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HomeMy WebLinkAbout1996-07-23; City Council; 13753; APPROVAL OF A PROJECT COOPERATIVE AGREEMENT FOR THE CONSTRUCTION OF A SHORE PROTECTION WALL ADJACENT TO THE AGUA HEDIONDA LAGOONI e F) ', I CITY OF CARLSBAD - AG NDA BILL 2')- jf q,: .-:, ' .^ . 'I AB# j3: 3 -5 :3 CITY MGR. DEPT. ENG CITY ATTY PROTECTION WALL ADJACENT TO THE MTG. *]-23 - ?[;? DEPT. HD. TITLE APPROVAL OF A PROJECT COOPERATIVE AGREEMENT FOR THE CONSTRUCTION OF A SHORE AGUA HEDIONDA LAGOON RECOMMENDED ACTION: Adopt Resolution No. 56-26 L{ authorizing the Mayor to execute a Project C Agreement between the City of Carlsbad and the U.S. Army Corps of Engine€ construction of a shore protection wall adjacent to the Agua Hedionda Lagoon. ITEM EXPLANATION: Since 1993, City staff has been pursuing various funding sources in order to constrl protection wall along Carlsbad Boulevard between the jetties adjacent to the Agu: Lagoon. The purpose of this structure is to protect Carlsbad Boulevard from potent as a result of wave action from intense storms originating off the Pacific Ocean. The proposed project will construct 2,500 linear feet of shore protection wall between t jetties with an additional 400 linear feet 'of rock revetment directly south of the inlet lagoon. Construction is projected to start in mid-September and is estimate approximately $4,128,000. . ga 2uLe A a> .rl E BrL u :% B -d !F 2% w QZ co mF :u ha J 0 2 3 0 u - As a result of the completion of the Reconnaissance Study for the Carlsbad coastlinl by the U.S. Army Corps of Engineer is 1994, a determination of federal interest protecting this portion of Carlsbad Boulevard from storm related damages. Since thai has been coordinating with the L.A. District of the Army Corps in the completion of t 103 - Continuing Authorization Project (CAP) report and design of the shore protecl this location, One of the final requirements of this process is the execution 01 Cooperative Agreement (PCA) outlining a cost sharing arrangement with the federal gc The cost sharing arrangements outlined in the attached agreement stipulates thz excess of the Army Corps of Engineers $2,000,000 limit will be the responsibility c sponsor. According to the federal construction process, the Army Corps will adrr construction contract, however the City will provide a full time inspector as part of team. The staff costs for the on-site inspector will be applied as in-kind services and t to the total City contribution. FISCAL IMPACT: The Section 103 program provides for a maximum of $2,000,000 to appropriate shorelil projects. According to the PCA, the local sponsor will be responsible for all costs in this limit. On June 4, 1996, the Council executed a cost sharing agreement with additional $800,000 has been previously appropriated through the City's Capital Im Program (CIP). Department of Boating and Waterways securing $1,335,000 for this needed prc d 0 0 Page Two of Agenda Bill No. i 3 , '3 5 2 A requirement of the PCA is to deposit the combination of the state and local fur escrow account which will be drawn upon as construction items are completed. The for the on-site inspector will be applied as in-kind services and be credited to thc contribution. EXHIBITS: I. Resolution No., Ct Ir; - a6'1 authorizing the Mayor to execute a Program C Agreement between the City of Carlsbad and the U.S. Army Corps of Engine construction of a shore protection wall adjacent to the Agua Hedionda Lagoon. 2. Project Cooperative Agreement between the City of Carlsbad and the U. S. Art- Engineers. * I1 0 0 L 1 RESOLUTION NO. 96-264 2 3 41 5 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE A PROJECT COOPERATIVE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE U.S. ARMY CORPS OF ENGINEERS FOR THE CONSTRUCTION OF A SHORE PROTECTION WALL ADJACENT TO THE AGUA HEDIONDA LAGOON 71 8l I WHEREAS, the City Council of the City of Carlsbad wishes to protect 2 9 of Carlsbad Boulevard adjacent to the Agua Hedionda Lagoon from possible lo as a result of intense storms generated off the Pacific Ocean; and l1 ll WHEREAS, the City has been coordinating its efforts with the Los 12 /I I1 District of the Army Corps of Engineers in the completion of a Section 103 - Cc 13 14 Authorization Project process for the shore protection wall at the Agua t 15 Lagoon; and 16 WHEREAS, as part of the Section 103 process, the City of Carlsbad is l7 18 to execute a Project Cooperative Agreement (PCA) in order to receive funding federal government for the shore protection project; and 19 20 WHEREAS, it is in the interest of the City to secure the funds in order 1 21 22 24 WHEREAS, pursuant to the provisions of the PCA, the City is required 23 and this highly traveled northlsouth circulation roadway from potential damage fro the state and local funds designated for this project into an escrow account. 25 !I NOW, THEREFORE, BE IT RESOLVED by the City Council of tt- 26 ll 27 ll Carlsbad, California, as follows: 28 !! 1. That the above recitations are true and correct. I I 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 7s 20 21 22 23 24 25 26 27 28 e 0 2. That it is in the interest of the City of Carlsbad to secure $Z,OOO,OOC the U.S. Army Corps of Engineers through the Section 103 - Continuing Autt- Project (CAP) process for the construction of a shore protection wall adjace Agua Hedionda Lagoon. 3. That the Mayor and City Clerk are hereby authorized to execute th Cooperative Agreement between the City of Carlsbad and the US. Army Engineers. 4. That the City Treasurer is hereby authorized to establish an escrov for said project. