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Item O06 06 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE Mayor Craig Cates,District 1 The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5 Michelle Lincoln,District 2 James K.Scholl,District 3 m' David Rice,District 4 Board of County Commissioners Meeting October 18, 2023 Agenda Item Number: 06 2023-1572 BULK ITEM: Yes DEPARTMENT: Sustainability TIME APPROXIMATE: STAFF CONTACT: Rhonda Haag AGENDA ITEM WORDING: SUSTAINABILITY: Approval of a $1,465,000 Design Agreement with the United States Army Corps of Engineers (USAGE), with the USACE's share of such costs projected to be $952,000, and the Non-Federal Sponsors (Monroe County) share projected to be $513,000, for the design and permitting of the U.S. 1 shoreline revetments as part of the Florida Keys Coastal Storm Risk Management Project developed by the U.S. Army Corps of Engineers (USAGE) and approved by the U.S. Congress for reducing coastal storm risk vulnerability in the Florida Keys. ITEM BACKGROUND: This item is for the design and permitting (only) of up to 6 shoreline stabilizations along U.S. 1, which is a sub portion of the overall Project. The revetments are located on US 1, four of which are on Florida Department of Transportation right-of-way and include Indian Key fill, Fiesta Key West, Fiesta Key East, and West Summerland Key. Two of the revetments are located in Florida Department of Environmental Protection state parks and include Long Key and Bahai Honda. The current estimated cost for the design and permitting of the shoreline stabilizations is $1,465,000, with the USACE's share of such costs projected to be $952,000, and the Non-Federal Sponsor's (Monroe County) share projected to be $513,000. This Agreement is for the design and permitting only. Future agreements will be presented to the County for the construction, which is currently estimated at $24,814,000, with the USACE's share of such costs projected to be $16,129,000 and the Non-Federal Sponsor's (Monroe County) share projected to be $8,685,000. Since the work to be performed is located on FDOT and FDEP lands, both FDOT and FDEP are anticipated to fully fund the local share of the costs through sub agreements with the County. Both agencies have participated in multiple meetings with the County and the USAGE, and have indicated that they are willing to provide the local cost share. Grand Total U.S. Route 1 Shoreline Stabilization $24,814,000 1. West Summerland Key Alignment $2,509,000 2. Bahia Honda Key Alignment $5,803,000 4429 3. Long Key Alignment $4,557,000 4. Fiesta Key West Alignment $5,041,000 5. Fiesta Key East Alignment $3,452,000 6. Indian Key Fill Alignment $3,452,000 The shoreline stabilizations are included in the overall Project for the following reasons: (1)If U.S. Route 1 is damaged during a coastal storm event, the inability to travel by automobile between the islands and/or to the Florida mainland would likely increase mortality of the approximately 6,000 residents in the Keys that would not evacuate. (2) Residents unable to leave the islands due to U.S. Route 1 damage would be subjected to prolonged power loss and reduced or no access to emergency services and medical care which are two major contributing factors to fatalities following a storm event. (3) Damage to U.S. Route 1 also prevents the residents who followed evacuation orders from returning to their homes and businesses and delays post-storm cleanup and repair efforts, which can exacerbate damage initially caused by the storm and hinder community recovery after a storm event. Background: Federal funds were provided in the Energy and Water Development and Related Agencies Appropriations Act, 2023, Public Law 117-328 to initiate design of the Florida Keys, Monroe County Coastal Storm Risk Management Project. Section 103 of the Water Resources Development Act of 1986, as amended(33 U.S.C. 2213), specifies the cost-sharing requirements applicable to construction of the Project, and Section 105(c) of the Water Resources Development Act of 1986 (33 U.S.C. 2215(c)),provides that the costs of design shall be shared in the same percentages as construction of the Project. Based on the Project's primary purpose of coastal storm risk management, the parties agree that the Non-Federal Sponsor shall contribute 35 percent of the design costs under this Agreement. On December 26, 2022, after passing through the U.S. Congress and federal lawmakers, President Biden signed into law authorization of the U.S. Army Corps of Engineers (USAGE) $2.7 billion FL Keys Coastal Storm Risk Management Project for resiliency. On December 30, 2022, an initial appropriation of nearly $1 million was approved in the federal omnibus spending bill to fund the planning, engineering, and design of six U.S. 1 stabilization projects in the FL Keys Coastal Storm Risk Management Project, the first phase of the Project. Further appropriations for the Project will require separate, annual approvals by Congress. The U.S. 1 portion of the Project includes 5,500 feet of the roadway shoreline at mile markers 34.5, 37, 67, 70, 70.9, and 79.5, identified in the plan as vulnerable to coastal erosion and wave energy. Estimates for the completion of the construction phase of the U.S. 1 stabilization project are $16 million. Staff worked