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HomeMy WebLinkAboutCC AG PKT 2008-11-10 #OAGENDA STAFF REPORT DATE: November 10, 2008 TO: Honorable Mayor and Ciiy Council THRU: David N. Carmany, City Manager FROM: Vince Mastrosimone, Director of Public Works SUBJECT: AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS SUMMARY OF REQUEST: The City Council is asked to approve Resolution No. 5809 directing the City Manager to sign the attached California Department of Boating and Waterways Agreement and allocate $1,000,000 for this project. BACKGROUND: As a result of sand transport away from East Beach, the City continues to seek replenishment for its eroded beach to provide improved flood protection to public infrastructure, the pier, the public promenade, parking lots, and private residences within the vicinity. The City purchases beach fill material, if and when funds are available, when the beach becomes extremely narrow and/or economical purchase opportunities exist. Currently, the United States Army Corps of Engineers (USAGE) is preparing to begin a periodic dredging project to mitigate damage to Orange County coastline caused by construction of Federal navigation and flood control works Anaheim Bay. Dredging for renourishment has occurred since the 1960's. The USAGE has hired a contractor to dredge and place approximately 1.8 million cubic yards of nourishment sand on the Surfside/Sunset Beaches. Seal Beach was presented with the opportunity to provide nourishment to East Beach working in contunction with the Stage 12 USAGE project. The City would see a large cost savings by partnering with USAGE as opposed to doing a similar nourishment project on our own. The price per cubic yard of sand would be much less with this project as opposed to railing sand in, which was about $20 per cubic yard for the 1997 Palmdale project, or performing our own dredging protect. The City would realize savings on mobilization costs and some of the permitting costs as well. At the budget meetings in June of 2007, the City Agenda Item ~ Page 2 reserved $1 million dollars for this project. At the City Council meeting in November of 2007, staff was provided with direction to prepare and secure the necessary permits and environmental clearances for this partnership. The USACE opened bids for this project in September with work for Seal Beach as an optional bid item at $10 per cubic yard. See attached bid sheet. It is projected that East Beach will receive between 60,000 and 65,000 cubic yards of compatible nourishment sand after factoring in reduced re-mobilization charges and inspection federal inspection costs. Federal partnership rules require a state agency act as the local sponsor for this profect. As such, the City must transfer funds to the State sponsor, The California Department of Boating and Waterways (DBW) which will in turn pay the USACE to perform the work on east beach. Attached is the agreement between the City and DBW to transfer these funds and oversee the work being performed. FISCAL IMPACT: Staff is requesting a budget amendment (by separate agenda item) to appropriate $1,000,000 from the general fund for this profect. The agreement between the City and DBW is for $925,000 to cover construction and federal inspection costs. The remaining $75,000 is requested to finish acquiring the necessary permits and to pay for local inspection of the project. RECOMMENDATION: It is recommended that the City Council approve Resolution No. 5809 directing the City Manager to sign the attached California Department of Boating and Waterways Agreement. SU MI BY Attachments: A. Resolution No 5809 B California Department of Boating and Waterways Agreement C. Bid Sheet NOTED AND APPROVED: ~~~1 mce Mastrosimone David Carman ,City Manager Director of Public Works R \-2008 Agendas\1 t-10.08 Council Meeting\PW -Staff Report - O - Cald Depart of Boating and Watervveys -Res #5809 doc RESOLUTION NUMBER 5809 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH APPROVING AN AGREEMENT BETWEEN THE CITY OF SEAL BEACH AND THE CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS REGARDING SAND NOURISHMENT WHEREAS, The City wishes to partner with the Urnted States Army Corps (USAGE) of Engineers to provide sand nounshment to East Beach, and WHEREAS, the USAGE has contracted with Manson Construction to dredge and place fill sand on east beach as an optional bid item, and WHEREAS, the City is required to fund this optional item in advance of the work; and WHEREAS, the California Department of Boating and Waterways (DBW) is the approved local funding source for the USAGE protect and all funding for work on East Beach must be paid to (DBW) which wdl in turn pay the USAGE. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY RESOLVE Section 1. The City Councl hereby approves the contract between the City of Seal Beach and the California Department of Boating and Waterways regarding sand nounshment (the "AgreemenY~ Section 2 The Council hereby directs the City Manager to sign the Agreement PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a meeting hereof held on the 10th day of November , 2008 by the following vote AYES COUNCILMEMBERS NOES COUNCILMEMBERS ABSENT COUNCILMEMBERS ABSTAIN COUNCILMEMBERS ATTEST Mayor City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of Seal Beach, California, do hereby certify that the foregoing resolution is the ongmal copy of Resolution Number 5809 on fde in the office of the City Clerk, passed, approved, and adopted by the City Council of the City of Seal Beach, at a regular meeting thereof held on the 10th day of November , 2008 City Clerk STgTE OF G4LIFORNIA STANDARD AGREEMENT STD 213 (Rev O6Po3) AGREEMENT NUMBER 08-300-801 REGISTRATION NUMBER NA 1. This Agreement is entered into between the State Agency and the Contractor named below: STATE AGENCY'S NAME California Department of Boating and Waterways (Department) CONTRACTOR'S NAME City of Seal Beach (City) 2. The term of this October 1, 2008 through June 30, 2010 Agreement is: 3. The maximum amount $ 925,000.00 of this Agreement is: Nine Hundred Twenty Five Thousand Dollars 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement. SEAL BEACH NOURISHMENT PROJECT Exhibit A -Beach Erosion Control Project Participation Agreement -Stage 12 Exhibit B - USAGE Agreement -Stage 12 Periodic Nourishment of the Orange County Beach Erosion Control Project From San Gabriel River to Newport Bay, Orange County, California IN WRNESS WHEREOF, this Agreement hes bcen executed by the parties hereto. CONTRACTOR CONTRACTOR'S NAME (d other than an nK$valua6 state whethera i City of Seal Beach BY (AUthonzetl .es David Germany, City Manager ADDRESS 211 8'~ Street, Seal Beach, California 90740 STATE OF CALIFORNIA ~~ AGENCY NAME and BY (AUlhonzetl OF PERSON SIGNING Director 3 pages 27 pages Services Use Onty ^ Exempt per ADDRESS 2000 Evergreen Street, Suite 100, Sacramento, California 95815-3888 Exhibit A BEACH EROSION CONTROL PROJECT PARTICIPATION AGREEMENT ARTICLE 1 -RECITALS A. The Department of Boating and Waterways, herein referred to as the "Department', is authorized under the Harbors and Navigation Code Section 65.2 to cooperate by contract with any federal, state, county or municipal agency to plan and construct beach erosion and stabilization works, upon such terms and conditions and in such a manner as will be for the best interest of the State. B. The Department has entered into an agreement with the U. S. Army Corps of Engineers, herein referred to as the "Government', to construct beach nourishment works for the improvement and protection against erosion by waves and currents along the shore from Seal Beach to Newport Bay in Orange County, California. This effort is defined as Stage 12. C. The Govemment is authorized to provide "additional work' in conjunction with their work for Stage 12 as set forth m Article II Gi &3 of the Protect Partnerehrp Agreement between the Department of the Army and the State of California Department of Boating and Wateways. D. Such "additional work" will include beach nourishment at Seal Beach and is included in the Government's project specifications and bid package as a separate bid item designated as Option 5A (Set-up at Seal Beach) and 5B (Dredging, Placement at Seal Beach). E. The Ciiy of Seal Beach is hereafter referred to as the "City' and the beach nourishment effort to be performed by the Govemment under Options 5A and 5B for the City shall be herein referred to as the "Project'. The Department and the City agree, sublect to the availability of funds, to the general terms as follows: ARTICLE 2 -UNDERTAKING BY THE DEPARTMENT A. Department has contracted with the Govemment to cause Stage 12 to include beach nourishment for the City by placing between 50,000 to 150,000 cubic yards of sand fill on the City's shoreline, subject to the contribution of funds as provided herein. B. The Department will pay the Government up to Nine Hundred Twenty Fnre Thousand n~oe~za.