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HomeMy WebLinkAboutC-5018 - MOA for Acceptance and Return of Contributed Funds for Maintenance Dredging of Newport Beach Harbor00 MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE Ln ARMY AND THE CITY OF NEWPORT BEACH FOR ACCEPTANCE AND v RETURN OF CONTRIBUTED FUNDS FOR MAINTENANCE DREDGING OF NEWPORT BEACH HARBOR, CALIFORNIA This MEMORANDUM OF AGREEMENT (hereinafter referred to as the "MOA"), entered into this SA43-- day of MAR-C—A 12012, by and between the DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government"), represented by the U.S. Army Engineer, Los Angeles District (hereinafter the "District Engineer"), and the City of Newport Beach (hereinafter referred to as the "Contributor"), represented by its Mayor. WITNESSETH THAT: WHEREAS, the River and Harbor Act of 1945, Public Law 79-14, authorized construction of the Federal Navigation Channel at Newport Bay Harbor, California (hereinafter referred to as the "Project") in accordance with the recommendations contained in the report of the Chief of Engineers published in Senate Document No. 138, 78rd Congress, 1 st Session; and WHEREAS the Corps is authorized to perform maintenance of the Project using funds appropriated for dredging and disposal of materials from areas located within the Authorized Federal Navigation Channel; and WHEREAS the City of Newport Beach conducted investigations in 2009 that identified sediment located within some areas of the Channel to be not suitable for open ocean disposal or for beach disposal; and WHEREAS the City of Newport Beach has obtained approval to place up to 130,000 cubic yards of unsuitable sediment in Slip of the Middle Harbor of the Port of Long Beach; and WHEREAS sediment that is deemed suitable for open ocean disposal will be disposed of at the LA-3 Ocean Dredged Material Disposal Site; and WHEREAS, the Contributor considers it to be in its own interest to expedite the maintenance of the Project by voluntarily contributing funds (hereinafter referred to as "Contributed Funds") to be used by the Government for that purpose; and WHEREAS, the Government is authorized pursuant to 33 U.S.C. Section 701h, to accept Contributed Funds, to be expended in connection with Federally appropriated funds, for an authorized work of public improvement of rivers and harbors whenever such work and expenditure may be considered by the Chief of Engineers to be advantageous to the interests of navigation; NOW, THEREFORE, the Government and Contributor agree as follows: 1. Subject to any necessary appropriation, the Contributor shall contribute to the Government the following sums, in cash: $2,500,000.00. 2. The contribution specified in paragraph 1 above shall be made as follows: provide the Government with the full amount of the required funds by Electronic Funds Transfer no later than March 15, 2012, directed to the USACE Finance Center, 5722 Integrity Drive, Millington, TN 38054. 3. In the event that the Contributor contributes more or less than the amount listed in paragraph 1 above, or makes its contributions earlier or later than the date listed in paragraph 2 above, this MOA shall apply to whatever funds are contributed by the Contributor to the Government pursuant to this MOA; however, the Government shall not obligate any Contributed Funds before they are received and available. 4. The Government shall use all Contributed Funds to perform maintenance dredging of the Project, except with regard to excess Contributed Funds, which are addressed in paragraph 8 of this MOA. The Contributor shall bear all additional costs of the work for which funds are accepted including any additional environmental compliance costs. 5. The Government shall provide the Contributor with quarterly accountings of its expenditures of Contributed Funds for maintenance. The first such accounting shall be provided within 30 days after the final day of the first complete Government fiscal year quarter following receipt of the Contributed Funds, and subsequent accountings shall be provided within 30 days after the final day of each succeeding quarter until the Contributed Funds are completely expended or the Government concludes maintenance on the Project. 6. Unless directed in law, the Government shall not reimburse the Contributor for Contributed Funds expended by the Government. 7. The Government shall not credit the Contributor for the Contributed Funds so as to reduce any obligation for which the Contributor is otherwise responsible or would be required of the Contributor. 8. The Government, subject to the availability of funds and subject to the approval by the Secretary of the Army, shall return to the Contributor, Contributed Funds not expended by the Government no later than 2 years from the date of execution of this agreement by the Government. Any Contributed Funds the Government considers necessary to complete and close out any contract awarded in reliance on the Contributor's Contributed Funds prior to the applicable 2 year anniversary date, including, but not limited to, funds necessary to resolve any outstanding claims, shall not be returned until the contract has been completed, and all claims have been resolved. 9. No credit or repayment is authorized, nor shall be provided, for the Contributed Funds provided by the Contributor. 10. Nothing herein shall constitute, represent, or imply any commitment to budget or appropriate funding for this Project in the future; and nothing herein shall represent, or give rise to, obligations of the United States. 11. Before any party to this MOA may bring suit in any court concerning an issue relating to this MOA, such party must first seek in good faith to resolve the issue through negotiation or other forms of nonbinding alternative dispute resolution mutually acceptable to the parties. 12. The Contributor shall hold and save the Government free from all damages arising from the design, construction, operation, maintenance, repair, replacement, and rehabilitation of the Project and any Project -related betterments, except for damages due to the fault or negligence of the Government or its contractors. 13. Federal and State Laws. In the exercise of their respective rights and obligations under this MOA, the Contributor and the Government agree to comply with all applicable Federal and State laws and regulations, including, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Anny". 14. Relationship of Parties. In the exercise of their respective rights and obligations under this MOA, the Government and the Contributor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 15. Officials Not to Benefit. No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this MOA, or to any benefit that may arise therefrom. 16. Notices. a. Any notice, request, demand, or other communication required or permitted to be given under this MOA shall be deemed to have been duly given if in writing and either delivered personally or by telegram or mailed by first-class, registered, or certified mail, as follows: If to the Contributor: City of Newport Beach Post Office Box 1768 Newport Beach, California 92658-8915 If to the Government: Army Corps of Engineers ATTN: CESPL-PM-N 915 Wilshire Boulevard Los Angeles, California 90017 b. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this paragraph. c. Any notice, request, demand, or other communication made pursuant to this paragraph shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven days after it is mailed. 17. 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. IN WITNESS WHEREOF, the parties have executed this MOA as of the day, month, and year first above written. THE DEPARTMENT OF THE ARMY BY: R. Mark Toy, P Colonel, Corps Q—Jgineers Commander and District Engineer 2 CITY OF NEWPORT BEACH Nancy ar ner Mayor City of Newport Beach Approved as to Form: ,— c Aaron Harp City Attorney City of Newport Beach Leilani Brown City Clerk City of Newport Beach CERTIFICATE OF AUTHORITY I, Aaron Harp, 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 Authorized Federal Navigation Channel at Newport Beach, California, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 1962d-5b), 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 1st day of March, 2012. ._ ------- - Aaron Harp City Attorney City of Newport Beach 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. City of Newport Beach DATE: 0