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Home My WebLink AboutC-5018(B) - Memorandum of Agreement for Additional Dredging in Connection with Dredging of Newport Bay Harbor, Californiaco V MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND CITY OF NEWPORT BEACH FOR ADDITIONAL DREDGING IN CONNECTION WITH DREDGING OF NEWPORT BAY HARBOR, CALIFORNIA This MEMORANDUM OF AGREEMENT (hereinafter the "MOA for Additional Dredging") is entered into this o 64' day of March , aoa 3 , by and between the Department of the Army (hereinafter the "Government"), represented by the U.S. Army Engineer, Los Angeles District (hereinafter the "District Engineer"), and the City of Newport Beach (hereinafter the "Non -Federal Interest"), represented by its Mayor. WITNESSETH, THAT: WHEREAS, the Newport Bay Harbor, California Maintenance Project (hereinafter the "Project") was authorized for construction by River and Harbor Act of 1937, Pub. L. 75- 392, 50 Stat. 844, 849, as amended by the Rivers and Harbors Act of 1945, Pub. L. No. 79-14, § 2, 59 Stat. 10, 21; WHEREAS, the Government and Non -Federal Interest entered into the Memorandum of Agreement between the Department of the Army and the City of Newport Beach for Maintenance Dredging of Newport Harbor, California on 9 November 2022 (attached hereto as Exhibit "A" and incorporated herein by reference ("MOA for Maintenance Work"), wherein the Non -Federal Interest agreed to contribute up to $10,000,000 to pay costs associated with the Project; WHEREAS, the Non -Federal Interest has provided $10,000,000 to the Government for the Project, and those funds were accepted by the Government on 10 December 2022; WHEREAS, the construction of a confined aquatic disposal facility and placement of dredged material in the nearshore waters are necessary for the Project; WHEREAS, the Non -Federal Interest therefore requests dredging of material within Newport Bay Harbor, between Bay Island, Lido Isle, and Harbor Island, to construct a confined aquatic disposal facility and placement of dredged material in the nearshore waters off Newport Beach in support of the Maintenance Work for the Project (hereinafter the "Additional Dredging") and agrees to pay all costs of the Additional Dredging; WHEREAS, the Non -Federal Interest and Government agree that the costs of the Additional Dredging shall be drawn from the $10,000,000 already provided to the Government for the Project; and WHEREAS, the Government is authorized pursuant to 33 U.S.C. 701h to carry out the Additional Dredging in connection with dredging of the Project. NOW, THEREFORE, the Government and the Non -Federal Interest agree as follows: 1. The Non -Federal Interest shall provide to the Government funds to pay all costs, including the costs of environmental compliance, supervision and administration, and engineering and design, associated with the Additional Dredging to be carried out in connection with dredging of the Project. While the Government will endeavor to limit the additional costs associated with the Additional Dredging to the current estimate of $5,000,000, the Non -Federal Interest acknowledges that the actual costs for the Additional Dredging may exceed such estimated amount due to claims or other unforeseen circumstances and that the Non -Federal Interest is responsible for all costs, including any claims, related to the Additional Dredging. 2. Within ten (10) calendar days of execution of this MOA for Additional Dredging, the Non - Federal Interest shall provide to the Government $0. If at any time the Government determines that additional funds are needed, the Government shall notify the Non -Federal Interest in writing of the amount, and, no later than sixty (60) calendar days from receipt of such notice, the Non -Federal Interest shall provide to the Government the full amount of the additional funds. 3. The Non -Federal Interest shall provide the funds to the Government by delivering a check payable to "FAO, USAED Los Angeles District (L 1)" to the District Engineer or providing an Electronic Funds Transfer of such funds in accordance with procedures established by the Government. 4. The Government shall not commence the Additional Dredging until: a) all applicable environmental laws and regulations have been complied with, including, but not limited to, the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and Section 401 of the Clean Water Act (33 U.S.C. 1341); and b) the Non -Federal Interest has provided to the Government authorization for entry to all lands, easements, and rights -of -way the Government determines to be required for the Additional Dredging. 