~zooa 1 oeaooema~aar Exhibit A Dollars ($925,000) as the Ciiys share of the cost of the Project; however, such payment will only be made if the Department receives advanced payment of Nine Hundred Twenty Five Thousand Dollars ($925,000) from the City. C. Department shall furnish to City within ONE HUNDRED TW ENTY (120) days after completion and acceptance of the Project a full accounting of expended funds, if and only if the Government first furnishes a full accounting to the Department. ARTICLE 3 -UNDERTAKING BY THE CITY A. The City shall pay 100 percent of the cost of the Project. B. City shall obtain and provide all local, state and federal receiver site permits and regulatory clearances prior to construction and within the project construction time frame. C. City shall be responsible for the acquisition of lands, easements, and rights-of-way; performance of relocations; or construction of improvements required on (ands, easements, and rights-of-way to enable the disposal of dredged or excavated material for the Project. D. City shall be responsible for any costs of response and cleanup in the event it is discovered through any investigation for hazardous substances or other means that hazardous substances in, on, or under any lands, easements, or rights-of-way to be required for periodic nourishment, operation, and maintenance of the Project. ARTICLE 4 -UNEXPENDED BALANCES In the event that the Project is not completed by June 30, 2010, Department, or its successor in interest, shall diligently pursue refund of any unexpended balances and shall upon receipt refund any such monies to the City. ARTICLE 5-TERMINATION OR AMENDMENT A. The term of this Agreement shall begin on the effective date of this Agreement and shall continue until June 30, 2010. B. This Agreement maybe terminated or amended by the mutual consent of the Department and the City. ARTICLE 6- EXAMINATION AND AUDIT The Department and City the shall be subject to the examination and audit of the State Auditor General for a period of three (3) years after final payment under the wntrect in accordance with Government Code Section 10532. The examination and audit shall be confined to those matters PEV®P108/22/2008 2 06i00B01A 13bJ Exhibit A connected with the performance of this Agreement, including, but not limited to, the costs of administering the Agreement. ARTICLE 7 -GENERAL SERVICES APPROVAL This Agreement is not valid until executed bythe City and approved by the California Department of General Services. ARTICLE 8 -INDEMNIFICATION The City shall hold and save the Department free from all damages and liabilities arising from construction of the Project consisting of periodic nourishment, operation, maintenance, repair, rehabiliffition, and replacement of the Project, except for damages due to the fault or negligence of the State or its contractors. ARTICLE 9 -NOTICES The parties agree that to avoid unreasonable delay in the progress of the services performed hereunder; the City and the Department shall each designate specific staff representatives for the purposes of communication between parties. Any notice or other written communication required or which may be given hereunder shall be deemed given when delivered personally, or if mailed, Three (3) days after the date of mailing; unless by express mad, facsimile (FAX) telecopy, a-mail, or telegraph, then upon the date of confirmed receipt to the following represenffitives: For the Department: Department of Boating and Waterways Attention: Kim Sterrett, Public Beach Restoration Program 2000 Evergreen Street, Suite 100 Sacramento, CA 95815 Telephone Number: (916) 263-8157 FAX Number: (916) 263-1852 Sterrett~dbw.ca.cov For the City: City of Seal Beach Attention: David Spitr 211 8~' Street Seal Beach, CA 90740 Telephone Number: (562) 431-2527, ext 1331 FAX Number: (562) dsoitz~ ci.seal-beach.ca.us n~us/eP/zooe 3 aesooso~a~aa~ DBu~ 07- oo-8C1 ~XFIBR "8' ~tskc~bn ~.~~ ..-,~ ~~' PROJECT PARTNERSHJP AGREEMENT ~.,y d BETWEEN THE DEPARTMENT OF THE ARMY ' AND THE STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS FOR STAGE 12 PERIODIC NOURISHMENT ~ OF THE ORANGE COUNTY BEACH EROSION CONTROL PROJECT FROM SAN GABRIEL RNER TO NEWPORT BAY ORANGE COUNTY, CALIFORNIA THJS AGREEMENT is entered into this ~Z day of 2008, by and between the Department of the Army (hereinafter the "Government"), represented by the Assistant Secretary of the Army (Civil Works) and the State of California, Department of Boating and Waterways, (hereinafter the "State"), represented by the Director. WTTNESSETH, THAT; WHEREAS, construction of the Orange County Beach Erosion Control Project between the San Gabriel River and Newport Bay, California was authorized by Section 101 of the Rivets and Harbors Act of 1954 (Public Law 83-780) under the title "Anaheim Bay Harbor, California", as amended by Section l0I of the Rivers and Harbors Act of 1962 (Public Law 87- 874) under the title "Orange County, California", and where the plan of improvem~ts are described in House Document 349, Eighty-third Congress (1954), and House Document 602, Eighty~evendr Congress, respectively (hereinafter the "Authorized Project" as defined in Article IA of this Agreement); WHERF,p-S, the River and Harbor Act of 1962, Public Law 87-874, states the Federal share for the Authorized project is 67 percent of the first costs and costs of periodic nourishment of the sand placement features and maintenance of the breakwaters, in accordance with the plans in House Document 602; WHEREAS, Section 551 of the Water Resources Development Act of 2000 (Public Law 106-541) directed the Secretary to treat the Surfside/Sunset and Newport Beach element of tbe project for beach erosion, Orange County, California authorized by Section I01 of the Rivers and Harbors Act of 1962 as continuing construction; WfiEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended (42 U.S.C. 1962d-Sb), and Section 103(j) of the Water Resources Developmeot Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213Q)), provide, inter olio, that the Secretary of the Army shall not commence construction of any water resources project, or sepazable f , element thereof, until each non-Federal interest has entered into a written a f~mishe its required cooperation for the project or separable element; WHEREAS, the Agreement between the United States of America and the State of California, Department of Water Resources executed on Segtenrber 20,1963 and subsequent agreements through August 9, 2001 have set forth the terms for initial construction and periodic nourishment in the area known as the 5urfside~unset Beach, and initial constrmction of rock groins and protective beach at west Newport Beach, within the Authorized Project reach, in Orange County, California (hereinafter the "Stages 1-11'x; WF~RF.AS, the initial construction of the shore protection measures in Seal Beach were wmpleted in 19Sg, and the initial construction of the protective and feeder beach at Surfside- Sunsetwas completed in 1964, and the initial construction of the groin field and protective beach at west Newport Beach was completed in 1973; WEIEREA5, the State has control over and has provided all lands, easements, and rights-of--way, including those required for relocations, the borrowing of material, and the disposal of dredged or excavated material, and has performed or ensured perforarance of all relocations, and rnnstructed improvements required on lands, easements, andrights-of--way to enable the disposal of dredged or excavated material that the Government has determined to be required or to be necessary for Stage L through Stage 11, except for lands awned by the Government; WHEREAS, the Government and the State desire to enter into a Project Partnership Agreement (hereinafter the "Agreement") for the upcoming iteration of periodic nourishment (hereinafter the "Stage ]2" as defined in Article LH. of this Agreement); WHEREAS, the Govertunent and State have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost sharing and financing of Stage 12 in accordance widr the terms of this Agreement; and WHEREAS, the Government and the State, in connection with this Agreement, desrre to foster a partnering strategy and a working relationship between the Government and the State through a mutually developed formal strategy of commitment and communication embodied heroin, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the State, and facilitate the suxesaful implementation of Stage 12. NOW, THEREFORE, the Government and the State agree as follows: ARTICLE I - A. The term "Authorized ProjecP' shall mean the protective measures on the beaches extending from the San Gabriel River to Newport Bay, California including the a groin and beach fill at the City of Seal Beach as generally described in House Document 349, Eighry- ThirdCongress, dated 1954; a protective beach at Surfsidestrnsetcoropleted in 1964 and a groin f eld and beach fill at west Newport Beach as generally described in House Document 602, Eighty Seventh Congress, dated October 2, 1962, the report of the Chief "that August 8,1962. B. The term "Stage 72" shall mean placement of approximately 1,000,000 cubic yards of sand from an offshore borrow site on the beach in the vicinity of Surfside, Cahfomia and placement of approximately 100,000 cubic yards of sand at Newport Beach, California as gerreraily described the report of the Chief of Bngineers dated August 8,1962 and as modified by the Chief of Engineers on September 13,1963. C. The term "total costs of Stage 12" shall mean the sum of all costs incurred by the State and the Government in accordatrec with the terms of this Agreement directly related to Stage 12. Subject to the provisions of this Agreement, the tens shall include, but is not necessarily limited to: the Government's engineering and design costs during consnvetion; the State's and the Government's costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XIV.A. of this Agreement; the Government's costs of historic preservation activities in accordance with Article XVII.A. and Article XVII.B.1. of this Agreement; the Government's actual wnsuvction costs; the Government's supervision and administration costs; the State's and the Government's costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; the Government's costs of contract dispute settlements or awards; the value of lands, easements, rights-of-way, relocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material for which the Government affords credit in accordance with Article IV of this Agreement or for which reimbursement by the Government is required pursuant to Article II.B.3. of this Agreement; and the State's and the Govemmant's costs of audit in accordance with Article X.B. and Article X.C. of this Agreement. The term does not include any costs for operation, maintenance, repair, or rehabilitation of Stage IZ; any costs of initial wnsuuctioa, periodic nourishment, or maintenance of the Authorized Project incurred under any other agreement; any costs of addiflonal work or bettetneents under Article II.G.2. and Article II.G.3. of this Agtement; any ccets of dispute resolution under Article VII of this Agreement; the Govemment's costs for data recovery activities associated with historic preservation in accordance with Article XVII.B.2. and Article XVII.B.3. of this Agreement; or the State's costs of negotiating this Agreement. D. The term "period of rnnstrr~ction" shall mean the time from the date the Government issues the solicitation for the fast construction contract for Stage 12 or commences construction of Stage 12 using the Government's own forces, whichever is earlier, to the date that construction of Stage 12 is complete, as determined by the Government, or the date that this Agreement is terminated in accordance with Article X1II or Article X1V.C. of this Agreement, whichever is earlier. $. The term "financial obligations for Stage 12" shall mean the financial obligations of the Government that result or would result in costs that are or would be included in total costs of Stage 12 except for obligations pertaining to the provision of lands, easements, and rights-of- way, the performance of relocations, and the eonstruction of improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material. ~`~~~ F. The term "State's proportionate share" shall mean the ratio of the State's total contribution of funds required by Article II.B.2. of this Agreement to./mancial obligations for Stage 12, as projected by the Government. G. The term "highway" shall mean any highway, roadway, street, or way, including any bridge thereof, that is owned by a public entity. H. The term "relocation" shall mean providing a functionally equivalent facility to the owner of a utility, cemetery, highway, railroad, or public facility when such action is authorized in accordance with applicable legal principles of just compensation; or providing a functionally equivalent facility when such action is specifically provided for, and is identified as a relocation, in the authorizing legislation for the Authorized Project or any report referenced therein. Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant demolition of the affected facility or part thereof. L The term `~iarctiona! portion of Stage 12" shall mean a portion of Stage 12 for which construction has been completed and that can function independently, as determined by the District Engineer in writing, although the remainder of Stage 12 is not complete. J The term "betterment" shall mean a difference in the construction of an element of Stage 12 that results from the application of standards that the Government detentnirres exceed those that the Government would otherwise apply to the construction of that element. The term does not include any construction for features not included in Stage 12 as defined in paragraph B, of this Article. K. The term "Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army, plus any non-Federal contribution required as a matching share therefore. L. The teen' jlecal yeaP' shall mean one year beginning on October 1 and ending on September 30. ARTICLE R - OBLIGATIONS OF THE GOVERNMENT AND THE STATE A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter the.°`Congress"} and using those funds and funds provided by the State, shall expeditiously construe Stage 12, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. 1. The Government shall not issue a solicitation for a contract for Stage 12 or commence constrrictioa of Stage 12 using the Government's own forces until the State has confirmed in writing its willingness to proceed with Stage l1. 2. The Government shall afford the State the opportunity to review and rnmment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. To the extent possible, the Government shall afford the State the opportunity to review and comment on aQ proposed contract 4 ~~ modifications, including change orders. In any instance where providing the State with notification of a contract modification is aot possible prior to execution of the contract modification, the Governament shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the State the opportunity to review and comment on all contract claims prior to resolution thereof. The l iovemment shall consider in good faith the comments of the State, but the contents of solicitations, award of contracts or commencement of construction using the Government's own forces, execution of contract modifications, resolution of contract claims, and performance of all work oa Stage 12 shall be exclusively within the control of the Government 3. At the time the District Engineer furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the Government for Stage 12, the District Engineer shall famish a wpy thereof to the State. 4. As of the effective date of this Agreement, $9,7I5,000.00 of Federal funds is currently projected to be available far Stage 12. The Government makes no commitment to request Congress to provide additional Federal funds for Stage 12 of the Authorized Project. Further, the Government's financial participation in Stage 12 is limited to the Federal funds that the Government makes available to the Authorized Project for Stage 12. B. The State shall contribute 33 percent of total costs of Stage 12 in accordance with the provisions of this paragraph. 1. In accordance with Article III of this Agreement, the State shall provide all lands, easements, anti rights-of--way, including those required for relocationt, the borrowing of material, and the disposal of dredged or excavated material, shall perform or ensure performance of all relocations, and shat) corrstnmct improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material that the Government determines to be required or to be necessary for Stage 12. 2. The State shall provide funds in aceordance wittm Article VLB. of this Agreement in the amount necessary to meet tbe State's required 33 percent share of total costs of Stage I2 if the Government projects at nay time thaz the collective value of the followmg contributions will be less than such regalred share: (a) the value of the State's contributions under paragraph B.1. of tlmis Article as determined in accordance with Article N of this Agreement; and (b) the value of the State's contributions under Article V, Article X, anti Article XNA. of ftris Agreement. 3. The Government, subject to the availability of funds, shall refund or reimburse to the State any contributions in excess of the State's required 33 percent share of total casts of Stage 12 if the Gov~~+*+~~t deterrnitmes at any time that the collective value of the following contributions has exceeded such required share: {a) the value of the State's contributions under paragraph 8.2. of this Article; (b) the value of the State's contributions under paragraph B.1. of this Article as determirmed in accordance with Article N of this Agreement; and (c) the value of the State's contribations under Article V, Article X, and Article XN.A. of this Agreement. After such a determination, the Government, in its sole discretion, may acquire any remaining lands, easements, and rights-of-way requued for Stage-12, perform any remaining relocations necessary for Stage 12, or construct any remaining improvements required on lands, easements, and rights-of--way to enable the disposal of dredge3`or e~"cav material required for Stage 12 on behalf of the State. Notwithstanding the acquisition of lands, easements, and rights-of--way, performance of relocations, or construction of improvements required on lands, easements, and tights-of--way to enable the disposal of dredged or excavated material by the Government under this paragraph, the State shall be responsible, as between the Government and the State, for any costs of cleanup and response in accordance with Article X1V.C. of this Agreement. C. When the District Engineer determines that Stage 12, or a frtrsctiorsal portion of Stage l2, is complete, the District Engineer shall so notify the State in writing and famish the State with copies of all of the Government's Written Notices of Acceptance of Completed Work for ail contracts for Stage l2 that have not been provided previously and a final Operation, Maintenance, Repair, and Rehabilitation Manual (herenafter the "OMR&R Manual") or, if the final OMR&R Manual is not available, an interim OMR~SR Manual for such work, or an update to the existing OMR&R Manual for such work Upon such notification, the Government also shall furnish to the State a copy of all final as-built drawings for Stage 12 or such completed portion if such drawings are available. Not later than 6 months after such notification by the Government that Stage I2 is wmplete, the Government shall famish the Stan with all final as-built drawiags for Stage 12. In the event the final OMR&R Manual or update of the existing OMR&R Manual and all final as built drawings for Stage 12 cannot be completed within the 6 month period, the Government shall provide written notice to the State, and the Government and the State shall negotiate an acceptable completion date for famishing such documents. D. Upon notification from the District Engineer in accordance with pazagraph C. of this Article, the State shall operate, maintain, repair, and rehabilitate Stage 12, or the functional portiors of Stage l2 as the case may be, in accordance with Article V III of this Agreement. H Upon conclusion of the period of construction, the Government shall conduct an accounting, in accordance with Article VI.C. of this Agr+eemeat, and furnish the results to the State. F. The State shall not use Federal program funds to meet any of its obligations for Stage 12 under this Agreemett unless the Federal agency providing the Federal portion of such funds verifies in writing that expenditure of such funds for such purpose is wtpressly authorized by Federal law. G. The State may request the Government to perform or provide, on behalf of the State, the services or work (hereinafter the "additional work") described in this paragraph. Such requests shall be in writing and shall describe the additional work requested to be performed or provided. If in its sole discretion the Government elects to perfomt or provide the requested additional work ar any portion thereof, it shall so notify the State in a writing that sets forth any additional 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 State shall be solely responsible for all costs of the additional work performed or provided by the Government under this paragraph and shall pay all such costs in accordance with Article VI.D. of this Agreement. 6 L Acquisition of lands, easements, and rights-of-way; perfortnance of relvcatioas; or consWction of improvements required on lands, easements, and tights-of--way to enable the disposal of dredged or excavated material for Stage 12. Notwithstanding acquisition of lands, easements, and rights-of--way, performance of relocations, or consUvction of improvements by the Government, the State shall be responsible, as between the Government and the State, for any costs of cleanup and response in accordance with Article }CIV.C. of this Agreement. 