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carl Council held on the 13th day of August , 1996 by the following vo AYES: Council Members Lewis, Nygaard, Kulchin, Hall and Finni NOES: None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Cl$k (SEAL) 1' 0 0 PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF CARLSBAD, CALIFORNIA FOR CONSTRUCTION OF THE CARLSBAD BOULEVARD (AGUA HEDIONDA) STORM DAMAGE REDUCTION PROJECT CARLSBAD, CALIFORNIA * THI AGREEMENT is entered into this /PA day ( Engineer for the Los Angeles District (hereinafter the "Districi , 199A, by and between the DEPARTMENT OF THE ARM nafter the "Governmentt1) , represented by the U.S. Army Engineer"), and the City of Carlsbad, California (hereinafter tl "Non-Federal Sponsor"), represented by the Mayor of the City of Carlsbad. WITNESSETH, THAT: WHEREAS, the Carlsbad Boulevard (Agua Hedionda) Storm Dama! Reduction Project in the City of Carlsbad, San Diego County, California (hereinafter the tfProjecttl) was approved for construction by Commander, South Pacific Division on 2 July 199r pursuant to the authority contained in Section 103 of the River and Harbor Act of 1962, as amended, 33 U.S.C. 426g. WHEREAS, the Government and the Non-Federal Sponsor desire to enter into a Project Cooperation Agreement for construction ( the Project, as defined in Article LA. of this Agreement; WHEREAS, Section 103 of the Water Resources Development Ac. of 1986, Public Law 99-662, as amended, specifies the cost-sharing requirements applicable to the Project; WHEREAS, Pursuant to Section 103 of the River and Harbor Ac of 1962, as amended, 33 U.S.C. 426g, the Government may expend 1 to $2,000,000 on a single storm damage reduction project; WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended, and Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amende( provide that the Secretary of the Army shall not commence construction of any water resources project, or separable elemel thereof, until each non-Federal sponsor has entered into a written agreement to furnish its required cooperation for the project or separable element; WHEREAS, the Government and Non-Federal Sponsor have the full authority and capability to perform as hereinafter set for. and intend to cooperate in cost-sharing and financing of the 1 i 9 a construction of he Project in accordance with the terms of thi: Agreement. NOW, THEREFORE, the Government and the Non-Federal Sponsor agree as follows: ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS For purposes of this Agreement: A. The term "Project" shall mean protection of Carlsbad Boulevard between the intake and outlet jetties of Agua Hediond; hgOOn by Constructing a 2,504-foot long steel sheetpile seawal: with a concrete cap, starting approximately 400 feet downcoast ( the south intake jetty of Agua Hedionda Lagoon and ending at tht north outlet jetty, with rock placed along the seawall as toe protection and on the north revetment between the south intake jetty and the beginning of the seawall, as generally described i the Detailed Project Report entitled Carlsbad Boulevard. Carlsbad. San Dieao County. California, dated April, 1996 and approved by Commander,South Pacific Division on May 8, 1996. B. The term "total project costs'l shall mean all costs incurred by the Non-Federal Sponsor and the Government in accordance with the terms of this Agreement directly related to construction of the Project. Subject to the provisions of this Agreement, the term shall include, but is not necessarily limite to: engineering and design costs during the preparation of contract plans and specifications; engineering and design costs during construction; the costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XV.A. of this Agreement; costs of historic preservation activities in accordance with Article XVII1.A. of this Agreement actual construction costs; supervision and administration costs; costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; costs of contract dispute settlements or awards; the value of lands, easements, rights-of-way, relocations, and suitable borrow and dredged or excavated material disposal areas for which the Government affords credit in accordance with Article IV of this Agreement; and costs of audit in accordance with Article X of this Agreement. The term does not include any costs for operation, maintenance, repair, replacement, or rehabilitation; any costs due to betterments; or any costs of dispute resolution under Article VI1 of this Agreement. e. The term '!financial obligation for construction" shall mean a financial obligation of the Government other than an obligation pertaining to the provision of lands, easements, rights-of-way, relocations, and borrow and dredged or excavated material disposal areas, that results or would result in a cost that is or would be included in total project costs. D. The term "non-Federal proportionate share" shall mean the ratio of the Non-Federal Sponsor's total cash contribution 2 i 0 e required in accordance with Articles II.D.2. of this Aqreement t total financial obligations for construction, as projected by tk Government. E. The term "period of construction" shall mean the time from the date the Government first notifies the Non-Federal Sponsor in writing, in accordance with Article V1.B. of this Agreement, of the scheduled date for issuance of the solicitatic for the first construction contract to the date that the Distric Engineer notifies the Non-Federal Sponsor in writing of the Governmentls determination that construction of the Project is complete. F. The term "highwayT1 shall mean any public highway, roadway, street, or way, including any bridge thereof. G. The term llrelocationll shall mean providing a functionally equivalent facility to the owner of an existing utility, cemetery, highway or other public facility, or railroad (including any bridges thereof) when such action is authorized i accordance with applicable legal principles of just compensation Providing a functionally equivalent facility may take the form c alteration, lowering, raising, or replacement and attendant removal of the affected facility or part thereof. H. The term "fiscal year" shall mean one fiscal year of th Government. The Government fiscal year begins on October 1 and ends on September 30. I. The term llfunctional portion of the Project" shall mean a portion of the Project that is suitable for tender to the Non- Federal Sponsor to operate and maintain in advance of completion of the entire Project. For a portion of the Project to be suitable for tender, the District Engineer must notify the Non- Federal Sponsor in writing of the Government's determination thal the portion of the Project is complete and can function independently and for a useful purpose, although the balance of the Project is not complete. J. The term llbetterrnentll shall mean a change in the design and construction of an element of the Project resulting from the application of standards that the Government determines exceed those that the Government would otherwise apply for accomplishin( the design and construction of that element. ARTICLE I1 - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to the availability of funds an( using those funds and funds provided by the Non-Federal Sponsor, shall expeditiously construct the Project applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. 