5. The Government shall provide the Non -Federal Interest with quarterly reports of obligations for the Additional Dredging. The first such report shall be provided within thirty (30) calendar days after the final day of the first full quarter of the Government fiscal year following receipt of the funds pursuant to this MOA for Additional Dredging. Subsequent reports shall be provided within thirty (30) calendar days after the final day of each succeeding quarter until the Government concludes the Additional Dredging. 6. Upon completion of the Additional Dredging and resolution of all relevant claims and appeals, the Government shall conduct a final accounting of the costs of such work and furnish the Non -Federal Interest with written notice of the results of such final accounting. Such final accounting shall in no way limit the Non -Federal Interest's responsibility to pay for all costs associated with the Additional Dredging, including contract claims or any other 2 liability that may become known after the final accounting. If such costs are more than the amount of funds provided by the Non -Federal Interest, the Non -Federal Interest shall provide the required additional funds within sixty(60) calendar days of such written notice by delivering a check payable to "FAO, USAED Los Angeles District (L 1)" to the District Engineer or providing an Electronic Funds Transfer of such funds in accordance with procedures established by the Government. If such costs are less than the amount of funds provided by the Non -Federal Interest, the Government shall refund the excess to the Non -Federal Interest within sixty (60) calendar days of such written notice, subject to the availability of funds. 7. Before either party to this MOA for Additional Dredging may bring suit in any court concerning an issue relating to this MOA for Additional Dredging, such party must first seek in good faith to resolve the issue through negotiation or other forms of nonbinding alternative dispute resolution mutually acceptable to the parties. 8. In the exercise of their respective rights and obligations under this MOA for Additional Dredging, the Government and the Non -Federal Interest each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 9. Any notice, request, demand, or other communication required or permitted to be given under this MOA for Additional Dredging shall be deemed to have been duly given if in writing and either delivered personally or mailed by registered or certified mail, with return receipt, as follows: If to the Non -Federal Interest: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 If to the Government: Chief, Navigation Branch U.S. Army Corps of Engineers Los Angeles District 915 Wilshire Blvd., Suite 1100 Los Angeles, CA 90017 A party may change the recipient or address to which such communications are to be directed by giving written notice to the other party in the manner provided in this paragraph. 10. This MOA for Additional Dredging may be modified or amended only by written, mutual agreement of the parties. Either party may unilaterally terminate further performance under this MOA for Additional Dredging by providing at least 15 calendar dates written notice to the other party. In the event of termination, the Non -Federal Interest remains responsible for any and all costs incurred by the Government under this MOA for Additional Dredging and for any and all costs of closing out or transferring any ongoing contracts. IN WITNESS WHEREOF, the parties have executed this MOA for Additional Dredging, which shall become effective upon the date it is signed by the District Engineer. THE DEPARTMENT OF THE ARMY B Ct ulie A. Balten Colonel, U.S. Army Commanding DATE: 3Z G?Fflaaa 3 CITY OF NEWPORT BEACH DATE: 2 /iy/2 3 APPROVED AS TO FORM OFFICE OF THE CITY ATTORNEY AaronliTarp City torney ATTEST: Leilani Brown City Clerk [END OF SIGNATURES] 208 .' (�L!�'ORN% Attachments: Exhibit A - Memorandum of Agreement between the Department of the Army and the City of Newport Beach for Maintenance Dredging of Newport Harbor, California on 9 November 2022 4 MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF NEWPORT BEACH FOR MAINTENANCE DREDGING OF NEWPORT HARBOR, CALIFORNIA This MEMORANDUM OF AGREEMENT (hereinafter the "MOA") is entered into this 9,1" day of NoJtv'^ b¢,r , as a a , by and between the Department of the Army (hereinafter the "Government"), represented by the U.S. Army Engineer, Los Angeles District (hereinafter the "District Engineer"), and the City of Newport Beach (hereinafter the "Contributor"), represented by its Mayor. WITNESSETH, THAT: WHEREAS, the Newport Harbor, California maintenance project (hereinafter