2. Inclusion of betterments in the constroction of Stage 12. In the event the Government elects to include any such 6eturments, the Government shall allocate the costs of the Stage 12 features Shat include Settermentr between total costs of Stage 12 and the costs of the betterments. 3. Placement of approximately 100,000 cubic yards of sand from an offshore borrow site onto the beach area at the City of Seal Beach between the Seal Beach Pier and the West Jetty of Anaheim Bay, anon-Federal responsibility of the Authorized Project. The responsibilities set out in Article XIV.C. of this Agreement also apply to this additional work. H. Not less than once each year the State shall inform affected interests of the extent of protection afforded by the Authorized Project. I. The State agrees to participate in and comply with applicable Federal floodplain management and flood insurance progruns. J. The State shall publicize floodpisin information in the area concerned and shall provide this information to zoning and other regulatory agencies for their use in adopting regulations, or taking other actions, to prevent unwise future development and to ensure compatibility with protection levels provided by the Authorezed Project. Ili The State shall prevent obstructions or encroachments on the Authorized Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) such as any new developments on Authorized Project lands, easements, andrights-of--way or the addition of facilities which might reduce the level of protection the Authorized Project affords, hinder operation and maintarance of the Authorized Project, or interfere with the Authorized Project's proper function. L For so long as the Authorized Project remains authorized, the State shall ensure conditions of public ownership and public use of the shores upon which the amount of Federal participation is based. M. The State shall at least twice annually and after storm events, perform surveillance of the beach to determine losses of nourishment material from the Authorized Project design section and provide results of such surveillance to the Government. N. The Staze shall ensure that necessary access roads, parking areas, and other associated public use facilities, will be open and available to all on equal terms. 7 , ARTICLE III -LANDS, EASEMENTS, RIGHTS-OF-WAY, RELOCATIONS, DISPOSAL AREAS IMPROVEMENTS, AND PUBLIC LAW 91-646, AS AMENDED COMPLIANCE A. The Government, after consultation with the State shall determine the lands, easements, and rights-of-way required for the construction, operation, and maintenance of Stage 12, including those required for relocations, the borrowing of materials, and dredged or excavated material disposal. The Government in a timely moaner shall provide the State with general written descriptions, including maps as appropriate of the lands, easements, and rights-of-way that the Government determines the State must provide, in detail sufficient to enable the State to fulfill its obligations under this paragraph, and shall provide the State with a written notice to proceed with acquisition of such lands, easements, and rights-of-way. Prior to the end of the period of rnnstrucrion, the State shall acquire all lands, easements and rights-af--way set forth in such descriptions. Furthernoore, prior to issuance of the solicitation for each Government contract for Stage 12 or prior to the Government incurring any jnaacial obligationsfor Stage 12 using the Government's own forces, the State shall provide the Govemmeat with authorization for entry to all lands, easements, and rights-of-way the Government determines the State must provide for that contract. For so long as the Authorized Pmject remains authorized, the State shall ensure that lands, easements, and rights-of--way that the Government determines W be required for the Authorized Project and that were provided by the State are retained in public ownership for uses compah'ble with the authorized purposes of the Authorized Project. B. The Govemrrtent, after consultation with the State, shall determine the improvements required on lands, easements, and rights-of--way to enable the proper disposal of dredged or excavated material associated with the construction, operation, and maintenance of Stage 12. Such improvements may include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de-wateriag pumps and pipes. The Government in a timely manner shall provide the State with general written descriptions of such improvements in detail sufficient to eaable the State to fulfill its obligations under this paragraph, and shall provide the State with a written notice to proceed with construction of such improvements. Prior to the end of the period of construction, the State shall provide all improvements set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government contract for Stage 12 or prior ~ the Government incurring any financial nbligationsfor Stage 12 using the Govenrment's own fames, the State shall grepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in acwrdance with the approved plans and specifications. C. The Government, after consultation with the State, shall determrine the relocations necessary for the construction, operation, and maintenance of Stage !2, including those necessary to enable the borrowing of material and the proper disposal of dredged or excavated material. The Government in a timely manner shall provide the State with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the State to fulfill its oblrgations under this paragraph, and shall provide the a written notice to proceed with such relocations. Prior to the end of the period of construction, the State shall perform or ensure the performance of all relocations as set forth in such descriptions. Futthernwre, prior to issuance of the solicitation for each Government contact for Stage 12 or prior to the Government incurring any financial obligations far Stage 12 using the Government's own forces, the State 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 wntract. D. The State in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the value of any rnntribution provided pursuant to paragraphs A., B., or C. of this Article. Upon receipt of such documents the Government, in accordance with Article IV of this Agreement and in a timely manner, shalt determine the value of such contributions for the purpose of including such value in total costs of Stage 12 and for deurmining the amount of credit to be afforded or reimbursement to be provided in accordance with the provisions of this Agmement. E. The State shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended (42 U.S.C. 4601~F655), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of--way required for the construction, operation, and maintenance of Stage 12, including those necessary for relocations, the borrowing of material, and dredged or excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and procedures in rnnaection with said Act. F. The Government, afar consultation with the State, has determined that for Stages 1 - 1 I conducted prior to the effective date of this Agreement, the State has provided all lands, easements, and rights of way required or necessary for such work, including those required foi relocations, the borrowing of materials, and dredged or excavated material disposal; all improvements required on lands, easements and rights-of-way to enable the proper disposal of dredged or excavated material associated with such work; and aU relocations necessary for such work, including those necessary to enable the borrowing of materials and the proper disposal of dredged or excavated material. Further, as of the effective date of this Agreement the Government projects that no additional lands, easements, rights-of--way, relocations, or improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material will be required for Stage 12. However, if the Govemrrrent, after consultation with the State, does determine that Iands, easements, rights-of--way, relocations, or improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material will be required for Stage 12, the Government and the State shall proceed in accordance with the provisions of this Article. ARTICLE IV. CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS-OF-WAX, RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS A. The Govemarent shall include in tatai costs of Stage 12 and afford credit toward the State's share of total costs of Stage 12 for the value of the lands, easements, and rights-of- way that the State must provide pursuant to Article III.A. of this Agreement; for the value of the relocations that the State must perform or for which it must ensure performance pursuant to Article I]I.C. of this Agreement; and for the value of the improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material thatthe State must provide pursuant to Article III.B. of this Agreement. However, no amount shall be included in total costs of Stage 12, no credit shall be afforded, and no reimbutsemerrt shall be provided for the value of any lands, easements, rights-of--way, relocations, or improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material that have been provided previously as an item of cooperation for another Federal projxt. Tn addition, no amount shall be included in total rnsts of Stage 12, no credit shall be afforded, and no reimbursement shall be provided for the value of lands, easements, rights-of- way, relocations, or improvements required on lands, easements, and rights-0f-way to enable the disposal of dredged or excavated material that were acquired or performed using Federal program funds unless the Federal agency providing the Federal portion of such funds verifies in writing that affording credit for the value of such items is expressly authorized by Federal law. $. For the purposes of determining the value to be included in total costs of Stage 12 and the amount of credit to 6e afforded or reimbursement to be provided in accordance with this Agreement and except as provided in paragraph F. of this Article, the value of lands, easements, and rights-of-way, including those necessary far relocations, the borrowing of 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 State on the effective date of this Agreement shall be the fair market value of such real property interests as of the date the State provides the Government with authorization for entry thereto. The fair market value of lands, easements, or rights-of-way acquired by rho State after the effective date of this Agreement shall be the fair market value of such real property interests at the 6me the interests are acquired. 