, subject to the availability of funds, shall reimburse the Non - Federal Sponsors for any such value in excess of 35 percent of total project costs. After such a determination, the Government, in its sole discretion, may provide any remaining Project lands, easements, rights -of -way, and suitable borrow and dredged excavated material disposal areas and perform any remaining Project relocations on behalf of the Non - Federal Sponsors. Notwithstanding the provision of lands, easements, rights -of -way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government under this paragraph, the Non- Federal Sponsors shall be responsible, as between the Government and the Nor. - Federal Sponsors, for the costs of cleanup and response in accordance with Article XV.C. of this Agreement. 4. The Government has determined that the work -in -kind is compatible with the Project and has approved a credit in the estimated amount of $105,000 for implementation of such work by the Non - Federal Sponsors. The affording of such credit shall be subject I v♦ vv. v+ + \ \� +'\vu \.'\�\ r+u '\ur '\r +u \. \ \. + \V \ \IIICLLI.6+ \.CC U\ to an on -site inspecticn by the Government to verify that the work was accomplished in a satisfactory manner and is suitable for inclusion in the Project. The actual amount of credit shall be subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. To afford such credit, the Government shall apply the credit amount toward any additional cash contribution required under paragraph D.2. of this Article. The Non - Federal Sponsors shall not receive credit for any amount in excess of such additional cash contribution, nor shall the Non - Federal Sponsor be entitled to any reimbursement for any excess credit amount. In no event shall the Non-Federal Sponsors perform work -in -kind that would result in either the credit afforded under this paragraph exceeding 100 percent of the Non - Federal Sponsors' share of total project costs or the credit afforded under this paragraph, plus the value of lands, easements, rights -of -way, relocations, and suitable borrow and dredged or excavated material disposal areas for which the Government affords credit in accordance with Article IV of this Agreement, exceeding 35 percent of total project costs. E. The Non- Federal Sponsors may request the Government to provide lands, easements, rights -of -way, and suitable borrow and dredged or excavated material disposal areas or perform relocations on behalf of the Non - Federal Sponsors. Such requests shall be in writing and shall describe the services requested to be performed. If in its sole discretion the Government elects to perform the requested services or any portion thereof, it shall so notify the Non - Federal Sponsors in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Nor-Federal Sponsors shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article VI.C. of this Agreement. Notwithstanding the provision of lands, easements, rights -of -way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government under this paragraph, the Non - Federal Sponsors shall be responsible, as between the Government and the Non- Federal Sponsors, for the costs of cleanup and response in accordance with Article XV.C. of this Agreement. F. The Government shall perform a final accounting in accordance with Article VI.D. of this Agreement to determine the contributions provided by the Non - Federal Sponsors in accordance with paragraphs B., D., and E. of this Article and Articles V, X, and XV.A. of this Agreement and to determine whether the Non - Federal Soonsors have met their obligations under paragraphs B., D., and E. of this Article. Fl WJ VVO vt. ..,. v1 iDL a't. v't da? L1J 'tJC "..an Gill ll'VIII:ICIILMI RCS Df' G. The Non- Federal Sponsors shall not use Federal funds to meet its share of total project costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. ARTICLE III - LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW 91 -646 COMPLIANCE A. The Government, after consultation with the Non - Federal Sponsors, shall determine the lands, easements, and rights -of -way required for the implementation, operation, and of the Project, including those required for relocations, borrow materials, and dredged or excavated material disposal. The Government in a timely manner shall provide the Non - Federal Sponsors with general written descriptions, including maps as appropriate, of the lands, easements, and rights -of -way that the Government determines the Non - Federal Sponsors must provide, in detail sufficient to enable the Non- Federal Sponsors to fulfill their obligations under this paragraph, and shall provide the Non- Federal Sponsors with a written notice to proceed with acquisition of such lands, easements, and rights-of-way. Prior to the end of the period of implementation, the Noa-Federal Sponsors shall acquire all lands, easements, and rights -ef -way set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each construction contract, the 1on-Federal Sponsors shall provide the Government with authorization for entry to all lands, easements, and rights -of -way the Government determines the Non - Federal Sponsors must provide for that contract. The Non - Federal Sponsors shall ensure that lands, easements, and rights -of -way that the Government determines to be required for the operation and maintenance of the Project and that were provided by the Non-Federal Sponsors are retained in public ownership for uses compatible with the authorized purposes of the Project. B. The Government, after consultation with the Non - Federal Sponsors, shall determine the improvements required on lands, easements, and rights -of -way to enable the proper disposal of dredged or excavated material associated with the implementation, operation, and maintenance of the Project. Such improvements may include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de- watering pumps and pipes. The Government in a timely manner shall provide the Non - Federal Sponsors with general written descrip tions of such improvements in detail sufficient to enable the Non - Federal Sponsors to fulfill *_heir obligations under this paragraph, and shall provide the Non - Federal Sponsors with a written notice to proceed with construction of such improvements.' Prior to the end of the period of implementation, the Non - Federal Sponsors shall provide all improvements set forth in such descriptions. Furthe- -more, prior to issuance of the solicitation for each Government construction contract, the Non - Federal Sponsors shall 8 IQ; JUM UL /UG /U1 1riU i4suo rAA Z,, 40;: 4Lle Cn1'ironmenrai Res fir UlU prepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in accordance with the approved plans and specifications. C. The Government, after consultation with the Non - Federal Sponsors, shall determine the relocations necessary for the implementation, operation, and of the Project, including those necessary to enable the removal of borrow materials and the proper disposal of dredged or excavated material. The Government in a timely manner shall provide the Non - Federal Sponsors with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the Non- Federal Sponsors to fulfill their obligations under this paragraph, and shall provide the Non - Federal Sponsors with a written notice to proceed with such relocations. Prior