HomeMy WebLinkAboutAGMT - California Dept. of Boating & Waterways (Beach Erosion) %STATE OF CALIFORNIA
STAN DARD AGREEMENT -
STD 213 (Rev 06/03) 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 3 pages
Exhibit B — USAGE Agreement - Stage 12 Periodic Nourishment of the Orange County Beach 27 pages
Erosion Control Project From San Gabriel River to Newport Bay, Orange County,
California
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CONTRACTOR California Department of General
Services Use Only
CONTRACTOR'S NAME (if other than an individual, state whether a corporation, partnership, etc.)
City of Seal Beach
BY (Authorized Signature) DATE SIGNED(Do not type)
.e5 c APPROVED
PRINTED NAME AND TITLE F PERSON SIGNING
David Carmany, City Manager
ADDRESS JAN 2 9 2018
211 8 Street, Seal Beach, California 90740
DEPT OF GENERAL SERVICES
J
STATE OF CALIFORNIA
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AGENCY NAME ,
Department of Boating and Waterways
BY (Auth - . Signature) DATE SIGNED(Do not type)
C r /�� O
PRINTED NAME Ar' Al TITLE OF PERSO SIGNIN
Raynor Tsuneyoshi, Director
ADDRESS
2000 Evergreen Street, Suite 100, Sacramento, California 95815 -3888
Exhibit A
BEACH EROSION CONTROL PROJECT
PARTICIPATION AGREEMENT
ARTICLE 1 — RECITALS
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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 Government is authorized to provide "additional work ", in conjunction with their work
for Stage 12 as set forth in Article II G1&3 of the Project Partnership Agreement between
the Department of the Army and the State of California Department of Boating and
Waterways.
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 City of Seal Beach is hereafter referred to as the "City" and the beach nourishment
effort to be performed by the Government under Options 5A and 5B for the City shall be
herein referred to as the "Project'.
The Department and the City agree, subject to the availability of funds, to the general terms as
follows:
ARTICLE 2 — UNDERTAKING BY THE DEPARTMENT
A. Department has contracted with the Government 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 Five Thousand
REVISION 09/22/2008 1 08300801A (3ks)
' Exhibit A
Dollars ($925,000) as the City's 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 TWENTY (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 lands,
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 contract in accordance with
Government Code Section 10532. The examination and audit shall be confined to those matters
REVISION 09/22/2008 2 08300801A [3ks]
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 by the City and approved by the California Department of
General Services.
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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,
rehabilitation, 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 mail, facsimile (FAX) telecopy, e-mail, or
telegraph, then upon the date of confirmed receipt to the following representatives:
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.00v
For the City:
City of Seal Beach
Attention: David Spitz
211 8 Street
Seal Beach, CA 90740
Telephone Number: (562) 431 -2527, ext 1331
FAX Number: (562)
dspitz@ci.seal- beach.ca.us
REVISION 09/22/2008 3 08300801A (3ksJ
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PROJECT PARTNERSHIP AGREEMENT ;�;� i
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 RIVER TO NEWPORT BAY
ORANGE COUNTY, CALIFORNIA
• THIS AGREEMENT is entered into this 17 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.