2. General Valuation Procedures. Except as provided in paragraph B.3. or B.S. 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 State shall obtain, for each real property interest an appraisal that is prepared by a qualified appraiser who is acceptable to the State and the Government. The appraisal must be prepared in accordance with the applicable rules of just compensation, as specif ed by the Government. The fair market value shall be the amount set forth in the State's appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the State's appraisal, the State may obtain a second appraisal, and the fair market value shall be the amount set forth in the State's second appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the State's second appraisal, or the State chooses 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 State. In the event the State does not approve khe Government's appraisal, the Government, after consultation with 10 ~~ the State, shall consider the Government's and the State's appraisals and determine an amount based thereon, which shall be deemed to be the fair market value. b. Where the amount paid or proposed tc be paid by the State for the real property interest exceeds the amount determined pursuant to paragraph B.2.a. of this Article, the Government, at the request of the State, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the State, may approve in writing an amount greater than the amount determined pursuant to paragraph B.2.a of this Article, but not to exceed the amount actually paid or proposed to be paid. If the Government approves such an amount, the fair market value shall be the lesser of the approved amount or the amount paid by the State, but no less than the amount detemrirred 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 State shall, prior to instituting such proceedings, subarit to the Govemment notification in writing of its 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 Govemment in writing. a. If the Government previously has approved the appraisal in writing, or if the Govemment provides written approval of, ar takes no action on, the appraisal within such 60-day period, the State shall use the amount set forth in such appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. b. [f the Government provides written disapproval of the appraisal, including the reasons for disapproval, within such 69-day period, the Govemment and the State shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Govemment written disapproval. If, after such good faith consultation, the Govemment and the State agree as to an appropriate amount, then the State 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 State cannot agree as to an appropriate amount, then the State may use the amount set forth in its appraisal as the estimate of just compensation for the purpose of instituting the eminent 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 construction, operation, and maintenance of Stage 12 or the amount of any stipulated settlement or portion thereof that the Govemment approves in writing. 4. Incidental Costs. For lands, easements, orrights-of--way acquired by the State within afive-year period preceding the effective date of this Agreement, or at anytime 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, 11 ~~~ subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. Such incidental costs shall include, but not necessarily be limited 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 IILE. of this Agreement and other payments by the State for items that are generally recognized as compensable, and required to be paid, by applicable state law due to the acquisition of a real property interest in accordance with Article III of this Agreement. The value of the interests provided by the State in accordance with Article III.A. of the Agreement shall also include the documented costs of obtaining appraisals pursuant to paragraph B.2. of this Article, as determined by the Government, and subject to an audit in acwrdance with Article X.C. of the Agreement to determine reasonableness, allocability, and allowability of such costs. C. After consultation with the State, the Government shall determine the value of relocations in accordance with the provisions of this paragraph. 1. For a relocation other than a highway, the value shall be only that portion of relocation costs that the Government determines is necessary to provide a functionally equivalent facility, reduced by depreciatiod, as applicable, and by the salvage value of any removed item. 2. For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of California 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 such costs. D. The value of the improvements made to lands, easements, and rights-of-way to enable the proper disposal of dredged or excavated material shall be the costs of the improvements, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such 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 noo include any costs due to betterments, as determined by the Government. E. Any credit afforded or reimbursement provided under the terms of this Agreement for the value of relocations, or improvements required on lands, easements, and rights-of- way to enable the disposal of dredged or excavated material, performed within the Stage 12 12 boundaries is subject to satisfactory compliance with applicable Federal labor laws covering non-Federal construction, including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 274c)). Notwithstanding any other provision of this Agreement, credit or reimbursement may be withheld, in whole or in part, as a result of We State's failure to comply with its obligations under these laws. F. Where the Government, on behalf of the State pursuant to Article II.G.1. of this Agreement, acquires lands, easements, or rights-of--way, performs relocations, or constructs improvements required on lands, easements, or rights-of--way to enable the disposal of dredged or excavated material, the value to be included in fora[ costs of Stage 12 and the amount of credit to be afforded or the amount of reimbursement provided in accordance with this Agreement shall be the costs of such work performed or provided by the Govemment that are paid by the State in accordance with Article VI.D. of this Agreement. ]h addition, the value to be included in total costs of Stage 12 and the amount of such credit to be afforded or the amount of reimbursement provided in acrnrdance with this Agreement shall include the documented costs incurred by the State in accordance with the terms and conditions agreed upon in writing pursuant to Article II.G.1. of this Agreement subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, allowability of such costs. ARTICLE V -PROJECT COORDINATION TEAM A. To grovide for consistent and effective communication, the State 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 the period of construction. The Government's Project Manager and a counterpart named by the State shall co-chair the Project Coordination Team B. The Govemment's Project Manager and the State's counterpart shall keep the Project Coordination Team informed of the progress of constmction and of significant pending issues and actions, and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. C. Until the end of the period of construction, the Project Coordination Team shall generally oversee Stage 12, including matters related to: plans and specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and modifications; contract costs; the application of and compliance with ~40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)) for relocations and improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material; the investigations to identify the existehce and extent of hazardous substances in accordance 13 with Article XN.A. of this Agreement; historic preservation activities in accordance with Article XVII of this Agreement; the Government's cost projections; final inspection of Stage 12 or functional portions thereof; preparation of the proposed OMRB.R Manual; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, and rehabilitation of Stage 12 including issuance of permits; and other matters related to Stage 12. This oversight of Stage 12 shall be consistent with a project management plan developed by the Government after consultation with the State. D. The Project Coordination Team may make recommendations to the District Engineer en matters related to Stage 12 that the Project Coordination Team generatly oversees, including suggestions to avoid potential sources of'dispute. The Government in good faith shall consider the recoaunendations of the Project Coordination Team. The Government, having the legal authority and responsibility for construction of Stage 12, has the discretion to accept or reject, in whole or in part, the Project Coordination Team's recommendations. E. The State's costs of participadon in the Project Coordination Team shall be included in total costs of Stage 12 and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and a[lowability of such costs. The Government's costs of participation in the Project Coordination Team shall be included in total costs of Stage 12 and shared in accordance with the provisions of this Agreement. ARTICLE V I -METHOD OF PAYMENT A. Tn accordance with the provisions of this paragraph, the Government shall maintain curnnt records and provide to the State current projections of costs, financial obligations, contributions provided by the parties, and the value iacIuded in total costs of Stage 12 for the value of lands, easements, rights-of--way, redocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dredged or excavated material determined in accordance with Article N of this Agreement. 