to the end of the period of implementation, the Non- Federal Sponsors shall perform or ensure the performance of all relocations as set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non - Federal Sponsors shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that contract. D. The Non- Federal Sponsors in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the value of any contribution provided pursuant to paragraphs A., B., or C. of this Article. Upon receipt of such documents the Government, in accordance with Article IV of this Agreement and in a timely manner, shall determine the value of such contribution, include such value in total project costs, and afford credit for such value toward the Non - Federal Sponsors' share of total project costs. E. The Non - Federal Sponsors shall comply with the applicable provisions of the Uniform Relocation Assistance and Peal Property Acquisition Policies Act of 1970, Public Law 91 -646, as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100 -17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights -of -way required for the implementation, operation, and maintenance of the Project, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. 9 Il4-Ub/111 -Hl' 14:V; VA4 Gl:f 4JL 4L1A hm'1ronwental m6 Hr 1yj 011 ARTICLE IV - CREDIT FOR LANDS, RELOCATIONS, AND DISPOSAL AREAS A. The Non - Federal Sponsors shall receive credit toward their share of total project costs for the value of the lands, easements, rights -of -way, and suitable borrow and dredged or excavated material disposal areas that the Non - Federal Sponsor must provide pursuant tc Article III of this Agreement, and for the value of the relocations that the Non - Federal Sponsors must perform or for which they must ensure performance pursuant to Article III of this Agreement. However, the Non - Federal Sponsors shall not receive credit for the value of any lands, easements, rights -of -way, relocations, or borrow and dredged or excavated material disposal areas that have been provided previously as an item of cooperation for another Federal project. The Non- Federal Sponsors also shall not receive credit for the value of lands, easements, rights -of -way, relocations, or borrow and dredged or excavated material disposal areas to the extent that such items are provided using Federal funds unless the Federal granting agency verifies in writing that such credit is expressly authorized by statute. B. For the sole purpose of affording credit in accordance with this Agreement, the value of lands, easements, and rights -of -way, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, shall be the fair market value of the real property interests, plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this paragraph. 1. Date of Valuation. The fair market value of lands, easements, or rights -of -way owned by the Non - Federal Sponsors on the effective date of this Agreement shall be the fair market value of such real property interests as of the date the Non - Federal Sponsors provide the Government with authorization for entry thereto. The fair market value of lands, easements, or rights -of -way acquired by the Non - Federal Sponsors after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired. 2. General Valuation Procedure. Except as provided in paragraph B.3. of this Article, the fair market value of land's, easements, or rights -of -way shall be determined in accordance with paragraph B.2.a. of this Article, unless thereafter a different amount is determined to represent fair market value.in accordance with paragraph B.2.b. of this Article. a. The Non - Federal Sponsors shall obtain, for each real property interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non - Federal Sponsors and the Government. The appraisal must be prepared in accordance with the applicable rules of Just compensation, as specified by the 10 UZI UO IV iui: 14:ua Z10 4JL 4ziv niwironmenzal Kes ur 0 Q12 Government. The fair market value shall be the amount set forth ir. the Non - Federal Sponsors' appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non-Federal Sponsors' appraisal, the Non- Federal Sponsors may obtain a second appraisal, and the fair market value shall be the amount se: forth in the Non - Federal Sponsors' second appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non - Federal Sponsors' second appraisal, or the Non - Federal Sponsors choose not to obtain a second appraisal, the Government shall obtain an appraisal, and the fair market value shall be the amount set forth in the Governmert's appraisal, if such appraisal is approved by the Non- Federal Sponsors. In the event the Non - Federal Sponsors do not approve the Government's appraisal, the Government, after consultation with the Non - Federal Sponsors, shall consider the Government's and the Non - Federal Sponsors' appraisals and determine an amount based thereon, which shall be deemed to be the fair market value. b. Where the amount paid or proposed to be paid by the Non- Federal Sponsor for the real property interest exceeds the amount determined pursuant to paragraph B.2.a_ of this Article, the Government, at the request of the Non - Federal Sponsors, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the Non- Federal Sponsors, may approve in writing an amount greater than the amount determined pursuant to paragraph B.2.a. of this Article, but not to exceed the amount actually paid or proposed to be paid. If the 'Government approves such an amount, the fair market value shall be the lesser of the approved amount or the amount paid by the Non - Federal Sponsors, 'but no less than the amount determined pursuant to paragraph B.2.a. of this Article. 3. Eminent Domain Valuation Procedure. For lands, easements, or rights -of -way acquired by eminent domain proceedings instituted after the effective date of this Agreement, the Non - Federal Sponsors shall, prior to instituting such proceedings, submit to the Government notification in writing of their intent to institute such proceedings and an appraisal of the specific real property interests to be acquired in such proceedings. The Government shall have 60 days after receipt of such a notice and appraisal within which to review the appraisal, if not previously approved by the Government in writing. a. If the Government previously has approved the appraisal in writing, or if the Government provides written approval of, or takes no action on, the appraisal within such 60 -day period, the Non - Federal Sponsors shall use the amount set forth in such appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding.' 11 VZ /V6 /Vi '1RU 14:1V CAA 214 4JZ 4Ziy tnvlronmenLai Res Br 1Q 013 b_ If the Government provides written disapproval of the appraisal, including the reasons for disapproval, within such 60-day period, the Government and the Non - Federal Sponsors shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Government's written disapproval. If, after such good faith consultation, the Government and the Non - Federal Sponsors agree as to an appropriate amount, then the Non - Federal Sponsors shall use that amount as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. If, after such good faith consultation, the Government and the Non - Federal Sponsors cannot agree as to an appropriate amount, then the Non - Federal Sponsors may use the amount set forth in their appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. C. For lands, easements, or rights -of -way acquired by eminent domain proceedings instituted in accordance with sub- paragraph B.3. of this Article, fair market value shall be either the amount of the court award for the real property interests taken, to the extent the Government determined such interests are required for the implementation, operation, and of the Project, or the amount of any stipulated settlement or portion thereof that the Government approves in writing. 