WITNESSETH, 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 Rivers and Harbors Act of 1954 (Public Law 83 -780) under the title "Anaheim Bay Harbor,
California ", as amended by Section 101 of the Rivers and Harbors Act of 1962 (Public Law 87-
874) under the title "Orange County, California ", and where the plan of improvements are
• described in House Document 349, Eighty -third Congress (1954), and House Document 602,
Eighty - Seventh Congress, respectively (hereinafter the "Authorized Project" as defined in
Article I.A. of this Agreement);
WHEREAS, 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 the project for beach erosion, Orange County, California authorized by Section 101 of the
Rivers and Harbors Act of 1962 as continuing construction;
WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91 -611, as
amended (42 U.S.C. 1962d -5b), and Section 103(j) of the Water Resources Development Act of
1986, Public Law 99 -662, as amended (33 U.S.C. 2213(j)), provide, inter alia, that the Secretary
of the Army shall not commence construction of any water resources project, or separable
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element thereof, until each non - Federal interest has entered into a written a a -: t o f`• ' fflrnish'
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 September 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 Surfside- Sunset Beach, and initial construction of rock
groins and protective beach at west Newport Beach, within the Authorized Project reach, in
Orange County, California (hereinafter the "Stages 1— 11 ");
WHEREAS, the initial construction of the shore protection measures in Seal Beach were
completed in 1958, and the initial construction of the protective and feeder beach at Surfside-
Sunset was completed in 1964, and the initial construction of the groin field and protective
beach at west Newport Beach was completed in 1973;
WHEREAS, 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 performance of all
relocations, and constructed improvements required on lands, easements, and rights -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 1 through Stage 11, except for lands owned 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 12" as defined in Article I.B. of this Agreement);
WHEREAS, the Government 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 with the terms of this Agreement; and
WHEREAS, the Government and the State, in connection with this Agreement, desire
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 herein, which creates an environment where trust and teamwork prevent disputes,
foster a cooperative bond between the Government and the State, and facilitate the successful
implementation of Stage 12.
NOW, THEREFORE, the Government and the State agree as follows:
ARTICLE I — DEFINITIONS
A. The term "Authorized Project" 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, Eighty -
Third Congress, dated 1954; a protective beach at Surfside -Sunset completed in 1964 and a
groin field and beach fill at west Newport Beach as generally described in House Document
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602, Eighty Seventh Congress, dated October 2, 1962, the report of the Chief • f_En ineers date•t
August 8, 1962.
B. The term "Stage 12" 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, California and
placement of approximately 100,000 cubic yards of sand at Newport Beach, California as
generally described the report of the Chief of Engineers 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 accordance with the terms of this Agreement directly related to
Stage 12. Subject to the provisions of this Agreement, the term shall include, but is not
necessarily limited to: the Government's engineering and design costs during construction; 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 construction 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
Government'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 12; any costs of initial construction, periodic nourishment, or
maintenance of the Authorized Project incurred under any other agreement; any costs of
additional work or betterments under Article 11.0.2. and Article II.G.3. of this Agreement; any
costs of dispute resolution under Article VII of this Agreement; the Government'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 construction" shall mean the time from the date the Government
issues the solicitation for the first 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 XIII or Article XIV.C. of this
Agreement, whichever is earlier.
F. 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 construction of improvements required on lands,
easements, and rights -of -way to enable the disposal of dredged or excavated material.
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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 financial obligations for
Stage 12, as projected by the Govemment.
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.
I. The term `functional 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 determines 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 term `fiscal year" shall mean one year beginning on October 1 and ending on
September 30.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE STATE
A. The Govemment, 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 construct 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 construction of Stage 12 using the Government's own forces until the State has
confirmed in writing its willingness to proceed with Stage 12.
2. The Government shall afford the State the opportunity to review and
comment on the solicitations for all contracts, including relevant plans and specifications, prior
to the Government's issuance of such solicitations. To the extent possible, the Government
shall afford the State the opportunity to review and comment on all proposed contract
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modifications, including change orders. In any instance where providing the State with
notification of a contract modification is not possible prior to execution of the contract
modification, the Government 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 Government 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 on 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 furnish a copy thereof to the State.
4. As of the effective date of this Agreement, $9,715,000.00 of Federal funds
is currently projected to be available for 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, and rights -of -way, including those required for relocations, the borrowing of
material, and the disposal of dredged or excavated material, shall perform or ensure
performance of all relocations, and shall construct 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 accordance with Article VI.B. of this
Agreement in the amount necessary to meet the State's required 33 percent share of total costs
of Stage 12 if the Government projects at any time that the collective value of the following
contributions will be less than such required share: (a) the value of the State's contributions
under paragraph B.1. of this Article as determined in accordance with Article IV of this
Agreement; and (b) the value of the State's contributions under Article V, Article X, and Article
XIV.A. of this 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 costs of Stage 12 if the Government determines 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 B.2. of this Article; (b) the value of the State's contributions
under paragraph B.1. of this Article as determined in accordance with Article IV of this
Agreement; and (c) the value of the State's contributions under Article V, Article X, and Article
XIV.A. of this Agreement. After such a determination, the Government, in its sole discretion,
may acquire any remaining lands, easements, and rights -of -way required for Stage 12, perform
any remaining relocations necessary for Stage 12, or constrict any remaining improvements
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required on lands, easements, and rights -of -way to enable the disposal of dredg o excavated
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 rights -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 XIV.C. of this Agreement.