1. As of the effective date of this Agreement, total costs of Stage !2 are projected to be $14,500,000; the State's contribution of funds required by Article II.B.2. of this Agreement is projected to be $4,785,000; the State's proportionate share is 33 percent; the State's contribution of funds required by Article XVII.B.3. of this Agreement is projected to be $-0-; the value included in total costs of Stage 12 for the value of lands, easements, rights-of--way, relocations, and improvements required on lands, easements, and rights-of- way to enable the disposal of dredged or excavated material determined in accordance with Article N of this Agreement is projected to be $-0; and the Government's total financial obligations for the additional work to be incurred and the State's contribution of funds for such costs required by Article II.G. of this Agreement are projected to be $925,000. These amounts are estimates subject to adjustment by the Government, after consultation with the State, and are not to be constroed as the total financial responsibilities of the Government and the State. 2. By September 30, 2008 and by each quarterly anniversary thereof until the conclusion of the period of construction and resolution of all relevant claims and appeals and 14 ~~PY eminent domain proceedings, the Government shall provide the State with a report setting forth all contributions provided to date and the current projections of the following: total costs of Stage 12 the State's contribution of funds required by Article II.B.2. of this Agreement; the State's proportionate share; the State's total contribution of funds required by Article XVII.B.3. of this Agreement; the total contribution of funds required from the State for the upcoming fiscal year, the value included in total costs of Stage 12 for the value of lands, easements, rights-0f--way, relocations, and improvements required on lands, easements, and rights-of-way to enable the disposal of dtEdged or excavated material determined in accordance with Article IV of this Agreement; and the Government's total financial obligations for additional work incurred and the State's contribution of funds for such costs required by Article II.G. of this Agreement. B. The State shall provide the contributions of funds required by Article II.B.2. and Article XVII.B.3. of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 30 calendar days prior to the scheduled date for issuance of the solicitation for the first contract for Stage 12 or commencement of Stage 12 using the Government's own Porees, the Government shall notify the State in writing of such scheduled date and the funds the Government determines to be required from the State to meet: (a) the State's proportionate share of any faancial obligations for Stage 12 incurred prior to such scheduled date; (b) the projected State's proportionate share of financial obligations for Stage 12 to be incurred in the first fiscal year, and (c) the State's share of the grojected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.B.3. of this Agreement to be incurred in the first fiscal year. Not later than such scheduled date, the State shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, LOS ANGELES DISTRICT" to the District Engineer, or verifying to the satisfaction of the Government that the State has deposited such required funds in an escrow or other account acceptable to the Government, with interest accming to the State, or by presenting the Government with an irrevocable letter of credit acceptable to the Government for such required funds, or by providing an Electronic FSrnds Transfer of such required funds in accordance with procedures established by the Government 2. Thereafter, until construction of Stage 12 is complete, the Government shall notify the State in writing, no later than 60 calendaz days prior to the beginning of each fiscal year in which the Government projects that it will make financial obligations for Stage !2, or financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.B.3. of this Agreement, of the funds the Government determines to be required from the State to meet: (a) the projected State's proportionate share of frrianclal obligations for Stage 12 to be incurred in that fiscal year and (b) the State's share of the projected financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.B.3. of this Agreement to be incurred in that fiscal year. No later than 30 calendar days prior to the beginning of that fiscal year, the State shall make the full amount of such required funds for that focal year available to the Government through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. The Government shall draw from the funds provided by the State such sums as the Government deems necessary to cover: (a) the State's proportionate share of 15 financial obligations for Stage 12 incurred prior to the scheduled date for issuance of the solicitation for the fast contract for Stage 12 or commencement of Stage 12 using the Government's own forces; (b) the State's proportionate share of financial obligations for Stage 12 as financial obligations for Stage 12 are incurred; and (c) the State's share of financial obligations for data recovery activities associated with historic preservation pursuant to Article XVII.B.3. of this Agreement as those financial obligations are incurred. If at any time the Government determines that additional funds will be needed from the State to cover the State's share of such financial obligations in the current frscaf year, the Govemment shall notify the State in writing of thi: additional funds required and provide an explanation of why additional funds are required. Within 30 calendar days from receipt of such notice, the State shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon conclusion of the period of construction and resolution of all relevant claims and appeals and eminent domain proceedings, the Government shall conduct a final accounting and famish the State with written notice of the results of such fmal accounting. If outstanding relevant claims and appeals or eminent domain proceedings prevent a final accounting from being conducted in a timely manner, the Goverment shall conduct an interim accounting and furnish the State with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals and eminent domain proceedings are resolved, the Government shall amend the interim accounting to complete the final accounting and famish the State with written notice of the results of such final accounting. The interim or fmal accounting, as applicable, shall determine total costs of Stage 12 and the costs of any data recovery activities associated with historic preservation. In addition, for each set of costs, the interim or final accounting, as applicable, shall determine each party's required share thereof, and each party's total contributions thereto as of the date of such accounting. 1. Should the interim or final accounting, as applicable, show that the State's total required shares of total costs of Stage 12 and the costs of any data recovery activities associated with historic preservation exceed the State's total contributions provided thereto, the State, no later than 90 calendar days after receipt of written notice from the Government, `shag make a payment to the Government is an amount equal to the difference by delivering a check payable to "FAO, USAED, LOS ANGELES DISTRICT" to the District Engineer or by providing an Electronic Punds Transfer in accordance with procedures established by the Government. 2. Should the interim or fmat accounting, as applicable, show that the total contributions provided by the State for total costs of Stage /2 and the costs of any data recovery activities associated with historic preservation exceed the State's total required shares thereof, the Government, subject to the availability of funds, shall refund or reimburse the excess amount to the State within 90 calendar days of the date of completion of such accounting. In the event the State is due a refund or reimbursement and funds are not available to refund or reimburse the excess amount to the State, the Government shall seek such appropriations as are necessary to make the refund or reimbursement. 16 ~~ D. The State shall provide the contribution of funds requited by Article II.G. o~ this ' Agreement for additional work in accordance with the provisions of this paragraph. 1. Not less than 60 calendar days prior to the scheduled date for the fast financial obligation for additional work, the Government shall notify the State in writing of such scheduled date and of the full amount of funds the Government determines to be required from the State to cover the costs of the additional work. No later than 30 calendar days prior to the Government incurring any financial obligation for additional work, the State shall provide the Government with the full amount of the.funds required to cover the costs of such additional work through any of the payment mechanisms specified in paragraph B.1. of this Article. 2. The Government shall draw from the funds provided by the State such sums as the Government deems necessazy to cover the Government's financial obligations for such additional work as they are incurred. If at any time the Government de[ertnines that the State must provide additions[ funds to pay for such additional work, the Government shall notify the State in writing of the additional funds required and provide an explanation of why additional funds are required. Within 30 calendar days from receipt of such notice, the State shall provide the Government witit the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. 