3 Ir 0 0 1. The Government shall afford the Non-Federal SDonsc the opportunity to review and comment on the solicitations 'for all contracts, including relevant plans and specifications, pric to the Government's issuance of such solicitations. The Government shall not issue the solicitation for the first construction contract until the Non-Federal Sponsor has confirme in writing its willingness to proceed with the Project. To the extent possible, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract modifications, including change orders, prior to the issuance to providing the Non-Federal Sponsor with notification of a contrac modification or change order is not possible prior to issuance c the Notice to Proceed, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federa Sponsor 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 Non-Federal Sponsor, but the contents of solicitations, award of contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the Government. the contractor of a Notice to Proceed. In any instance where 2. Throughout the period of construction, the Distric' Engineer shall furnish the Non-Federal Sponsor with a copy of thc Government's Written Notice of Acceptance of Completed Work for each contract for the Project. B. The Non-Federal Sponsor may request the Government to accomplish betterments. Such requests shall be in writing and shall describe the betterments requested to be accomplished. If the Government in its sole discretion elects to accomplish the requested betterments or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non- Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article V1.C. of this Agreement. C. When the District Engineer determines that the entire Project is complete or that a portion of the Project has become E functional portion of the Project, the District Engineer shall sc notify the Non-Federal Sponsor in writing and furnish the Non- Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the "OMRR&R Manual") and with copies of all of the Government's Written Notices of Acceptance of Completed work for all contracts for the Project or the functional portion of the Project that have not been provided previously. Upon such notification, the Non- Federal Sponsor shall operate, maintain, repair, replace, and 4 a rehabilitate the entire Project or the functlonal Dortion of the 0 0 Project in accordance with Article VI11 of this Agreement. D. The Non-Federal Sponsor shall contribute a minimum of 35 percent of total project costs in accordance with the provisions of this paragraph. 1. In accordance with Article 111 of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, material disposal areas that the Government determines the Non- Federal Sponsor must provide for the construction, operation, ar maintenance of the Project, and shall perform or ensure performance of all relocations that the Government determines tc be necessary for the construction, operation, and maintenance of the Project. rights-of-way, and suitable borrow and dredged or excavated 2. If the Government projects that the value of the Non-Federal Sponsor's contributions under paragraphs D.l. of thi Article and Articles V, X, and XV.A. of this Agreement will be less than 35 percent of total project costs, the Non-Federal Sponsor shall provide a cash contribution, in accordance with Article V1.B. of this Agreement, in the amount necessary to make the Non-Federal Sponsor's total contribution equal to 35 percent of total project costs. 3. Subject to Article XIX of this Agreement, if the Government determines that the value of the Non-Federal Sponsor! contributions provided under paragraphs D.l and D.2 of this Article and Articles V, X, and XV.A. of this Agreement has exceeded 35 percent of total project costs, the Government, subject to the availability of funds, shall reimburse the Non- Federal Sponsor for any such value in excess of 35 percent of total project costs. After such a determination, the Government in its sole discretion, may provide any remaining Project lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas and perform any remaining Project relocations on behalf of the Non-Federal Sponsor. E. The Non-Federal Sponsor may request the Government to provide lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or perform relocations on behalf of the Non-Federal Sponsor. Such requests shall be in writing and shall describe the services requested to be performed. If in its sole discretion the Government elects tc perform the requested services or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article V1.C. of this Agreement. Notwithstanding the 5 provision of lan d s, easements, rights-of-wa 9 and suitable borrc and dredged or excavated material disposal areas or performance of relocations by the Government, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance wit Article XV.C. of this Agreement. F. The Government shall perform a final accounting in accordance with Article V1.D. of this Agreement to determine the contributions provided by the Non-Federal Sponsor in accordance with paragraphs B., D., and E. of this Article and Articles V, 1 and XV.A. of this Agreement and to determine whether the Non- Federal Sponsor has met its obligations under paragraphs B., D., and E. of this Article. G. The Non-Federal Sponsor shall not use Federal funds to meet the Non-Federal Sponsor's share of total project costs unde this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. H. The Non-Federal Sponsor agrees to participate in and comply with applicable Federal floodplain management and flood insurance programs. I. Not less than once each year the Non-Federal Sponsor shall inform affected interests of the extent of protection afforded by the Project. J. The Non-Federal Sponsor shall publicize flood plain information in the area concerned and shall provide this information to zoning and other regulatory agencies for their us in preventing unwise future development in the flood plain and i adopting such regulations as may be necessary to prevent unwise future development and to ensure compatibility with protection levels provided by the Project. ARTICLE I11 - LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LA1 91-646 COMPLIANCE A. The Government, after consultation with the Non-Federal Sponsor, shall determine the lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, including those required for relocations, borrow materials, and dredged or excavated material disposal. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsor must provide, in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non- Federal Sponsor with a written notice to proceed with acquisitio of such lands, easements, and rights-of-way. Prior to the end o the period of construction, the Non-Federal Sponsor shall acquirc all lands, easements, and rights-of-way set forth in such 6 descriptions. Furthermore, 0 prior to issuance 0 of the solicitatic for each construction contract, the Non-Federal Sponsor shall provide the Government with authorization for entry to all lands easements, and rights-of-way the Government determines the Non- Federal Sponsor must provide for that contract. For so long as the Project remains authorized, the Non-Federal Sponsor shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the operation and maintenance of the Project and that were provided by the Non- compatible with the authorized purposes of the Project. Federal Sponsor are retained in public ownership for uses B. The Government, after consultation with the Non-Federal Sponsor, 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 the Project. Such improvements ma include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stillin basins, and de-watering pumps and pipes. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions of such improvements in detail sufficient t enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with construction of such improvements Prior to the end of the period of construction, the Non-Federal Sponsor shall provide all improvements set forth in such descriptions. Furthermore, prior to issuance of the solicitatio for each Government construction contract, the Non-Federal Sponsor 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 Non-Federal Sponsor, shall determine the relocations necessary for the construction, operation, and maintenance of the Project, including those necessary to enable the removal of borrow materials and the proper disposal of dredged or excavated material. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to proceed with such relocations. Prior to the end of the period of construction, the Non-Federal Sponsor shall perform or ensure the performance of all relocations as set fort1 in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non- Federal Sponsor 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. 7 D. The Non- @ ederal Sponsor in a time1 9 manner shall provic 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 wit Article IV of this Agreement and in a timely manner, shall determine the value of such contribution, include such value in total project costs, and afford credit for such value toward the Non-Federal Sponsor's share of total project costs, E. The Non-Federal Sponsor shall comply with the applicab: provisions of the Uniform Relocation Assistance and Real Propert Acquisition Policies Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportation and Uniform Relocatio~ Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. ARTICLE IV - CREDIT FOR VALUE OF LANDS, RELOCATIONS, AND DISPOS? AREAS A. The Non-Federal Sponsor shall receive credit toward its share of total project costs for the value of the lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas that the Non-Federal Sponsor must provide pursuant to Article I11 of this Agreement, and for the value of the relocations that the Non-Federal Sponsor must perform or for which it must ensure performance pursuant to Article I11 of this Agreement. However, the Non-Federal Sponsor shall not receive credit for the value of any lands, easements, rights-of-way, relocations, or borrow and dredged or excavated material disposal areas that have been provided previously as an item of cooperation for another Federal project. The Non-Federa Sponsor also shall not receive credit for the value of lands, easements, rights-of-way, relocations, or borrow and dredged or excavated material disposal areas to the extent that such items are provided using Federal funds unless the Federal granting agency verifies in writing that such credit is expressly authorized by statute. B. For the sole purpose of affording credit in accordance with this Agreement, the value of lands, easements, and rights- of-way, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, shall be the fair market value of the real property interests, plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this paragraph. 1. Date of Valuation. The fair market value of lands easements, or rights-of-way owned by the Non-Federal Sponsor on a a e the effective date of this Agreement shall be the fair market value of such real property interests as of the date the Non- Federal Sponsor provides the Government with authorization for entry thereto. The fair market value of lands, easements, or rights-of-way acquired by the Non-Federal Sponsor after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired. 2. General Valuation Procedure. Except as provided i paragraph B.3. of this Article, the fair market value of lands, easements, or rights-of-way shall be determined in accordance with paragraph B.2.a. of this Article, unless thereafter a different amount is determined to represent fair market value in accordance with paragraph B.2.b. of this Article. a. The Non-Federal Sponsor shall obtain, for eac real property interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non-Federal