C. When the District Engineer determines that Stage 12, or a functional portion of
Stage 12, is complete, the District Engineer shall so notify the State in writing and furnish the
State with copies of all of the Government's Written Notices of Acceptance of Completed
Work for all contracts for Stage 12 that have not been provided previously and a final
Operation, Maintenance, Repair, and Rehabilitation Manual (hereinafter the "OMR &R
Manual ") or, if the final OMR &R Manual is not available, an interim OMR &R 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 12 is complete, the
Government shall furnish the State with all final as -built drawings 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 furnishing such documents.
D. Upon notification from the District Engineer in accordance with paragraph C. of
this Article, the State shall operate, maintain, repair, and rehabilitate Stage 12, or the
functional portion of Stage 12 as the case may be, in accordance with Article VIII of this
Agreement.
E. Upon conclusion of the period of construction, the Government shall conduct an
accounting, in accordance with Article VI.C. of this Agreement, 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 Agreement unless the Federal agency providing the Federal portion of such
funds verifies in writing that expenditure of such funds for such purpose is expressly 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 perform or provide
the requested additional work or 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.
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1. Acquisition of lands, easements, and rights -of -way; performance of
relocations; or construction of improvements required on lands, easements, and rights -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
construction 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 XIV.C. of this Agreement.
2. Inclusion of betterments in the construction of Stage 12. In the event the
Government elects to include any such betterments, the Government shall allocate the costs
of the Stage 12 features that include betterments 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, a non - 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 programs.
J. The State shall publicize floodplain 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 Authorized Project.
K. 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, and rights -of -way or
the addition of facilities which might reduce the level of protection the Authorized Project
affords, hinder operation and maintenance 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 State shall ensure that necessary access roads, parking areas, and other
associated public use facilities, will be open and available to all on equal terms.
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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 manner 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 construction, the State shall acquire all lands, easements and
rights -of -way set forth in such descriptions. Furthermore, prior to issuance of the solicitation
for each Government contract for Stage 12 or prior to the Government incurring any financial
obligations for Stage 12 using the Government's own forces, the State shall provide the
Government 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 Project remains authorized, the State shall ensure that lands, easements, and
rights -of -way that the Government determines to be required for the Authorized Project and
that were provided by the State are retained in public ownership for uses compatible with the
authorized purposes of the Authorized Project.
B. The Government, 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- watering pumps and pipes. The Government in a timely manner shall provide the
State with general written descriptions of such improvements 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 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 to the Government incurring any financial obligations for Stage 12 using the
Government's own forces, the State shall prepare plans and specifications for all
improvements the Government determines to be required for the proper disposal of dredged
or excavated material under that contract, submit such plans and specifications to the
Government for approval, and provide such improvements in accordance with the approved
plans and specifications.
C. The Government, after consultation with the State, shall determine the relocations
• necessary for the construction, operation, and maintenance of Stage 12, 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
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enable the State to fulfill its obligations under this paragraph, and shall provide the ?: ` *At k
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. Furthermore, prior to issuance of the solicitation for each Government
contact for Stage 12 or prior to the Government incurring any financial obligations for 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 contract.
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 contribution
provided pursuant to paragraphs A., B., or C. of this Article. Upon receipt of such documents
the Government, in accordance with Article IV of this Agreement and in a timely manner,
shall determine the value of such contributions for the purpose of including such value in
total costs of Stage 12 and for determining the amount of credit to be afforded or
reimbursement to be provided in accordance with the provisions of this Agreement.
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- 4655), 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 connection with said Act.