the "Project") was authorized by the River and Harbor Act of 1937, Pub. L. 75-392, 50 Stat. 844, 849, as amended by the Rivers and Harbors Act of 1945, Pub. L. No. 79-14, § 2, 59 Stat. 10, 21; WHEREAS, the amount of Federal funds available for maintenance dredging of the Project is sufficient to proceed with dredging contracts but insufficient to perform all scheduled work; WHEREAS, the Contributor considers it to be in its own interest to contribute funds voluntarily to be used by the Government to perform additional maintenance dredging of the Project (hereinafter the "Maintenance Work"); and WHEREAS, the Government is authorized pursuant to 33 U.S.C. 701 h to receive and expend funds to be used for the Maintenance Work. NOW, THEREFORE, the Government and Contributor agree as follows: 1. The Contributor shall provide to the Government up to $10,000,000 to pay costs associated with the Maintenance Work, including the costs of environmental compliance, supervision and administration, and engineering and design. 2. Within sixty (60) calendar days of execution of this MOA, the Contributor shall provide the funds to the Government by delivering a check payable to "FAO, USAED Los Angeles" to the District Engineer or providing an Electronic Funds Transfer of such funds in accordance with procedures established by the Government. 3. The Government shall not commence any Maintenance Work until all applicable environmental laws and regulations have been complied with, including, but not limited to, the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and Section 401 of the Clean Water Act (33 U.S.C. 1341). 4. The Government shall provide the Contributor with quarterly reports of obligations for the Maintenance Work. The first such report shall be provided within thirty (30) calendar days after the final day of the first full quarter of the Government fiscal year following receipt of funds pursuant to this MOA. Subsequent reports shall be provided within thirty (30) calendar days after the final day of each succeeding quarter until the Government concludes the Maintenance Work. 5. Upon conclusion of the Maintenance Work and resolution of all relevant claims and appeals, the Government shall conduct a final accounting of the costs of such work and furnish the Contributor with written notice of the results of such final accounting. If the costs of the Maintenance Work are less than the sum of the Federal funds and the amount of funds provided by the Contributor, the Government shall refund the excess to the Contributor within thirty (30) calendar days of such'written notice. 6. No credit or repayment is authorized, nor shall be provided, for any funds provided by the Contributor and obligated by the Government for the Maintenance Work. 7. Nothing herein shall constitute, represent, or imply any commitment to budget or appropriate funds for the Project in the future; and nothing herein shall represent, or give rise to, obligations of the United States. 8. The Contributor shall hold and save the Government free from all damages arising from the Maintenance Work, except for damages due to the fault or negligence of the Government or its contractors. 9. In the exercise of their respective rights and obligations under this MOA, the Government and the Contributor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. F 10. Notices. a. Any notice, request, demand, or other communication required or permitted to be given under this MOA shall be deemed to have been duly given if in writing and either delivered personally or mailed by first-class, registered, or certified mail, as follows: If to the Contributor: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 If to the Government: Chief, Navigation Branch U.S. Army Corps of Engineers 915 Wilshire Boulevard, Suite 1100 Los Angeles, CA 90017 b. A party may change the recipient or address to which such communications are to be directed by giving written notice to the other party in the manner provided in this paragraph. Any notice, request, demand, or other communication made pursuant to this paragraph shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven (7) calendar days after it is mailed. 11. This MOA may be modified or amended only by written, mutual agreement of the parties. (Signatures on next page) A IN WITNESS WHEREOF, the parties have executed this MOA as of the day, month, and year first above written. THE DEPARTMENT OF THE ARMY TH BY: 6�? BY A. Balten Colonel, U.S. Army District Engineer DATE: /1/9.1A20•7 -Z DATE: 7/Z7/21 APPROVED AS TO FORM OFFICE OF THE CITY ATTORNEY Pan H ttorney ATTEST: z 11", g1r1m, / " X-T Lei. . •- City Clerk GI