3. At the time the Government conducts the interim or final accounting, as applicable, the Government shall conduct an accounting of the Government's financial obligations incurred for additional work and famish the State with written notice of the results of such accounting. If outstanding relevant claims and appeals or eminent domain proceedings prevent a final accounting of such financial obligations for additional work from being conducted in a timely manner, the Government shall conduct an interim accounting of such financial obligations for additional work and famish the State with written notice of the results of such interim accounting. Once all outstanding relevant claims and appeals and eminent domain proceedings are resolved, the Government shall amend the interim accounting of such financial obligations for additional work to wmplete the final accounting of such financial obligations for additional work and furnish the State with written notice of the results of such final accounting. Such interim or final accounting, as applicable, shall determine the Government's total financial obligations for additional work and the State's contribution of funds provided thereto as of the date of such accounting. a. Should the interim or final accounting, as applicable, show that the Government's total financial obligations for additional work exceed the total contribution of funds provided by the State for such additional work, the State, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to "FAO, USAED, LOS ANGELES DISTRICT" to the District Engineer or by providing an Electronic Funds Transfer in accordance with procedures established by the Government. b. Should the interim or final accounting, as applicabler show that the total contribution of funds provided by the State for additional work exceeds the Government's total financial obligations for such additional work, the Government, subject to the availability of funds, shall refund the excess amount to the State Within 90 calendar I7 ~. days of the date of completion of such accounting. In the event the State is due a re and funds are not available to refund the excess amount to the State, the Govemment 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, thaz 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. Each party shall pay an equal share 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, MAIlVTENANt:E, REPAIR, AND REHABIIITATION, (OMRBrR) A. Upon receipt of the notification from the District Engineer in accordance with Article II.C. of this Agreement and for so long as the Authorized Project remains authorized, the State, pursuant to Article II.D. of this Agreement, shall operate, maintain, repair, and rehabilitate Stage 12, or functional portion of Stage 12, as applicable. Operation, maintenance, repair, and rehabilitation shall be conducted in a manner compatible with the Authorized 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 Govemment in the imterim or final OMR&R Manual. B. The State hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the State now or hereafter owns or controls for access to Stage 12 for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, or rehabilitating Stage 12. If an inspection shows that the State for any reason is failing to perform its obligations under this Agreement, the Govemment shall send a written notice describing the non-performance to the State. If, after 30 calendar days from receipt of such written notice by the Govemment, the State continues to fail to perform, then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property that the State now or hereafter owns or controls for the purpose of completing, operating, maintaining, repairing, or rehabilitating Stage 12. No completion, operation, maintenance, repair, or rehabilitation by the Govemment shall relieve the State of responsibility to meet the State's 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-HOLD AND SAVE 18 Subject to the provisions of Article XX of this Agreement, the State shall hold and save the Government free from all damages arising from construction, operation, maintenance, repair, and rehabilitation of Stage I2 and any betterments, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE X -MAINTENANCE OF RECORDS AND AUD1T A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the State shall develop procedures for keeping books, records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate, the standards for f nancial 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 State shall maintain such books, records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books, records, documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations, the Government and the State shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26, the State is responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507), as implemented by Office of Management and Budget (OMB} Circalaz No. A-133 and Department of Defense Directive 7600.10. Upon request of the State and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the State and independent auditors any information necessary ro enable an audit of the State's 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-I33, and such costs as are allocated to Stage 12 shall be included in total costs of Stoge 12 and 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 State is required to conduct under the Single Audit Act Amendments of 1996. Any such Government audits shay 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 costs of Stage 12 and 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 State and the Government shall 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; Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in 19 Programs and Activities Assisted or Conducted by the Departrnent of the Aiiriy"d~~ applicable Federal labor standards requirements including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (revising, codifying and enacting without substantive change the provisions of the Davis-Bacon Act (formerly 40 U.S.C. 276a et seq.), the Contract Wark Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.), and the Copeland Anti-Kickback Act (formerly 40 U.S.C. 276c)). ARTICLE XII -RELATIONSHIP OF PAR'T'IES A. Jn the exercise of their respective rights and obligations under this Agreement, the Government and the State 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 Agreennt, neither parry shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights the other party may have to seek relief or redress against that contractor either pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE X1II -TERMINATION OR SUSPENSION A. if at any time the State faits to fulfill its obligations under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend furore performance under this Agreement unless he determines that continuation of work on Stage 12 is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Authorized Project. B. In the event the Government projects that the amount of Federal funds the Government will make available to the Authorized Project for Stage 12 through the then- current fiscal year, or the amount of Federal funds the Government will make available for Stage 12 through the upcoming fiscal year, is not sufficient to meet the Federal share of total costs of Stage 12 and the Federal share of costs for data recovery activities in accordance with Article XVII.B.2. and Article XV1IB.3, of this Agreement that the Government projects to be incurred through the then-current or upcoming fscal year, as agplicable, the Government shall notify the State in writing of such insufficiency of funds and of the date the Government projects that the Federat funds that will have been made available to the Authorized Project for Stage 12 will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Authorized Project for Stage 12, future performance under this Agreement shall be suspended. Such suspension shall remain in effect until such time that the Government notifies the State in writing that sufficient Federal funds are available to meet the Federal share of total costs of Stage 12 and the Federal share of costs for data recovery activities in accordance with Article XV1LB.2. and Article XVII.B.3. of this Agreement the Government projects to be incurred through the then~urrent or upcoming fiscal year, or the Government or the State elects to terminate this Agreement. 20 coPv C. In the event that the Government and the State determine to suspend future performance under this Agreement in accordance with Article XIV.C. of this Agreement, such suspension shall remain in effect until the Government and the State agree to proceed or to terminate this Agreement. In the event that the Government suspends future performance under this Agreement in accordance with Article X1V.C. of this Agreement due to failure to reach agreement with the State on whether to proceed or to terminate this Agreement, or the failure of the State to provide funds to pay for cleanup and response costs or to otherwise discharge the State's responsibilities under Article XIV.C. of this Agreement, such suspension shall remain in effect until: 1) the Govermnent and State reach agreement on how to proceed or to terminate this Agreement; 2) the State provides funds necessary to pay for cleanup and response costs and otherwise discharges its responsibilities under Article XIV.C. of this Agreement; 3) the Government continues work on Stage 12; or 4) the Government terminates this Agreement in accordance with the provisions of Article XIV.C. of this Agreement. D. In the event that this Agreement is terminated pursuant to this Article or Article X1V.C. of this Agreement, both parties shall conclude their activities relating to Stage 12 and conduct an accounting in accordance with Article VI.C. of this Agreement. To provide for this eventuality, the Government may reserve a percentage of total Federal funds made available for Stage 12 and an equal percentage of the total funds contributed by the State in accordance with Article II.$.2. and Article XVII,B.3. of this Agreement as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. E. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XIV.C. of this Agreement shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment owed by the State shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3 month period if the period of delinquency exceeds 3 months. ARTICLE XIV -HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the State shall perform, or ensure performance of, any investigations for hazardous substances that the Government or the State determines to be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter "CERCLA'~ (42 U.S.C. Sections 96019675), 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 construction, operation, and maintenance of Stage 12. However, for lands, easements, and rights-of--way that the Govemmant detemtines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the State with prior specific written direction, in which case the State shall perform such investigations in accordance with such written du•eMion. 21 1. All actual costs incurred by the State for suchanvestigations for hazardous substances shall be included in total costs of Stage 12 and shazed in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. 