with USACE and local stakeholders for the past four years to move the project forward, including numerous public meetings to discuss the project. They then worked with the County's legislative team and elected officials to move the project authorization and appropriation through Congressional approval. Based on the results of the three-year USACE Coastal Storm Risk Management Feasibility Study, the approved Project now plans for the economic, environmental, and social effects of coastal storms and sea-level rise. The overall Project includes: 1) Hardening of up to 6 areas along the shoreline of U.S. 1; 2) Dry flood proofing of up to 43 (governmental-owned) critical infrastructure and 1052 4430 commercial buildings, and 3) Elevating up to 4,698 residential residences. The total project estimate is $2.7 billion, split 65% federal($1.7 billion) and 35% non-federal ($955 million). The following can provide the non-federal share of funds: State, County, Municipalities, Residents and Business Owners, and Other non-federal entities. The County is coordinating with the Florida Department of Transportation for the majority of the non- federal match, and with Florida Department of Environmental Protection for the remainder of the non- federal match, for the U.S. 1 stabilization phase of the project. The County will be executing a Project Partnership Agreement (PPA)with the USAGE, and intends to sign sub-agreements with FDOT and FDEP for the US 1 revetment work and with the five municipalities for home elevation and floodproofing work to authorize and fund work performed within the cities. The PPA is the cost share agreement that defines the responsibilities of the non-federal sponsor and federal government for project implementation. Numerous PPAs are anticipated as funding from Congress is anticipated to be piecemeal over the course of several years. History: On September 24, 2021, Lieutenant General Scott A. Spellmon of the Department of the Army signed the Chief of Engineers Report for the Florida Keys Coastal Storm Risk Management Project, formally authorizing the Project. (Attachment included). The report was subsequently submitted to Congress. The Chief of Engineers Report serves as the basis for the authorization of the Recommended Plan by Congress. Once the Recommended Plan is authorized and funds are appropriated, the federal government finances 65% of the total project cost. The County and the municipalities would be responsible for 35%. The County submitted a preliminary assessment of priorities in a letter dated January 22, 2021. (Attachment included). The Plan included measures located in each of the five municipalities, and Interlocal Agreements will be required to formalize participation under the County's PPA with the USAGE. Total Project Cost(65/35 cost share): $2,730,201,000 65% federal funding of project= $1,774,631,000 35% non-federal funding of project= $ 955,570,000 PREVIOUS RELEVANT BOCC ACTION: 09/19/18: Approval to enter into a Study Agreement with the U.S. Army Corps of Engineers to initiate a study partnership to investigate storm and sea level rise vulnerability for the U.S. 1 corridor in Monroe County, funded up to $3 Million by the USAGE; also, ratification of the Letter of Intent submitted by the County Administrator; request for Chief Financial Officer to sign the Self-Certification of Financial Capability; and authority for the County Attorney and the Mayor to sign related documents. 05/22/19: Presentation update on the partnership agreement with the U.S. Army Corps of Engineers for investigating storm and sea level rise vulnerability for the Florida Keys to provide the recommended list of alternatives for moving forward. 02/06/20: Presentation under the partnership agreement with the U.S. Army Corps of Engineers (USAGE) for investigating coastal storm risk vulnerability for the Florida Keys, to present and discuss the list of alternatives under the details of the recommendation for the Tentatively Selected Plan for Monroe County as developed by the USAGE. 4431 05/20/20: Approval of preferred alternative and its options for the Tentatively Selected Plan developed by the U.S. Army Corps of Engineers (USAGE)under the partnership agreement with USACE for investigating coastal storm risk vulnerability for the Florida Keys. 06/17/20: Discussion and direction of the preferred alternative and its options, including input from the municipalities, for the Tentatively Selected Plan developed by the U.S. Army Corps of Engineers (USAGE) under the partnership agreement with USACE for investigating coastal storm risk vulnerability for the Florida Keys. 10/21/20: Discussion and presentation of the newly revised $5.5 Billion preferred alternative developed by the U.S. Army Corps of Engineers (USAGE) and the option for the County to select a Locally Preferred Plan under the partnership agreement with USACE for investigating coastal storm risk vulnerability for the Florida Keys. 02/17/21: Discussion and direction of the final revised $2.6 Billion preferred alternative developed by the U.S. Army Corps of Engineers (USAGE) for reducing coastal storm risk vulnerability for the Florida Keys; and approval of the Letter of Support and Financial Certification that are required in order to complete the feasibility study, authorizing Ms. Boan to sign the Financial Certification and Mr. Gastesi to sign the Letter of Support. 