4. Incidental Costs. For lands, easements, or rights -of- way acquired by the Non - Federal Sponsors ;within a five -year period preceding the effective date of this Agreement, or at any time after the effective date cf this Agreement, the value of the interest shall include the documented incidental costs of acquiring the interest, as determined by the Government, subject to an audit in accordance with Article X.C_ of this Agreement to determine reasonableness, allocability, and allowability of costs. Such incidental costs shall include, but not necessarily be limited to, closing and title ccsts, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for payment of any Public Law 91 -640' relocation assistance benefits provided in accordance with Article III.E. of this Agreement, C. After consultation with the Non - Federal Sponsors, the Government shall determine the value of relocations in accordance with the provisions of this paragraph. 1_ For a relocation other than a highway, the value shall be only that portion of relocation costs that the Government determines is necessary to provide a functionally equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any removed items. 12 VG%VO /u1 1n 14:11 Yid e10 401 4L1J Rus or LP.J UIe 2. For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of California world 'apply under similar conditions of geography and traffic load, reduced by the salvage value of any removed items. 3. Relocation costs shall include, but not necessarily be limited to, actual costs of performing the relocation; planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with performance of the relocation, but shall not include any costs due to betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. Relocation costs shall be subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. D. The value of the improvements made to lands, easements, and rights -cf -way for the proper disposal of dredged or excavated material shall be the costs of the improvements, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. Such costs shall include, but not necessarily be limited to, actual costs of providing the improvements; planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with providing the improvements, but shall not include any costs due to betterments, as determined by the Government. ARTICLE V - PROJECT COORDINATION TEAM A. To provide for consistent and effective communication, the Non- Federal Sponsors and the Government, not later than 30 days after the effective date of this Agreement, shall appoint named senior representatives to a Project Coordination Team. Thereafter, the Project Coordination Team shall meet regularly until the end of *_he period of implementation. The Government's Project Manager and a counterpart named by the Non - Federal Sponsors shall co -chair the Project Coordination Team. P. The Government's Project Manager and the Non - Federal Sponsors' counterpart shall keep the Project Coordination Team informed of the progress of implementation and of significant pending issues and actions, and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. '_3 1HU 14:16 V.9d X16 YJ-' 4 _'1V C.mironmenuai heb nr C. Until the end of the period of implementation, the Project Coordination Team shall generally oversee the Project including issues related to design; plans and specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and mod_fications; contract costs; the Government's cost projections; final inspection of the entire Project or functional portions of the Project; preparation of the proposed OMRR&R Manual; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, replacement, and rehabilitation of the Project, and other related matters. D. The Project Coordination Team may make recommendations that it deems warranted to the District Engineer on matters that the Project Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Coordination Team. The Government, having the legal authority and responsibility for implementation of the Project, has the discretion to accept, reject, or modify the Project Coordination Team's recommendations. E. The costs of participation in the Project Coordination Team shall be = ncluded in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE VI - METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties and current projections of total project costs and costs due to betterments. At least quarterly, the Government shall provide the Non - Federal Sponsors with a report setting forth all contributions provided to date and the current projections of total project costs, of total costs due' to betterments, of the components of total project costs, of each party's share of total project costs, of the Non - Federal Sponsors' total cash contributions required in accordance with Articles II.B., II.D., and II.E. of this Agreement, and of the non - Federal proportionate share. On the effective date of this Agreement, total project costs are projected to be $300,000, and the Non - Federal Sponsors' cash contribution required under Article II.D. of this Agreement is projected to be $105,000. Such amounts are estimates subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Non - Federal Sponsors. B. The Non - Federal Sponsors shall provide the cash contribution required under Article II.D.2. of this,Agreement in accordance with the following provisions: Not less than 30 calendar days prior to the scheduled date for issuance of the solicitation for the first construction contract, the Government shall notify the Non- Federal 14 C., U1Z, UG!UGl U1 1D1 1.5.1D Cr1A L1J 4J< 4G1Yf GIf LLI'UILIICI1L82 KCS Df' C. UUL Sponsors in writing of such scheduled date and the funds the Government determines to be required from the Non- Federal Sponsors to meet their projected cash contribution under Article II.D.2. of *_his Agreement. Not later than such scheduled date, the Non - Federal Sponsors shall provide the Government with the full amount of the required funds by delivering a check payable to "FAO, USAED, Los Angeles District" to the District Engineer. The Government shall draw from the funds provided by the Non - Federal Sponsors such sums as the deems necessary to cover: (a) the non - Federal proportionate share of financial obligations for implementation incurred prior to commencement of the period of implementation; and (b) the non - Federal proportionate share of financial obligations for imolementa *_ion as they are incurred during the period of implementation. In the event the Government determines that the Non - Federal Sponsors must provide additional funds to meet the Non - Federal Sponsors' cash contribution, the Government shall notify the Non - Federal Sponsors in writing of the additional funds required. Within 60 calendar days thereafter, the Nor. - Federal Sponsors shall