HomeMy WebLinkAboutC-3415 - Project Cooperation Agreement and Safe Harbor Agreement for the Lower Newport Bay Eelgrass Restoration Projecti
ITEM
TO: Members of the Newport Beach City Council
FROM: Tony Melum, Division of Harbor Resources
SUBJECT: Lower Newport Bay Eelgrass Restoration Project
R ^P RC'JE'J
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.
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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.
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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
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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
ATTrc �tvv�rNi P
National Marine Fisheries Service
Southwest Region,
Southern California Eelgrass
Mitigation Policy
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July 31, 1991 x�
FD �'F1ES OF rJ�r
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SOUTHERN CALIFORNIA EELGRASS MITIGATION POLICY
(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 Man. 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 acrual area of impact shall be determined from this survey.
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Southern Califomia Eelgrass Mitigation Policy 2
3. Mitigation 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
5. 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.
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Southern California Eelgrass Mitigation 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. Mitigation 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 fast 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.
Southern California Eelgrass Mitigation Policy 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 (lAt + Dtl - JAc + Dcl)
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 line 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
ereater than the 12 inch wide corridor, then mitigation pursuant to provisions 1 -10 of this
policy shall be required.
revised S%25/92, 4/29/96, 12 /1-, 96. 6 116/97)
01111; umeu i.o_ xes nr
February 2001
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PROJECT COOPERATION AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
THE COUNTY OF ORANGE
AND
THE CITY OF NEWPORT BEACH
FOR THE
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LOWER NEWPORT BAY EELGRASS RESTORATION PROJECT
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 of 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 restorat_on 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.B. 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 Armv
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 b-inding agreement to pay the non - Federal
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01111; umeu i.o_ xes nr
February 2001
s1Si:T�
PROJECT COOPERATION AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
THE COUNTY OF ORANGE
AND
THE CITY OF NEWPORT BEACH
FOR THE
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LOWER NEWPORT BAY EELGRASS RESTORATION PROJECT
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 of 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 restorat_on 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.B. 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 Armv
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 b-inding agreement to pay the non - Federal
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share of the costs of construction recurred by Section 206(b) and to
pay 200 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 Non - Federal Sponsors desires to perform certain
wcrk (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 - DEFINI_TIONS AND GENERAL PROVISIONS
For purposes of this Agreement:
A. The term "Project" shall mean a pilot_ project to
investigate restoration of eelgrass in Lower Newport Bay as
generally described in the Lower Newport Bay Harbor Aquatic
Ecosyst_em Restoration Study Section 200' Preliminary Restoration
Plan, dated January 1999, and approved by the Commander, U.S. Army
Corps of Engineers, South Pacific Di vision on 26 April 1999.
B. ' -he term "total project costs" shall mean all costs
incurred :oy 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 not necessarily limited
to, feasibility phase planning costs; all engineering and design
costs, including those incurred in the feasibility phase; the costs
cf 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 clear-up and response in
accordance with Article XV.C. of this Agreement; costs of historic
preservation activities in accordance with Article RV- TII.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
dredced or excavated material disposal areas for which the
Governmen!_ 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
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to betterments; or any costs of dispute resClu.tion under Art -cie 'vI2
of this Agreement.
C. The term "financial obligation for implementation" shall
mean a f- nancial 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 II.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 Enaineer 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.
The term "fiscal year" shall mean one fiscal year of the
Government. The Government fiscal year begins on October 1 and ends
on September 30.
J. 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.
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K. The term "betterment" shall mean a cha�ice it 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 act:ivitites associated with implementation, but does not
include the implementation of betterments or the provision of lands,
easements, rights -cf -way, relocations; or suitable borrow and
dredged o:: excavated material disposal areas associated with the
work -in -kind.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON- FEDERAL
SPONSORS
A. ?he 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 modifi cation or change
order is riot 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 Govern -went also
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ceTmant on 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 Nor. - 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,
uaor_ the award of any contract for implementation of the Project,
cumulative financial obligations for implementation would exceed
5300,000.00, the Government and the Non - Federal Sponsors agree to
defer award of that contract and all subseouent 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 referred 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
notifv the Non - Federal Sponsors in writing and furnish the Non -
Federal Sponsors with an Operation, Maintenance, Repair,
Replacement, and Rehabilitatior. Manual (hereinafter the "OMRR &R
Manual ") and with copies of all of the Government's Written Notices
of Acceptance of Completed Work fcr all contracts for the Project or
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the funct.ior_al portion of the Project that Nave 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 Acreement.