Sponsor and the Government. The appraisal must be prepared in accordancl with the applicable rules of jusk compensation, as specified by the Government. The fair market value shall be the amount set forth in the Non-Federal Sponsorls appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non-Federal Sponsor's appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non-Federal Sponsor's second appraisal, or the Non-Federal Sponsor 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 Non-Federal Sponsor. In the event the Non- Federal Sponsor does not approve the Government's appraisal, the Government, after consultation with the Non-Federal Sponsor, shall consider the Government's and the Non-Federal Sponsor's appraisals and determine an amount based thereon, which shall be deemed to be the fair market value. shall be the amount set forth in the Non-Federal gponsor's seconc b. Where the amount paid or proposed to be paid by the Non-Federal Sponsor for the real property interest exceeds the amount determined pursuant to paragraph B.2.a. of this Article, the Government, at the request of the Non-Federal Sponsor, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation witk the Non-Federal Sponsor, 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 Non-Federal Sponsor, but no less than the amount determined pursuant to paragraph B.2.a. of this Article. 9 1 0 0 3. Eminent Domain Valuation Procedure. For lands, easements, or rights-of-way acquired by eminent domain proceedings instituted after the effective date of this Agreement, the Non-Federal Sponsor 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 tk 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 Non-Federal Sponsor 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 disapprova of the appraisal, including the reasons for disapproval, within shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Government's written disapproval. If, after such good faith consultation, th Government and the Non-Federal Sponsor agree as to an appropriat amount, then the Non-Federal Sponsor shall use that amount as th estimate of just compensation for the purpose of instituting the eminent domain proceeding. If, after such good faith consultation, the Government and the Non-Federal Sponsor cannot agree as to an appropriate amount, then the Non-Federal Sponsor may use the amount set forth in its appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. such 60-day period, the Government and the Non-Federal Sponsor 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 the Project, or the amount of any stipulated settlement or portion thereof that the Government approves in writing. 4. Incidental Costs. For lands, easements, or rights. of-way acquired by the Non-Federal Sponsor within a five-year period preceding the effective date of this Agreement, or at any time after the effective date of this Agreement, the value of the interest shall include the documented incidental costs of acquiring the interest, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. Such incidental costs shall include, but not necessarily be limited to, closing and title costs, appraisal costs, survey 10 0 0 costs, attorney's fees, plat maps, and mapping costs, as well a: the actual amounts expended for payment of any Public Law 91-646 relocation assistance benefits provided in accordance with Article 1II.E. of this Agreement. C. After consultation with the Non-Federal Sponsor, the Government shall determine the value of relocations in accordan( 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, anc by the salvage value of any removed items. 2. For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary tc accomplish the relocation in accordance with the design standarc that the State of California would apply under similar conditio1 of geography and traffic load, reduced by the salvage value of any removed items. 3. Relocation costs shall include, but not necessaril be limited to, actual costs of performing the relocation; planning, engineering and design costs; supervision and administration costs; and documented incidental costs associatec 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 audi.t in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. D. The value of the improvements made to lands, easements, and rights-of-way for the proper disposal of dredged or excavate material shall be the costs of the improvements, as determined L the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocabilitl and allowability of costs. Such costs shall include, but not necessarily be limited to, actual costs of providing the improvements; planning, engineering and design costs; supervisio and administration costs; and documented incidental costs associated with providing the improvements, but shall not includ any costs due to betterments, as determined by the Government. ARTICLE V - PROJECT COORDINATION TEAM A. To provide for consistent and effective communication, the Non-Federal Sponsor 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 11 0 0 Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chair the Project Coordination Team. B. The Government's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Project Coordination Team pending issues and actions, and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. informed of the progress of construction and of significant C. Until the end of the period of construction, the Projec Coordination Team shall generally oversee the Project, including issues related to design; plans and specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and modifications; contract costs; the Government's cost projections; final inspection of the entir Project or functional portions of the Project; preparation of th proposed OMRR&R Manual; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, replacement, and rehabilitation of the Project; and other relate matters. D. The Project Coordination Team may make recommendations that it deems warranted to the District Engineer on matters that the Project Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Coordination Team. The Government, having the legal authority and responsibility for construction of the