provide the Government with a check for the full amount of the additional required funds. C. In advance of the Government incurring any financial obligation associated with additional work under Article II.B. or Ii.E. of this Agreement, the Non - Federal Sponsors provide the Government with the full amount of the funds required to pay for such additional work by delivering a check payable to "FAO, USAED, Los Angeles District" to the District Engineer. The Government shall draw from the funds provided by the Non - Federal Sponsors such sums as the Government deems necessary to cover the Government's financial obligations for such additional work as they are incurred. In the event the Government determines that the Non- Federal Sponsors must provide additional funds to meet their cash contribution, the Government shall notify the Non - Federal Sponsors in writing of the additional funds required. Within 30 calendar days thereafter, the Non- Federal Sponsors shall provide the Government with a check for the full amount of the additional required funds. D. Upon completion of the Project or termination of this Agreement, and upon resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non - Federal Sponsors with the results of the final accounting. The final accounting shall determine total project costs, each party's contribution provided thereto, and each party's required share thereof. The final accounting also shall determine costs due to betterments and the Ncn- Federal Sponsors' cash contribution provided pursuant to Article II.B. of this Agreement. 1. In the event the final accounting shows that the total contribution provided by the Non - Federal Sponsors is less than their required share of total project costs plus costs due to any betterments provided in accordance with Article II.B. of this is vc, voi uc ant. ae.ao ra+ cao eJC 4caa Du. i_u4lnrubar ttea Dt' 1(�i1V3 Agreement, the Non - Federal Sponsor shall, no later than 90 calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is required to meet the Non - Federal Sponsors' required share of total project costs plus costs due to any betterments provided in accordance with Article II.B. of this Agreement.. 2. In the event the final accounting shows that the total contribution provided by the Non - Federal Sponsors exceeds its required share of total project costs plus costs due to any betterments provided in accordance with Article II.B. of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Non - Federal Sponsors no later than 90 calendar days after the final accounting is complete. In the event existing funds are not available to refund the excess to the Non- Federal Sponsors, the Government shall seek such appropriations as are necessary to make the refund. ARTICLE VII - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non - binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties From performance pursuant to this Agreement. ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION (OMRR &R) A. Upon notification in accordance with Article II.C. of this Agreement and for so long as the Project remains authorized, the Non - Federal Sponsors shall operate, maintain, and repair the entire Project or the functional portion of the Project, at no cost to the Government, in a manner compatible with the Project's authorized purposes and in accordance with applicable Federal and State laws as provided in Article XI of this Agreement and specific directions prescribed by the Government in the OMRR &R Manual and any subsequent amendments thereto. B. The Non - Federal Sponsors hereby give the Government a right to enter, at reasonable times and in'a reasonable manner, upon property that the Non - Federal Sponsors own or control,for access to the Project for the purpose of inspection and, if necessary, for the o1, vo: u1 ini� 14.10 r1.1 110 4U1 4110 cuvlFU,u11UL1Udl tteh Of- Q UU4 purpose of completing, operating,.maintaining, repairing, replacing, or rehabilitating the Project.. If an inspection shows that the Non - Federal Sponsors for any reason is failing to perform its obligations under this Agreement, the Government shall send a written notice describing the non- performance to the Non - Federal Sponsors. If, after 30 calendar days from receipt of the notice, the Non - Federal Sponsors continues to fail to perform, then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property the Non - Federal Sponsor owns or controls for access to the Project for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project. No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the Non - Federal Sponsors' obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to this Agreement. ARTICLE IX - INDEMNIFICATION The Non - Federal Sponsors shall hold and save the Government free from all damages arising from the implementation, operation, maintenance, and repair of the Project, and any Project related betterments, except for damages due to the fau_t or negligence of the Government or its contractors. ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non - Federal Sponsors shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the Non - Federal Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures and for a minimum of three years after the period of implementation and resolution of all relevant claims arising therefrom. To the extent permitted under.applicable Federal laws and regulations, the. Government and the Non-Federal Sponsors shall each allow the other to inspect such books, documents, records, and other evidence. B. Pursuant to 32 C.F.R. Section 33.26, the Non - Federal Sponsors are respontible for complying' with the Single Audit Act of 1984, 31 U.S.C. Sections 7501 -7507, as implemented by Office of Management and Budget (OMB) Circular No. A -133 and Department of 17 V4.1 uoi ul ynV 14:4V rAA L1J MJ4 etla C11 \lf'Unlllen Ltil KeS nf• l$f V!!5 Defese Directive 7600.10. Upon request cf the Non - Federal Sponsors and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non-Federal Sponsors and independent auditors any information necessary to enable an audit of the Non - Federal Sponsors' activities under this Agreement. The costs of any non - Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A -187 and A -133, and such costs as are allocated to the Project shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Non - Federal Sponsors are required to conduct under the Single Audit Act. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A -87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE XI - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non- Federal Sponsors and the Government agree to comply with all applicable Federal and State laws and regulations, including, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88 -352 (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulation 600 -7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army ". ARTICLE.XII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement the Government and the Non - Federal Sponsors each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. B. In the exercise of its rights and obligations under this Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor either pursuant to any cause of action that such other patty may have or for violation of any law. M ARTICLE XIII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of ttis Agreement, or to any benefit that may arise therefrom. ARTICLE XIV - TERMINATION OR SUSPENSION A. If at any time the Non- Federal Sponsors fails to fulfill their obligations under Article II.B., II.D., II.E., VI, or XVIII.C. of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or'suspend future performance under this Agreement unless he determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other nor. - Federal interests in connection with the Project. B. If appropriations are not available in amounts sufficient to meet_ the Government's share of Project expenditures for the then - current or upcoming fiscal year, the Government shall so notify the Non - Federal Sponsors in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until such time as the Government receives sufficient appropriations or until either the Government or the Non - Federal Sponsors elects to terminate this:Agreement. C. In the event that either.party elects to terminate this Agreement pursuant to this Article or Article XV of this Agreement, both parties shall conclude their activities relating to the Project and proceed to a final accounting in accordance with Article VI,D. of this Agreement. D. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XV of this Agreement shall not relieve the parties of any obligation previously incurred. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 -week Treasury bills auctioned immediately prior to the date on which such payment became delinquent,.or auctioned immediately prior to the beginning of each additional 3 -month period if the period of delinquency exceeds 3 months. 19 U1'U61 LS Inu 14:13 r'AA Lis 4DZ 4L1a tin LruninerrLai Kes br- 'LAIVU. ARTICLE XV - HAZARDOUS S0BSTANCES A_ After execution of this Agreement and upon direction by the District Engineer, the Non- Federal Sponsors shall perform, or cause to be performed, any investigations for hazardous substances that the Government or the Non - Federal Sponsors determine tc be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter "CERCLA "), 42 U.S-C. Sections 9601 -9675, that may exist in, on or under lands, easements, aad rights -of -way that the Government determines, pursuant to Article III of this Agreement; to be required for the implementation, operation, and maintenance of the Project, except for any such lands that the Government determines to be subject to the navigation servitude_ For land=_ thatthe Government determines to be subject to the navigation servitude; only the Government shall perform such investigations unless the District Engineer provides the Non - Federal Sponsors with prior specific written direction, in which case the Non - Federal Sponsors shall - perform such investigations in accordance with such written direction. All actual costs incurred by the Non - Federal Sponsors or the Government for such investigations for hazardous substances shall be Included in total project costs and cost shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X-C- of this Agreement to determine reasonableness, allowability, and allowability of costs_ B_ In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights -cf -way, that the Government determines, pursuant to Article III of this Agreement, the Non - Federal Sponsors must provide for the implementation, operation, and maintenance of the Project, the Non- Federal Sponsors and the Government shall provide prompt written notice to each other, and the Non- Federal Sponsors shall not proceed with the acquisition of the real property interests until both parties agree that the Non - Federal Sponsors should proceed. C. The Government and the Non - Federal Sponsors shall determine whether to initiate'implementation of the'Project, or, if already in inplementation, whether to continue with work on the Project, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights -of -way that the Government determines, pursuant to Article III of this Agreement, to be required for the implementation, operation., and maintenance of the Project. Should the Government_ and the Non - Federal Sponsors 20 iQL SY.L4 rn., 110 404 441b Y,nrironmentai Res Br determine to initiate or continue with implementation after considering any liability that may arise under CERCLA, the Non Federal Sponsors shall be responsible, as between the Government and the Non - Federal Sponsors, for the costs of'clean -up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements or rights of way that the Government determines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and of the Project, except for any such lands, easements, or rights -of -way owned by the United States and administered by the Government. Such costs shall not be considered a part of total project costs. In the event the Non - Federal Sponsors fail to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non- Federal Sponsors' responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project. The Government shall be responsible, as between the Government and the Non - Federal Sponsors, for the costs of clean -up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements, or rights of way owned by the United States and administered by the Government. All costs incurred by the Government shall be included in total project costs and cost shared in accordance with the terms of this Agreement. D. The Non- Federal Sponsors and the Government shall consult with each other in accordance with Article V of this Agreement in an effort to ensure that responsible parties.bear any necessary cleanup and response costs as defined in CERCLA. :Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA. E. As between the Government and the Non - Federal Sponsors, the von - Federal Sponsors shall be considered the operators of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non - Federal Sponsors shall operate, maintain, and repair the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and either delivered personally, or by telegram, or mailed by first - class, registered, or certified mail, as follows: 21 W 02!08/01 TNU 1,1:25 FAS 213 452 9219 Environmental Res Br Ong If to t!1e Non - Federal Sponsors: County of Orarce 300 North Flower Street Santa Ana, California 92703 City of Newport Beach City Hall 3300 Newport Boulevard Newport Beach, California 92658 -6915 If to the Government: District Engineer, U. S. Army Engineer District, Los Angeles ATTN: CESPL -PM -C 911 Wilshire Blvd cos Angeles, California 90017 -2325 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have beer. received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XVII - CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XVIII - HISTORIC PRESERVATION A. The costs of identification, survey and evaluation of historic properties shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. 3. Pursuant to Section 7(a) of Public Law 93 -291 (16 U.S.C. Section 469c(a)), the costs cf mitigation and data recovery activities associated with historic preservation shall be borne . entirely by the Government and shall not be included in total project costs, up to the statutory limit of one percent of the total amount the Government is authorized to expend for the Project. 22 ...',i U6 /U1 IUU 14:00 k.'U LLS 4.^,L 4"V tm LroumenL81 Kes er C. The Government shall not incur costs for mitigation and data recovery that exceed the statutory one percent limit specified in paragraph B. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit in accordance with Section 208(3) of Public Law 96 -515 (16 U.S.C. Section 469c-2(3)). Any costs of mitigation and data recovery that exceed the one percent limit shall be included in total project costs and shall be cost shared in accordance with the provisions of this Agreement_. ARTICLE XIX - LIMITATION ON GOVERNMENT EXPENDITURES Notwithstanding any other provisions of this Agreement, the Government's financial obligations are 'limited to $5,000,000. The Non - Federal Sponsor shall be responsible for all total project costs that exceed this amount. 23 i1U1U .,� ..� ..a am a +. �., rn.v cae •.... +�.� - -. - -. w.. ... vua�cu wa �+ea u. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the Department of the Army. THE DEPARTMENT OF THE ARMY THE COUNTY OF ORANGE BY= BY: _ John P. Carroll Chairman Colonel, Corps of Engineers Board of Supervisors District Engineer Orange County, California Los Angeles District rNj -N9* DATE: THE CITY OF NEWPORT BEACH 9M John E. Noyes P4ayor SIGNED AND CERTIFIED THAT A APPROVED AS TO FORM: COPY'OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Darlene J. Bloom Laurence M. Watson Clerk, 3oard of Supervisors Deputy County Counsel Orange County, California Orange County, California ATTEST: LaVonne M. Harkless, Citv Clerk Robert Burnham, Ci ty Attorney City of Newport Beach City of Newport Beach 24 J U11 02/08:01 THU 14:27 FAX 213 452 4219 Environmental Res Br CERTIFICATE OF AUTHORITY I, , do hereby certify that I am the principal legal officer of the County of Orange, that the County of Orange and the County of Orange is a legally constituted.public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the County of Orange in connection with the Lower Newport Bay Eelgrass Restoration Project, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, and that the persons who have executed this Agreement on behalf of the Count_ of Orange have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of , 20_ Laurence M. Watson, Deputy County Counsel Orange County, California 25 0 012 02/08/01 THH 14:28 FAX 213 452 4219 Environmental Res Br 0 013 CERTIFICATE OF AUTHORITY I, , do hereby certify that I am the principal legal officer of the City of Newport Beach, that the City of Newport Beach is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between. the Department of the Army and the City of Newport Beach in connection with the Lower Newport Bay Eelgrass Restoration Prcject, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, and that the persons who have executed this Agreement on behalf of the City of Newport Beach have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of , 20 Robert Burnam City Attorney City of Newport Beach 02/08/01 THU 14:29 FAX 213 452 4219 Environmental Res Br CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid.or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Charles V. Smith Chairman, Board of Supervisors Orange County DATE: ATTEST: Cle_k, Board of Supervisors Orange County 27 John E. Noyes Mayor City of Newport Beach DATE: 0 014 AWipo -1MW C, AN AGREEMENT TO PROVIDE SAFE HARBOR ASSURANCES TO THE CITY OF NEWPORT BEACH AND COUNTY OF ORANGE REGARDING IMPLEMENTATION OF THE PROGRAM TO ENHANCE THE EELGRASS COMMUNITY IN NEWPORT HARBOR I. Background Newport Bay is located approximately 40 miles south of Los Angeles in Orange County California. The Bay is divided into the Upper Newport Bay and Lower Newport Bay (Newport Harbor) at the Pacific Coast Highway Bridge. Newport Harbor is one of the largest small craft harbors in the United States and is a heavily used recreational area. Upper Newport Bay has been designated an ecological reserve and is home to the largest population of the Light- footed clapper rail, a species currently listed as endangered. Upper Newport Bay also provides unique habitat or refuge for other listed species such as the California Least Tern and California Brown Pelican. Newport Harbor has considerable productive habitat that has, from time to time, been adversely impacted by increased sediment and nutrient loads from upstream development of the watershed. Studies suggest that less than three acres of eelgrass existed in Newport Bay in 1993 — a dramatic reduction from historical levels — but recent surveys confirm that the eelgrass community in Newport Harbor is currently expanding. This increase in eelgrass is attributable to reductions in nutrients and sediment achieved through the cooperative efforts of public agencies with jurisdiction over water quality and /or the environment and private entities interested in the protection and enhancement of the environment. The same public and private entities are continuing their efforts to improve water quality and increase the value of the marine and subtidal habitat in Newport Harbor and Upper Newport Bay. Eelgrass beds are acknowledged as an extremely valuable type of marine habitat that enhances the physical and biological environment by stabilizing the sub - strait, increasing productivity,' and providing structure to otherwise monotonous soft bottom habitat. Eelgrass beds serve as the nursery for important sport and commercial fish and vertebrata species, increase the forage base 1 and or forage opportunities for listed species such as the California least turn and California brown pelican, impede shoreline erosion and improve water quality. The Federal interest in the restoration of eelgrass habitat has been confirmed by numerous reports and studies. (e.g. Reconnaissance Report, 1999) Implementation of this SHA will establish 8 eelgrass restoration sites in Newport Harbor, protect the restoration sites from activities that would damage or destroy eelgrass and, subject to certain conditions, require replanting restoration sites until such time as the parties determine that further maintenance is infeasible. This SHA is a voluntary agreement between the City of Newport Beach (City), the County of Orange (County), the National Marine Fisheries Service — an agency of the United States Department of Commerce, the Army Corps of Engineers. Eelgrass is not a listed species and this SHA is somewhat unique in that the obligations undertaken by the City and County will not necessarily result in the issuance of any permit pursuant to Section 10 of the Endangered Species Act. Moreover, this SHA does not authorize the City or County to remove Eelgrass except in the immediate vicinity of the restoration sites and only when necessary or appropriate to preserve navigational channels or maintain required depths in berthing areas. This SHA is intended to facilitate the implementation of the Pilot Restoration Program described in Section _ without impairing the right of the City of Newport Beach, or its permittees, to remove eelgrass within certain areas in conjunction with routine maintenance dredging in and around piers, floats and navigational channels. Maintenance dredging is essential to the continuing use of Newport Harbor as a small craft harbor and public recreational area that provides public access to bay, nearshore and offshore marine resources and habitat. The City of Newport Beach would not participate in the Pilot Restoration Program without the assurances regarding the right to remove eelgrass that migrated well beyond the transplant sites when removal