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 Article 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.l. of this Article
and Articles V, X, and XV.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.I.
and D.2. of this Article and Psticles 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 Prc'ect 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 dredoed 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 XG.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
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to an on -site inspection by the Government tc verify that -he 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 tc determine reasonableness, allocab_1ity, 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 Non -r- ederal Sponsors shall be
solely responsible for all costs of the requested services and shall
pay a_1 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
Acreement.
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
Sponsors have met their obligations under paragraphs B. D., and E.
of this Article.
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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 i`unds is expressly authorized by statute.
ARTICLE III - LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW
91 -696 COMPLIANCE
A. The Government, after consultation with the Non - Federal
Sponsors, shall determine the lands, easements, and rights -cf -way
required for the implementation, operation, and of the Project,
includinc 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 -o£ -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 -wag. Prior to the and of the period of implementation,
the Non - 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
Non- 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 wi-h 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, s= il_ing
basins, and de- watering pumps and pipes. The Government in a timely
manner shall provide the Non - Federal Sponsors with general written
descriptions of such improvements 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 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.
Furthermore, prior to issuance of the solicitation for each
Government construction contract, the Non - Federal Sponsors shall
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prepare p ans and specifications for al_ improvements the Government
determines to be recuired 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 fulfil_ 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 Nor. - Federal Sponsors in a timely manner shall provide
the Government with such documents as are sufficient to enable the
Government to determ_ne the value of any contribution provided
pursuant to paragraphs A., S., 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 T -V 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 tae 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.
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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 to
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 _ands, easements, rights -of -way, relocations, or borrow
and dredoed 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
paracraph B.3. of this Article, the fair market value of lands,
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
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Government_. The fair market value shall be the amount set forth in
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 o:.,tair.
a second appraisal, and the fair market value shall be the amount
set 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 Government's
appraisal, if such appraisal is approved by the Non - Federal
Sponsors. In the event the Non - Federal Sponsors do riot 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 A-rticle, 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 Artic'_e, but not tc
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
c_°, 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.'
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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 of 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 ii.rr.ited to,
closing and title costs, 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 -646 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, = educed by depreciation., as applicable, and by the salvage
va_ae of any removed items.
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?or 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 designni standard
that the State of California would 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 -of -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 acccrdance 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.
ARTICiE 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.
R. 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 Tean
generally oversees.
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C. Until the end of the period of implementation, the Prc_ect
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 modifications; contract costs; the Government's
cost protections; 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 included 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
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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
this 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
implementa tion 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 Govermaent shall notify the
Non - Federal Sponsors in writing of the additional funds required.
Within 60 calendar days thereafter, the Non - 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 anv 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 "FAA, USAED,
Los Angeles District" to the District Engineer. The Government
shall draw from the funds provided by the Nor. - 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 nrcvide additional funds to meet their cash contribution, the
Government shall notify the Nan- Federa_ 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
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Agreement, the Non - Federal Sponsor shall, ac 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
5G 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 (0MRR &R)
A. Upon notification in accordance with Article II.C. of this
Agreement and for so long as the Project remains authorized, the
Non - Fede =al 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
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Agreement, the Non - Federal Sponsor shall, ac 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
5G 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 (0MRR &R)
A. Upon notification in accordance with Article II.C. of this
Agreement and for so long as the Project remains authorized, the
Non - Fede =al 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
16
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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
obliaations 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 implemenration, operation,
maintenance, and repair of the Project, and anv Project related
betterments, except for damages due to the fault or negligence of
the Government or its contractors.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 50 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, ey_tent 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 responsible_ for complying with the Single Audit Act of
1984, 31 U.S.C. Sections 7501 -7507, as implemented by Office of
Management and Budget (OMS) Circular No. A -133 and Department of
17
vG'V.p .•o: xnL 4`4V rAA 41, 4az gZ10 tLL11f'UUmBtl 6'dl K�5 et' 5UU.a
Defense 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 -87 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 Ac.. of 1964, Public Law 88 -352 (42 U.S.C. 20004), 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 party may have or for violation of any law.
18
ARTICLE XIII - OFFICIALS NCT TO BENEFIT
No member of or delegate to the Congress, nor any resident
commissioner, shall be admitted to any share or part of this
Agreement, or to any benefit that may arise therefrom.
ARTICLE XIV - TERMINATION OR SOSPENSI014
A. If at any time the Non- Federal Sponsors fails to fulfill
their ebligations under Article II.B., II.D., !I.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
t'r.is 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 ether non- _edera'- 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
ether :arty 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. Ir, 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
obl_gat -en previously incurred. Aay 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 tc
the date on which such payment became deiinquent,.or auctioned
icrmediataly prior to the beginning of each additional 3 -month period,
if the period of delinquency exceeds 3 months.