2. All actual costs incurred by the Government for such investigations for hazazdous substances shall be included in total costs of Stage 12 and shared in accordance with the provisions of this Agreement. B. In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of--way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of Stage 12, the State and the Government, in addition to providing any other notice required by applicable law, shall provide prompt written notice to each other, and the State shall not proceed with the acquisition of the real property interests until the parties agree that the State should proceed. C. The Government and the State shall determine whether to initiate construction of Stage 12, or, if already in construction, whether to continue with construction of Stage 12, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA arc found to exist in, on, or under any lands, easements, or rights-of--way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of Stage 12. Should the Government and the State determine to initiate or continue with construction of Stage l2 after considering any liability that may arise under CERCLA, the State shall be responsible, as between the Government and the State, for the costs of cleanup and response, including the costs of any studies and itvestigations necessary to determine an appropriate response to the contamination. Such costs shall not be considered a part of total costs of Stage 12. Tn the event the State does not reach agreement with the Government on whether to proceed or to ternnate this Agreement under this paragraph, or fails to provide any funds necessary to pay for cleanup and response costs or to otherwise discharge the State's responsibilities under this paragraph upon direction by the Government, the Government, in its sole discretion, may either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or wntinue work on Stage 12. D. The State and the Government shall consult with each other in accordance with Article V of this Agreement in an effort to ensure that responsible parries bear any necessary cleanup and response costs as defined in CERCI.A. Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCI.A. E. As between the Government and the State, the State shall be considered the operator of Stage I2 and the Authorized Project for purposes of CERCLA liability. To the maximum extent practicable, the State shall operate, maintain, repair, and rehabilitate Stage 12 in a manner that will not cause liability to arise under CERCLA. 22 ~~-~ ARTICLE XV -NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first class, registered, or certified mail, as follows: If to the State: California Department of Boating and Waterways 2000 Evergreen Street Suite 100 Sacramento, California 95815 If to the Government: Los Angeles District P. O. Box 532711 Los Angeles, California 90053-2325 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed or transmitted. ARTICLE XVI -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 XVII -HISTORIC PRESERVATION A. The Government, as it determines necessary for Stage 12, shall perform any identification, survey, or evaluation of historic properties. Any costs incurred by the Government for such work shall be included in total costs of Stage 12 and shared in accordance with the provisions of this Agreement. B. The Government, as it determines necessary for Stage 12, shall perform or ensure the performance of any mitigation activities or actions for historic properties or that are otherwise associated with historic preservation including data recovery activities. 23 .~~~ _...~ 1. Any costs incurred by the Government for such mitigation activities, except for data recovery activities associated with historic preservation, shall be included in total costs of Stage 12 and shazed in accordance with the provisions of this Agreement. 2. As specified in Section 7(a) of Public Law 86-523, as amended by Public Law 93-291 (16 U.S.C. 469c(a)), the costs of data recovery activities associated with historic preservation shall be home entirely by the Government and shall not be included in total costs of Stage 12, up to the statutory limit of one percent of the total amount authorized to be appropriated m the Government for Stage 12. 3. The Government shall not incur costs for data recovery activities associated with historic preservation that exceed the statutory one percent limit specified in paragraph B.2. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit and the Secretary of the Interior has concurred in the waiver in accordance with Section 208(3) of Public Law 96-515, as amended (16 U.S.C. 469c-2(3)). Any costs of data recovery activities associated with historic preservation that exceed the one percent limit shall not be included in total costs of Stage 12 but shall be shared between the State and the Government consistent with the cost sharing in accordance with the provisions of this Agreement. Further, any costs of archeological data recovery activities on lands not subject to Federal cost sharing (undeveloped private lands and privately owned shores that do not provide public benefits) that exceed the one percent limit shall not be included in total costs of Stage 12 but shall be paid by the State. C. If, during its performance of relocations or construction of improvements required on lands, easements, and rights-of--way to enable the disposal of dredged or excavated material in accordance with Article III of this Agreement, the State discovers historic properties or other cultural resources that have not been evacuated by the GovP~+n+P~t pursuant to this Article, the State shall provide prompt written notice to the Government of such discovery. The State shall not proceed with performance of the relocation or wnstructioa of the improvement that is related to such discovery until the Government provides written notice to the State that it should proceed with such work. ARTICLE XVIII -THIRD PARTY RIGHTS, BENEFITS, OR LIABIIITIES Nothing in this Agreement is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not party to this Agreement ARTICLE XDC -NON-LIABII.TTY OF OFFICERS AND EMPLOYEES No officer, agent, consultant, or employee of the State, nor any officer, agent, consultant, or employee of the Government, may be charged personally, or held liable, under the terms or provisions of this Agreement because of any breach, attempted breach, or alleged breach thereof, except as provided in Section 912(b) of the Water Resources Development Act of 1986, Public Law 99-662, as amended (42 U.S.C. 1962d-Sb note), or other applicable law. 24 ~~~ ARTICLE XX -OBLIGATIONS OF FUTURE APPROPRIATIONS A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of future appropriations by the Legislature of the State of California B. The State intends to fulfill its obligations under this Agreement. The State shall include in its budget request or otherwise propose appropriations of funds in amounts sufficient to.fulfill these obligations for that year, and shall use all reasonable and lawful means to secure those appropriations. The State reasonably believes that funds in amounts sufficieat to fulfill these obligatigns lawfully can and will be appropriated and made available for this purpose. 1n the event funds are not appropriated in amounts sufficient to fulfill these obligations, the State shall use its best efforts to satisfy any requirements for payments or contributions of funds under this Agreement from any other source of funds legally available for this purpose. Further, if the State is unable to fulfill these obligations, the Government may exercise any legal rights it has to protect the Government's interests related to this Agreement. IN WTfNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the Assistant Secretary of the Army (Civil Works). DEPARTMENT OF THE ARMY BY:. Colonel, U5 A y District Co Los Angeles District U.S. Army Carps of fingineers DATE: t-/ ~ ~Fl ~~ STATE OF CALIFORNIA Department of Boating and Waterways ~~ BY• Rayn ' Tsuneyosl Director DATE: ~ jl r6 (b~ 25 ~~ CERTIFICATE OF AUTHORITY I, Penny L.. Schulz, do hereby certify that I am the principal legal officer of the Department of Boating_and Waterways of the State of California, and that the California Department of Boating and Waterways 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 State of California Department of Boating and Waterways in connection with the Orange County Beach Erosion Control Project from Saa Gabriel River to Newport Bay Stage 12 Periodic Nourishment Project and to pay damages, if necessary in the event of the failure to perform in accordance with the terms of this Agreement, as required by Section 221 of Flood Control Act of 1970, Public law 91-611, as amended (42 U.S.C. Section 1962d-Sb), and that the person who has executed this Agreement on behalf of the State of California Department of Boating and Waterways has acted within his statutory authority. c ~IN~ WTTNESS WHEREOF, I have made and executed this certification this ~ day of Yb`"~ 20~? .~ L. S Chief Counsel Departrnent of Boating and Waterways State of California 2fi ~~ -,,~.s o 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, wntinuation, 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 made by the State for the Project 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 31 U.S.C. 1352. Aay 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. ---~""` Raynor suneyoshi Director State of California, Departrnent of Boating and Waterways DATE: q~1~~~KT 2T W912PL-OS-B-0005 San Gabriel River to Newport Bay, Beach Nourishment, Stage 12 and Maintenance Dredging of Anaheim Bay Orange County, California 6 Amendments Bid Opening Date: 9/22108 .Manion Construction Comparry - -- - ^ 5209 E. Marginal Way S., Seattle, WA 98134 (206) 752-0850 ITEM ESTIMATED UNIT OF UNIT TOTAL NO. DESCRIPTION QUANTITY MEASURE PRICE AMOUNT 1 Mobdrzahon and Demobdrzahon, Naval 1 Job Lump Sum $449.000 00 Weapons Station Seal Beach 2 Dredging, Naval Weapons Station Seal Beach 100,000 Cubic Yards 550 $550,000 00 Total Base Bid $999,000.00 OPTION ITEMS OPTION 3A Mobrlrzahon and Demobrirzabon, Surlside 1 Job Lump Sum $2.100.000 00 3B Dredging, Placement at Surfsrde 1,000,000 Cubic Yards 7 00 $7,000,000 00 Total of Options 3A and 3B $9,100,000.00 OPTION 4 Dredging, Placement at Surfside 250,000 Cubic Yards 6 18 1 545 000.00 Total of Option 4 1 545 000.00 OPTION SA Set-up at Seal Beach 1 Job Lump Sum $250.000 00 58 Dredging, Placement at Seal Beach 55,000 Cubic Yards 10 0 $550,000 00 Total of Options 5A and SB $800,000.00 TOTAL ESTIMATED AMOUNT, Base Bid Plus All Option kerns $12,444,000.00