was necessary in conjunction with maintenance dredging. II. • Purpose and Need For Action The overall purpose of this Safe Harbor Agreement (SHA) is to implement a pilot program (Pilot Restoration Program — Exhibit A) to plant eelgrass in eight (8) currently unvegetated soft bottom X habitat sites (restoration sites) in Newport Harbor. This SHA is also intended to ensure that the CITY and COUNTY can remove eelgrass that propagates beyond the restoration sites when removal is necessary to maintain the required or desired depth of navigational channels or recreational vessel berthing areas. This SHA is intended to create a contractual obligation on the part of the CITY and COUNTY to implement a pilot program to establish eelgrass communities in the eight restoration sites, to conduct regular surveys of the restoration sites, to patrol restoration sites to prevent damage to the eelgrass beds, and, subject to certain conditions, to replant all or a portion of any restoration site when eelgrass is damaged or destroyed for any reason during the period specified in this SHA. In the event that research conducted as part of the Pilot Restoration Program indicates that some or all of the restoration sites have been successfully revegetated, the Parties have identified other sites that may be suitable sites for revegetation and possible mitigation credit. This SHA recognizes that the establishment of eelgrass beds in the restoration site has the potential to extend beyond the exterior boundaries of the site to areas that need to be dredged to preserve navigational channels or berthing facilities for recreational boaters. This SHA authorizes the CITY and /or COUNTY to remove eelgrass that is the product of restoration pursuant to this SHA but which has propagated beyond the exterior boundaries of the restoration sites when necessary to preserve navigational channels or maintain sufficient depth under or around berthing facilities. This SHA is also intended to be a preliminary step in the development of a eelgrass mitigation banking program that would be based on the revegetation of areas other that the restoration sites. The mitigation banking program would be established by separate SHA and assumes that research conducted as part of the Pilot Program indicates a strong probability for revegetation success in other portions of Newport Harbor. K, Ill. Pilot Restoration Program CITY and COUNTY commit to implement the Pilot Restoration Program as specified in Exhibit A (Copy Attached) and as described and/or modified in this Section. CITY and COUNTY specifically commit to do the following: (a) Retain a qualified environmental specialty consultant with prior experience conducting successful eelgrass transplanting programs in Southern California (Contractor). The Contractor shall report to project managers appointed by the CITY and COUNTY and approved by the Army Corp of Engineers (ACOE). (b) The Contractor shall prepare a Dive Plan and Field Safety Plan, Transplant Plan and an Eelgrass Collection Permit (unless the permit has been obtained prior to execution of this SHA) as outlined in Exhibit A. ACOE shall review and approve the Transplant Plan in consultation with the Department of Fish and Game, the National Marine Fisheries Service and the Fish and Wildlife Service. (c) Contractor shall conduct the Eelgrass transplants in strict compliance with the provisions of Exhibit A in terms of the timing of transplantation, preparation of restoration sites, collection and transplant methodology, field observations and record keeping and preparation of a final transplant project report. (d) CITY and COUNTY shall annually review the condition of the Eelgrass at each restoration site. Except as to restoration sites 13 and 14, CITY and COUNTY shall, for a period of five (5) years after the effective date of this SHA, replant eelgrass whenever ten percent (10 %) or more of the eelgrass in the site has been damaged or destroyed irrespective of the cause. CITY and COUNTY shall have no obligation to replant Eelgrass at restoration sites 13 and/or. 14 if more than fifty percent (50 %) of the eelgrass' is damaged or destroyed at either restoration site during the first five (5) years during the term of this SHA. Replanting of Eelgrass at restoration sites shall occur during the period from April 1 through May 31 (early growing season). The CITY FI and COUNTY shall revegetate these restoration sites in accordance with the Pilot Restoration Program. (e) CITY and COUNTY anticipate using volunteers, including members of the Orange County Coastkeepers to serve as members of the dive team. All dive team members shall satisfy the requirements in Exhibit A and shall be trained in eelgrass transplant techniques by the Contractor. CITY and COUNTY shall routinely patrol the area around the receiver locations to prevent human activities that could interfere with the successful propagation of Eelgrass in the receiver locations. IV. Habitat/Area Covered by this SHA The habitat and geographic area covered by the provisions of Section _ of this SHA consists of the tidelands and submerged lands granted to the CITY and COUNTY in Newport Harbor and Upper Newport Bay exclusive of the following: (a) Those areas vegetated with Eelgrass as of the date of this SHA and to the extent that eelgrass in those areas increases or decreases in size or scope during the term of this SHA. (b) Those areas that become vegetated with Eelgrass subsequent to the date of this SHA where the vegetation has resulted from natural causes unrelated to the restoration program described in this SHA. (c) The restoration sites and (i) an area ten (10) feet beyond the exterior boundaries of each receiver location; or (ii) an area equal to twenty -five percent (25 %) of the area of each receiver location, whichever represents the smallest total area (restoration site extended area) . V. Net Conservation Benefit "Net Conservation Benefit" means that the restoration measures specified in this SHA provide for an increase in the Eelgrass population in Upper Newport Bay and Newport Harbor. The provisions of this SHA will result in a net conservation benefit by ensuring the planting and, if necessary, replanting of Eelgrass over approximately 15 acres of potential habitat. In the absence of this SHA, the restoration sites would remain unvegetated and the parties would not 5 have the benefit of the additional data related to Eelgrass propagation and survival that will be generated by the Pilot Restoration Program. Implementation of this SHA will also allow the parties and members of the scientific community to thoroughly study and research the factors which contribute to the increase or decline of eelgrass as well as the relationship between eelgrass habitat and listed species. Successful propagation of Eelgrass in one or more of the restoration sites may lead to additional efforts to enhance the Eelgrass community in Upper Newport Bay and /or Newport Harbor. Eelgrass is not a listed species and is not a historic habitat for any listed species. However, the expansion of eelgrass habitat in Newport Harbor and Upper Newport Bay will increase the availability of forage fishes and help sustain and potentially enhance listed species such as the California least tern and the California brown pelican. This SHA has the potential to enhance fisheries in