Project, ha; the discretion to accept, reject, or modify the Project Coordination Team's recommendations. E. The costs of participation in the Project Coordination Team shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE VI - METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties and current projections of total project costs and costs due to betterments. By July of each year and at least quarterly thereafter, the Government shal: provide the Non-Federal Sponsor with a report setting forth all contributions provided to date and the current projections of components of total project costs, of each party's share of total project costs, of the Non-Federal Sponsor's total cash contributions required in accordance with Articles II.B., II.D., and 1I.E. of this Agreement, of the non-Federal proportionate share, and of the funds the Government projects to be required from the Non-Federal Sponsor for the upcoming fiscal year. On the effective date of this Agreement, total project costs are projected to be $4,128,000, and the Non-Federal Sponsor's cash contribution required under Article 1I.D. and Article XIX of this Agreement is projected to be $2,128,000. Such amounts are total project costs, of total costs due to betterments, of the 12 e 0 estimates subject to adjustment by the Government and are not t be construed as the total financial responsibilities of the Government and the Non-Federal Sponsor. B. The Non-Federal Sponsor shall provide the cash contribution required under Article II.D.2. and Article XIX of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 60 calendar days prior to the scheduled date for issuance of the solicitation for the first construction contract, the Government shall notify the Non- Federal Sponsor in writing of such scheduled date and the funds the Government determines to be required from the Non-Federal Sponsor to meet the non-Federal proportionate share of projecte financial obligations for construction through the first fiscal year of construction, including the non-Federal proportionate share of financial obligations for construction incurred prior the commencement of the period of construction. Not later than such scheduled date, the Non-Federal Sponsor shall verify to th satisfaction of the Government that the Non-Federal Sponsor has deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non Federal Sponsor. 2. For the second and subsequent fiscal years of construction, the Government shall notify the Non-Federal Spons in writing, no later than 60 calendar days prior to the beginni of that fiscal year, of the funds the Government determines to required from the Non-Federal Sponsor to meet the non-Federal proportionate share of projected financial obligations for construction for that fiscal year. No later than 30 calendar days prior to the beginning of the fiscal year, the Non-Federal Sponsor shall make the full amount of the required funds for th fiscal year available to the Government through the funding mechanism specified in Article VI.B.1. of this Agreement. 3. The Government shall draw from the funds provided by the Non-Federal Sponsor such Sums as the Government deems necessary to cover: (a) the non-Federal proportionate share of financial obligations for construction incurred prior to the commencement of the period of construction; and (b) the non- Federal proportionate share of financial obligations for construction as they are incurred during the period of construction. 4. If at any time during the period of construction the Government determines that additional funds will be needed from the Non-Federal Sponsor to cover the non-Federal proportionate share of projected financial obligations for construction for the current fiscal year or comply with Article XIX of this Agreement, the Government shall notify the Non- Federal Sponsor in writing of the additional funds required, an the Non-Federal Sponsor, no later than 60 calendar days from receipt of such notice, shall make the additional required fund ". I .. 13 available throug 6 the payment mechanism specified e in Article VI.B.l. of this Agreemenc. C. In advance of the Government incurring any financial obligation associated with additional work under Article 1I.B. I 11 .E. of this Agreement, the Non-Federal Sponsor shall verify t the satisfaction of the Government that the Non-Federal Sponsor has deposited the full amount of the funds required to pay for such additional work in an escrow or other account acceptable tc the Government, with interest accruing to the Non-Federal Sponsor. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government deems necessary to cover the Government's financial obligations for such additional work as they are incurred. In the event the Government determines that the Non-Federal Sponsor must provide additional funds to meet its cash contribution, the Government shall notify the Non-Federal Sponsor in writing of the addition? funds required. Within 60 calendar days thereafter, the Non- Federal Sponsor shall provide the Government with a check for tl: full amount of the additional required funds. D. Upon completion of the Project or termination of this Agreement, and upon resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non-Federal Sponsor with the results of the final accounting. The final accounting shall determine total project costs, each party's contribution provided thereto, and each party's required share thereof. The final accounting also shall determine costs due to betterments and the Non-Federal Sponsor's cash contribution provided pursuant to Article 1I.B. of this Agreement. 1. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor is less than its required share of total project costs plus costs due tc any betterments provided in accordance with Article 1I.B. of thi Agreement, the Non-Federal Sponsor shall, no later than 90 calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is required to meet th Non-Federal Sponsor's required share of total project costs plus costs due to any betterments provided in accordance with Article 1I.B. of this Agreement. 2. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor exceeds its required share of total project costs plus costs due to any betterments provided in accordance with Article 1I.B. of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Non-Federal Sponsor no later tha 90 calendar days after the final accounting is complete. In the event existing funds are not available to refund the excess to appropriations as are necessary to make the refund. the Non-Federal Sponsor, the Government shall seek such ARTICLE VI1 - DISPUTE RESOLUTION '_ r 14 e 0 As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the othe: party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. ~f t: parties cannot resolve the dispute through negotiation, they ma: agree to a mutually acceptable method of non-binding alternativt dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any cost for the services provided by such a third party as such costs a1 incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION (OMRR&R) A. Upon notification in accordance with Article 1I.C. of this Agreement and for so long as the Project remains authorizec the Non-Federal Sponsor shall operate, maintain, repair, replace and rehabilitate the entire Project or the functional portion of the Project, at no cost to the Government, in a manner compatibl with the Project's authorized purposes and in accordance with applicable Federal and State laws as provided in Article XI of this Agreement and specific directions prescribed by the Government in the OMRR&R Manual and any subsequent amendments thereto. B. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, access to the Project for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining repairing, replacing, or rehabilitating the Project. If an inspection shows that the Non-Federal Sponsor 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 Non-Federal Sponsor. If, after 30 calendar days from receipt of notice, the Non-Federal Sponsor continues t fail to perform, then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property that the Non-Federal Sponsor owns or controls for acces to the Project for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the Non-Federal Sponsor of responsibility to meet the Non-Federal Sponsor'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 upon property that the Non-Federal Sponsor owns or controls for ARTICLE IX - INDEMNIFICATION The Non-Federal Sponsor shall hold and save the Government free from all damages arising from the construction, operation, maintenance, repair, replacement, and rehabilitation of the 15 e 0 Project and any Project-related betterments, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective dat of this Agreement, the Government and the Non-Federal Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements fol Grants and Cooperative Agreements to State and Local Governments at 32 C.F'.R. Section 33.20. The Government and the Non-Federal Sponsor shall maintain such books, records, documents, and othel evidence in accordance with these procedures and for a minimum c three years after the period of construction and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government arl the Non-Federal Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. Pursuant to 32 C.F.R. Section 33.26, the Non-Federal Sponsor is responsible for complying with the Single Audit Act c 1984, 31 U.S.C. Sections 7501-7507, as implemented by Office of Management and Budget (OMB) Circular No. A-128 and Department of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor and to the extent permitted under applicable Federal law and regulations, the Government shall provide to the Non-Federal Sponsor and independent auditors any information necessary to enable an audit of the Non-Federal Sponsor's activities under this Agreement. The costs of any non-Federal audits performed i accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-128, and such costs as are allocated to the Project shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Non-Federal Sponsor is required to conduct under the Single Audi Act. Any such Government audits shall be conducted in accordanc with Government Auditing Standards and the cost principles in OM Circular No. A-87 and other applicable cost principle-s and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total projeci costs and cost shared in accordance with the provisions of this Agreement. ARTICLE XI - FEDERAL AND STATE LAWS 16 -. e 0 In the exercise of their respective rights and obligations under this Agreement, the Non-Federal Sponsor and the Government a 7 ree to comp1y wm @JA applicable Federal and StatQ lam ~nd regulations, including, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". ARTICLE XI1 - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non- Federal Sponsor 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 thi Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor either pursuant to any cause of action that such other party may have or for violation of any law. ARTICLE XI11 - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE XIV - TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under Article II.B., II.D., II.E., VI, or XVII1.C. of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements wit: any other non-Federal interests in connection with the Project. performance under this Agreement unless he determines that B. If the Government fails to receive annual appropriation in amounts sufficient to meet Project expenditures for the then- current or upcoming fiscal year, the Government shall so notify the Non-Federal Sponsor in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until such timc as the Government receives sufficient appropriations or until either the Government or the Non-Federal Sponsor elects to terminate this Agreement. 17 *J 0 0 C. In the event that either party elects to terminate thi Agreement pursuant to this Article or Article XV of this Agreement, both parties shall conclude their activities Helatin to the Project and proceed to a final accounting in accordance with Article V1.D. of this Agreement. D. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XV of this Agreement shall not relieve the parties of liability for any obligation previously incurred. A: delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which Such payment became delinquent, or auctioned immediately prior the beginning of each additional 3-month period if the period o delinquency exceeds 3 months. ARTICLE XV - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction b: the District Engineer, the Non-Federal Sponsor shall perform, 01 cause to be performed, any investigations for hazardous substances that the Government or the Non-Federal Sponsor 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 'ICERCLAII), 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 I11 of this Agreement, to be required for the construction, operation, and Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the Non-Federal Sponsor with prior specific written direction, in which case the Non-Federal Sponsc shall perform such investigations in accordance with such writtc direction. All actual costs incurred by the Non-Federal Sponso~ for such investigations for hazardous substances shall be included in total project costs and cost shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. maintenance of the Project. However, for lands that the B. In the event it is discovered through any investigatior for hazardous substances or other means that hazardous substance regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article I11 of this Agreement, to be required for ti Federal Sponsor and the Government shall provide prompt written notice to each other, and the Non-Federal Sponsor shall not proceed with the acquisition of the real property interests unti both parties agree that the Non-Federal Sponsor should proceed. construction, operation, and maintenance of the Project, the Nor 18 4 0 0 C. The Government and the Non-Federal Sponsor shall determine whether to initiate construction of the Project, or, i Project, 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 a] found to exist in, on, or under any lands, easements, or rights- of-way that the Government determines, pursuant to Article I11 c this Agreement, to be required for the construction, operation, and maintenance of the Project. Should the Government and the Non-Federal Sponsor determine to initiate or continue with construction after considering any liability that may arise unde CERCLA, the Non-Federal Sponsor shall be responsible, as betweer the Government and the Non-Federal Sponsor, for the costs of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response tc the contamination. Such costs shall not be considered a part of total project costs. In the event the Non-Federal Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non-Federal Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue wor on the Project. already in constructi?nl whether Lu Gontinue with work on the D. The Non-Federal Sponsor and the Government shall consul with each other in accordance with Article V of Lhis Agreement i an effort to ensure that responsible parties bear any necessary clean up and response costs as defined in CERCLA. Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA. E. As between the Government and the Non-Federal Sponsor, the Non-Federal Sponsor shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non-Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI - NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be personally or by telegram or mailed by first-class, registered, or certified mail, as follows: deemed to have been duly given if in writing and either delivere' If to the Non-Federal Sponsor: Mayor City of Carlsbad 2075 Los Palmas Drive Carlsbad, California 92009 19 . 4 e e If to the Government: District Engineer U.S. Army Corps of Engineers, Los Angeles 911 Wilshire Boulevard Los Angeles, California 90017 B. A party may change the address to which such communications are to be directed by giving written notice to tk other party in the manner provided in this Article. C. Any notice, request, demand, or other communication mac pursuant to this Article shall be deemed to have been received k the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XVII - CONFIDENTIALITY TO the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XVIII - HISTORIC PRESERVATION A. The costs of identification, survey and evaluation of historic properties shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. B. As specified in Section 7(a) of Public Law 93-291 (16 U.S.C. Section 469c(a)), the costs of mitigation and data recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in total project costs, up to the statutory limit of one percent of the total amount the Government is authorized to expend for the Project. C. The Government shall not incur costs for mitigation and data recovery that exceed the statutory one percent limit specified in paragraph B. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit in accordance with Section 208(3) of Public Law 96-515 (16 U.S.C. Section 469c-2(3)). Any costs of mitigation and data recovery that exceed the one percent limit shall not be included in total project costs but shall be cost shared between the Non- Federal Sponsor and the Government consistent with the minimum non-Federal cost sharing requirements for the underlying storm damage reduction purpose, as follows: 35 percent borne by the Non-Federal Sponsor, and 65 percent borne by the Government. ARTICLE XIX - LIMITATION OF GOVERNMENT EXPENDITURES 20 r b * In acco m ance with Section 103 of a River and Harbor I. Act of 1962, as amended, the Government's financial participatil rn in the Project is limited to $2,000,000 which shall include all Federal funds expended by the Government for planning, design, and implementation of the project, except for coordination account funds expended prior to the first work allowance for study initiation. Notwithstanding any other provision of this Agreement, the Non-Federal Sponsor shall be responsible for all costs in excess of this amount. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it i signed by the Department of the Army and shall provide such cos in accordance with Article V1.B of this Agreement. THE DEPARTMENT OF THE ARMY THE CITY OF C-, / BY: BY : Michal R. Robinson Colonel, Corps of Engineers District Engineer Bud Lewis Mayor City of Carlsbdd DATE : AW7J /5 199% DATE : /-? I994 / .) 21