19
111P 14:25 rAA 2iJ 40Z 4Z'y t11\ir'=meii.Cai. KeS br' LV11 .'
ARTICLE XV" - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the
District Fngineer, 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 to be necessary
to identity the existence and extent of any hazardous substances
regulated under the Comprehensive Environmental Response,
CompensatLon, and Liability Act (hereinafter "CERCLA"), 42 U.S.C.
Sections 9601 -4675, that may exist_ in, on or under lands,
easements,, and 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 lands that the Government determines
,.o be subject to the navigation serv'tude, only the Government sha'1
Perform such investigations unless the District Engineer provides
the Non- Federal Sponsors with prior specific written direction, in
which cas1� 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 aud_t in accordance with
Article X.C. of this Agreement to determine reasonableness,
allocabilty, and allowability of costs.
B. In the event it is discovered through any investigat_on for
hazardous substances or other means that hazardous substances
regulated under CERCLA exist in, on, cr under any lands, easements,
or rights -cf -way, that the Government determines, pursuan: to
Article III_ of this Agreement, the Non - Federal Sponsors must provide
for the implementation, operation, and maintenance of the ?roject,
the Non- Federal Sponsors and the Government shall provide pzomat
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
in..plementation, whether to continue with work on the Project,
suspend future Performance under this Agreement, or terminate this
Agreemen- 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 -o°- -way that the
Government determines, pursuant to Article III of this Agreement, to
be required for the implementation, operation, and maintenance of
rhe Project. Should the Government and the Nor.- Federal Sponsors
0
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•
determine to initiate or continue w_th iiplementatio- after
considering any liability that may arise under CERCLA, the Non
Federal Sponsors shall be responsible, as between the Government anc
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 anv 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
Govern.-nent shall be included in total project costs and cost shared
in accordance with the terms of this Agreement.
C. 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
Non- 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 she 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 Nave been duly given if in writing and either delivered
personally, or by telegram, or mailed by first - class, registered, or
certified mail, as follows:
2 1
Zoos
020001 TR 1025 FAI 213 452 4219 EnIlronmental Res Br Wag
0 •
If to the Nor. - Federal Sponsors:
County of Crance
300 North Flower Street
Santa Ana, California 92703
City of Newport Beach
City Hall
3300 Newport Boulevard
Newport Beach, California 92658 -8915
If tc the Government:
District Engineer,
U. S_ Army Engineer District, Los Angeles
ATTN: CESPL -PM -C
911 Wilshire blvd
Los Angeles, California 90017 -2325
B. A party may change the address to which such
comnunicaticns 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 been, received by
the addressee at the earlier of such time as it is actuallv
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 idertification, 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 MOM), the costs of 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 sotal
amount the Covernment is authorized to expend for the Project.
22
:. un; 01 1"L i4:�D r.iA G10 4JZ 4-1tl t.MIVQli(fieiMal KeS br'
0
C. The Government shall not incur costs for mitigation and
data recovery that exceed the statutory one percent lir.,it 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 cb'_igaz ions are 'limited to $5,000,000. The
Non - Federal Sponsor shall be responsible for all total project costs
that exceed this amount.
23
WJU!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
BY:
John P. Carroll
Colones:, Corps of Engineers
District Engineer
Los Angeles District
DATE:
SIGNED ANJ) CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARC
Darlene J. Bloom
Clerk, Board of Supervisors
Orange County, California
ATTEST:
LaVonne M. Harkless, Citv Clerk
City of Newport Beach
THE COUNT" OF ORANGE
F4w
24
Chairman
Board of Supervisors
Orange County, California
DATE:
THE C =TY OF NEWPORT BEACH
ME
John E. Noyes
Mayor
APPROVED AS TO FORM:
Laurence M. Watson
Deputy County Counsel
Grange County, California
Robert Burnham, City Attorney
City of Newport Beach
?J V , I
02/03;01 THU 14:27 FAX 213 4513 Environmental Res Br • Z012
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
02108/01 THU. 14:28 FAX 213 452 4219 Environmental Res B*
•
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
Rober- Burnam
City Attorney
City of Newport Beach
26
Z013
02/08/01 THU 14:29 FAX 213 4519 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
LATE:
ATTEST:
Cle_k, Board of Supervisors
Orange County
27
John E. Noyes
Mayor
City of Newport Beach
GATE.
Q014
• • W I T NU-1M4 N t (�
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
2
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.
3
III. 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
9
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
R
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. C000eration
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
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 _
VIII. 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
7
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 parry. 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
N.
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 -parry 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 or this SHA shall be governed by and construed in accordance with
a
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).
9. 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:
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