Newport Harbor, the nearshore environment of Orange County and the offshore zone because Eelgrass can serve as a nursery for both forage fish and species such as the Pacific Halibut and California White Seabass. VI. Cooperation This SHA represents an ongoing cooperative effort on the part of the Parties to ensure the survival of the Eelgrass planted pursuant to the Pilot Restoration Program, to obtain scientific data from the Pilot Restoration Program, and to potentially expand the restoration in conjunction with a mitigation credit program. A. City and County agree to work cooperatively on all issues that will further the purposes of this SHA. City and County will provide any Party with access to any of the restoration sites and access to all information generated by the Pilot Restoration Program. B. The Parties agree to periodically review the status of each of the restoration sites and City and County agree to implement any feasible measure necessary to protect the restoration sites from human activities that could hinder propagation or survival of Eelgrass in revegetated areas. C. The Parties agree to exchange information, such as scientific studies and reports, that may be helpful to the successful propagation of Eelgrass within the restoration sites. The Parties shall meet and confer relative to implementation of measures identified in any such study or report that could significant enhance the potential for survival of Eelgrass at M one or more of the restoration sites. VII Permitted Activities City and County shall be authorized by this SHA to remove Eelgrass from any location other than those specified in Section _, including any Eelgrass that has propagated beyond the extended restoration zone. This SHA does not authorize the City or County, or their permittees, to remove Eelgrass from those areas identified in Section _ (A) and (B). Assuming the City and County are not in default pursuant to this SHA, the Federal and /or State Parties shall issue any permit required by law to remove Eelgrass beyond the extended restoration zone. The obligations of the Federal and State Parties to issue permits authorizing removal of Eelgrass from the area outside the extended restoration zone includes the obligation to issue permits pursuant to the Federal Endangered Species Act, the California Endangered Species Act, the Coastal Act and all related statutes, rules and regulations. The activities authorized by such permits shall include maintenance dredging, pier and float construction and other activity incidental to ensuring safe navigation and /or safe berthing facilities. City and County shall have the right to authorize private parties to remove Eelgrass consistent with this SHA in conjunction with dredging or maintenance activities necessary to ensure safe navigation or safe vessel berthing and that are conducted pursuant to permit issued by the City of Newport Beach. Authorizations to dredge shall be issued only to those persons who have a permits issued by the City or County to maintain a structure in Newport Harbor and all dredging authorizations will be accompanied by an SHA between the City or County and the permittee as specified in Exhibit Vlll. Term The term of this SHA shall be fifteen (15) years from the date on which the last restoration site is fully vegetated. This SHA is subject to earlier termination pursuant to the provisions of Section in the event of a material default on the part of the City or County. The Parties may extend FA the term of this SHA in the manner provided for any amendment or modification of this SHA (Section IX MISCELLANEOUS A. Modifications and Amendments. 1. Modifications of the SHA. Any party may propose modifications to this SHA by providing written notice to the other party. Such notice shall include a statement of the proposed modification and the reason for the modification. The parties will use their best efforts to respond to proposed modifications within 60 days of receipt of such notice. Proposed modifications will become effective upon the. other parties' written approval. 2. Amendment of the Permit. Any Permit issued pursuant to this SHA may be amended in accordance with all applicable legal requirements, including but not limited to the ESA, the National Environmental Policy Act, and the Federal parties permit regulations. The party proposing the amendment shall provide a statement of the proposed amendment and the reasons for the amendment. B. Permit Suspension or Revocation. The Federal or State parties may suspend or revoke any permit issued pursuant to this SHA for cause in accordance with the laws and regulations in force at the time of such suspension or revocation. C. Remedies. Each party shall have all remedies otherwise available to enforce the terms of this SHA and any related permit, except that no party shall be liable in damages for any : E- breach of this SHA, any performance or failure to perform an obligation under this SHA or any other cause of action arising from this SHA. D. Dispute Resolution. The parties agree to work together in good faith to resolve any disputes, using dispute resolution procedures agreed upon by both parties. E. Availability of Funds. Implementation of this SHA is subject to the requirements of the Anti - Deficiency Act and the availability of appropriated funds. The parties will not construe this SHA to require the obligation, appropriation, or expenditure of any money from the U.S. Treasury. The parties acknowledge that the Federal parties will not be required under this SHA to expend any federal agency's appropriated funds unless and until an authorized official of that agency affirmatively acts to commit to such expenditures as evidenced in writing. F. No Third -party Beneficiaries. This SHA does not create any new right or interest in any member of the public as a third -party beneficiary, nor shall it authorize anyone not a party to this SHA to maintain a suit for personal injuries or damages pursuant to the provisions of the SHA to maintain a suit for personal injuries or damages pursuant to the provisions of the SHA. The duties, obligations, and responsibilities of the parties to this SHA with respect to third parties shall remain as imposed under existing law. G. Relationship to Authorities. The terms of this SHA shall be governed by and construed in accordance with P& applicable federal law. Nothing in this SHA is intended to limit the authority of the FWS to fulfill its responsibilities under federal laws. All activities undertaken pursuant to this SHA or the permit must be in compliance with all applicable state and federal laws and regulations. H. Succession and Transfer. This SHA shall be binding on and shall inure to the benefit of the parties and their respective successors and transferees, in accordance with applicable regulations (currently codified at 50 CFR 13.24 and 13.25). 1. Notice and Reports. Any notice or reports required by this SHA shall be delivered in writing to the persons listed below: If to City: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 (949) 644 -3131 If to County: 10 r Q r m m m 3 m L _ a m °c9 s 233 s� FA CIO 1, owidl- m >U °m C2 a�NLC IL LLY9l ct�g�pp y oJ��mem j I M y am cq etA m ipp COo muoym233y l.uuua= m4aooe=?� (� oat't+st 3 CL eec mm`o'wm???a$o W W W y S y y m J J 7 J �� VA `s°. m 1 Ll s._ IF J /�1 Y \ �_ � ;� ¢+•nom 7