F. The Government, after consultation with the State, has determined that for Stages 1
- 11 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
for 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 all 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 Government,
after consultation with the State, does determine that 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, 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 -WAY,
RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS
A. The Govemment shall include in total 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
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the relocations that the State must perform or for which it must ensure performance pursuant
to Article III.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 that the
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 reimbursement 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
project. In addition, no amount shall be included in total costs 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 -of -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.
B. For the purposes of determining the value to be included in total costs of Stage 12
and the amount of credit to be 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 for 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 the State after the effective date of this Agreement shall be the fair market value
•
of such real property interests at the time the interests are acquired.
2. General Valuation Procedures. Except as provided in paragraph B.3. or
B.5. 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 specified 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 the Government's appraisal, the Government, after consultation with
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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 to 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 determined
pursuant to paragraph B.2.a. of this Article.
3. Eminent Domain Valuation Procedure. For lands, easements, or rights -of-
way acquired by eminent domain proceedings instituted after the effective date of this
Agreement, the State shall, prior to instituting such proceedings, submit to the Government
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 Government in writing.
a. If the Government previously has approved the appraisal in writing,
or if the Government provides written approval of, or takes no action on, the appraisal within
such 60 -day period, the 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. If the Government provides written disapproval of the appraisal,
including the reasons for disapproval, within such 60 -day period, the Government and the
State shall consult in good faith to promptly resolve the issues or areas of disagreement that
are identified in the Government written disapproval. If, after such good faith consultation,
the Government 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 Government approves in writing.
4. Incidental Costs. For lands, easements, or rights - of-way acquired by the
State within a five -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,
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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 III.E. 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
accordance 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 depreciation, 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 not 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
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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. 276c)). Notwithstanding any other provision of this Agreement, credit
or reimbursement may be withheld, in whole or in part, as a result of the State's failure to
comply with its obligations under these laws.
F. Where the Government, on behalf of the State pursuant to Article I1.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 total 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 Government
that are paid by the State in accordance with Article VI.D. of this Agreement. In 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 accordance 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 Il.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 provide 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 Government's Project Manager and the State's counterpart shall keep the
Project Coordination Team informed of the progress of construction 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 existence and extent of hazardous substances in accordance
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with Article XIV.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 OMR &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 on matters related to Stage 12 that the Project Coordination Team generally
oversees, including suggestions to avoid potential sources of dispute. The Government in
good faith shall consider the recommendations of the Project Coordination Team. The
Government, having the legal authority and responsibility for 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 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, subject to an audit in accordance with Article X.C. of this Agreement to
determine reasonableness, allocability, and allowability 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 VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Government shall
maintain current records and provide to the State current projections of costs, financial
obligations, contributions provided by the parties, and 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 1V of this Agreement.
, 1. As of the effective date of this Agreement, total costs of Stage 12 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 IV 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 construed 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
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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 -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 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 forces, 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 financial obligations for Stage 12 incurred prior to such
scheduled date; (b) the projected State's proportionate share offinancial obligations for
Stage 12 to be incurred in the first fiscal year; and (c) 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 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 accruing 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 Funds 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 calendar days prior to the beginning of each
fiscal year in which the Government projects that it will make financial obligations for Stage
12, 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 offinancial
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 fiscal 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
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financial obligations for Stage 12 incurred 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 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 State •
to cover the State's share of such financial obligations in the current fiscal year, 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 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 furnish the State with written notice of the results of such final accounting. If
outstanding relevant claims and appeals or eminent domain proceedings prevent a final
accounting from being conducted in a timely manner, the Government 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 furnish the State with written notice of the results of such final
accounting. The interim or final 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,
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.
2. Should the interim or final accounting, as applicable, show that the total
contributions provided by the State for total costs of Stage 12 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 required by Article II.G. o1 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 first
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 necessary to cover the Government's financial obligations
for such additional work as they are incurred. If at any time the Government determines that
the State must provide additional 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 with 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 furnish 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 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 of such financial obligations for additional work to complete 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 applicable,. 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
17
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days of the date of completion of such accounting. In the event the State is due - a refund and
funds are not available to refund the excess amount to the State, the Government shall seek
such appropriations as are necessary to make the refund.
ARTICLE VII - DISPUTE RESOLUTION
As a condition precedent to a party bringing any suit for breach of this Agreement, that
party must first notify the other party in writing of the nature of the purported breach and seek
in good faith to resolve the dispute through negotiation. If the parties cannot resolve the
dispute through negotiation, they may agree to a mutually acceptable method of non - binding
alternative dispute resolution with a qualified third party acceptable to both parties. 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, MAINTENANCE, REPAIR, AND REHABILITATION,
(OMR &R)
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 Government in the interim 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 Government 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 Government, 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
Government 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
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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 12 and any betterments, except for damages due to the
fault or negligence of the Government or its contractors.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 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 financial
management systems set forth in the Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The
Government and the 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) Circular 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 to 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 -133, and such costs as are allocated to Stage 12 shall be included in
total costs of Stage 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 shall be conducted in accordance with
Government Auditing Standards and the cost principles in OMB Circular No. A -87 and other
applicable cost principles and regulations. The costs.of Government audits performed in
accordance with this paragraph shall be included in total 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
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rrwy Programs and Activities Assisted or Conducted by the Department of the Army ";'nd all
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
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)).
ARTICLE XII - RELATIONSHIP OF PARTIES
A. In 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 Agreement, neither party
shall provide, without the consent of the other party, any contractor with a release that waives or
purports to waive any rights 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 XIII - TERMINATION OR SUSPENSION
A. If at any time the State fails to fulfill its obligations under this Agreement, the
Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future
performance under this Agreement unless he determines that continuation of work on 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 XVII.B.3. of this Agreement that the Government projects to
be incurred through the then - current or upcoming fiscal year, as applicable, the Government
shall notify the State in writing of such insufficiency of funds and of the date the Government
projects that the Federal 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 XVII.B.2. and Article XVII.B.3. of this Agreement the
Government projects to be incurred through the then - current or upcoming fiscal year, or the
Government or the State elects to terminate this Agreement.
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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 XIV.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 Government 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
XIV.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.B.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 9601 9675), 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 Government determines 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 direction.
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C . . III 1.
1. All actual costs incurred by the State for such investigations for hazardous
substances 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 allowability of such costs.
2. All actual costs incurred by the Government for such investigations for
hazardous 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 are found to exist in, on, or under any lands, easements, or rights -of -way that the
Government determines, pursuant to Article III of this Agreement, to be required for the
construction, operation, and maintenance of Stage 12. Should the Government and the State
determine to initiate or continue with construction of Stage 12 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
investigations necessary to determine an appropriate response to the contamination. Such
costs shall not be considered a part of total costs of Stage 12. In the event the State does not
reach agreement with the Government on whether to proceed or to terminate 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 continue 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 parties bear any
necessary cleanup and response costs as defined in CERCLA. Any decision made pursuant
to paragraph C. of this Article shall not relieve any third party from any liability that may
arise under CERCLA.
E. As between the Government and the State, the State shall be considered the
operator of Stage 12 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.
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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.
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I. 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 shared 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 borne 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 to 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 8.2.
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 evaluated by the Government 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 construction 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 LIABILITIES
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 XIX - NON - LIABILITY 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 -5b note), or
other applicable law.
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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
sufficient to fulfill these obligations lawfully can and will be appropriated and made
available for this purpose. In 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 WITNESS 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 STATE OF CALIFORNIA
Department of Boating and Waterways
BY: /:� /i _�..;lt. BY: ..
Th.mas H. Magn s Raynt{ Tsuneyos �?
Colonel, US A y Director
District Comma
Los Angeles District
U.S. Army Corps of Engineers
DATE: 9/11706 DATE: ` ji g (at
5 °tc
Don ofNEAp,1
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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 San 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 -5b), 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.
IN WITNESS WHEREOF, I have made and executed this certification this 17 day
of , 20O
a t , r0.1
Pe ' L. Sc z
Chief Counsel
Department of Boating and Waterways
State of California
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CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included
in the award documents for all subawards 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. Any
person who fails to file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.
♦..,• i.'. .ate � -.1��
Raynor suneyoshi
Director
State of California, Department of Boating and Waterways
DATE: c k �1�fi�1Y.
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