11/17/21: Presentation and discussion of the next steps of the $2.772 Billion Plan developed by the U.S. Army Corps of Engineers (USAGE) for reducing coastal storm risk vulnerability for the Florida Keys. 02/15/23: Update,presentation and discussion of the $2.7 Billion FL Keys Coastal Storm Risk Management Project developed by the U.S. Army Corps of Engineers (USAGE) and approved by the U.S. Congress for reducing coastal storm risk vulnerability in the Florida Keys. CONTRACT/AGREEMENT CHANGES: Not applicable STAFF RECOMMENDATION: Approval. DOCUMENTATION: USACE Design Agreement US 1 Revetments only m for signature.pdf USACE Presentation Monroe County FL Keys_BOCC Item Nm8.pdf FINANCIAL IMPACT: Effective Date of contract: Upon Execution Expiration Date: N/A Total Dollar Value of Project: $1.6 MILLION Total Cost to County: $513,000 to be funded by FDOT and FDEP through sub agreements Current Year Portion: $0 Budgeted: No Source of Funds: FDOT and FDEP CPI: N/A Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: None Revenue Producing: No If yes, amount: Grant: N/A Local Match: 35% 4432 Insurance Required: No Additional Details: As the non-federal sponsor, the County is responsible for 35% of the $1,465,000 in design cost of the US 1 revetments (only), which the majority will be funded by FDOT and the minority by FDEP. The work being performed is on property owned by FDOT and FDEP, and thus they have agreed to be responsible for the costs. 4433 DESIGN AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND MONROE COUNTY, FLORIDA FOR DESIGN FOR THE FLORIDA KEYS, MONROE COUNTY, COASTAL STORM RISK MANAGEMENT PROJECT THIS AGREEMENT is entered into this day of by and between the Department of the Army (hereinafter the "Government"), represented by the District Commander for Jacksonville District(hereinafter the"District Commander") and Monroe County, Florida(hereinafter the "Non-Federal Sponsor"), represented by the Mayor. WITNESSETH, THAT: WHEREAS, Federal funds were provided in the Energy and Water Development and Related Agencies Appropriations Act, 2023, Public Law 117-328, to initiate design of the Florida Keys, Monroe County, Coastal Storm Risk Management Project; WHEREAS, Section 103 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 2213), specifies the cost-sharing requirements applicable to construction of the Project, and Section 105(c) of the Water Resources Development Act of 1986 (33 U.S.C. 2215(c)),provides that the costs of design shall be shared in the same percentages as construction of the Project; WHEREAS, based on the Project's primary purpose of coastal storm risk management, the parties agree that the Non-Federal Sponsor shall contribute 35 percent of the design costs under this Agreement; and WHEREAS, the Government and Non-Federal Sponsor have the full authority and capability to perform in accordance with the terms of this Agreement. NOW, THEREFORE, the parties agree as follows: ARTICLE I- DEFINITIONS A. The term "Project" means dry floodproofing 53 critical infrastructure buildings that were identified at risk to damage from coastal storms, nonstructural measures to reduce coastal storm damage to 4,698 residential and 1,052 nonresidential structures at risk throughout the Florida Keys, and stabilization of U.S. Route 1 (Overseas Highway), as generally described in the Florida Keys, Monroe County, Florida Coastal Storm Risk Management Chief s Report, dated September 2021 and approved by the Chief of Engineers on September 24, 2021. 4434 B. The term "Design" means performance of detailed pre-construction engineering and design, including preparation of plans and specifications for the initial construction contract for shoreline stabilization rock revetments along U.S. Route 1 (Overseas Highway) for the Project. C. The term "design costs" means the sum of all costs that are directly related to the Design and cost shared in accordance with the terms of this Agreement. Subject to the provisions of this Agreement, the term shall include the Government's costs for engineering and design, including economic, real estate, and environmental analyses, a safety assurance review, if required, and supervision and administration; and the Non-Federal Sponsor's creditable costs for in-kind contributions, if any. The term does not include any costs for dispute resolution; participation by the Government and Non-Federal Sponsor in the Design Coordination Team to discuss significant issues and actions; audits; betterments; or the Non-Federal Sponsor's cost of negotiating this Agreement. D. The term "HTRW" means hazardous, toxic, and radioactive wastes, which includes any material listed as a"hazardous substance" (42 U.S.C. 9601(14))regulated under the Comprehensive Environmental Response, Compensation, and Liability Act(hereinafter "CERCLA") (42 U.S.C. 9601-9675) and any other regulated material in accordance with applicable laws and regulations. E. The term "in-kind contributions" means those creditable materials or services provided by the Non-Federal Sponsor that are identified as being integral to Design of the Project by the Division Commander for South Atlantic Division (hereinafter the"Division Commander"). To be integral, the material or service must be part of the work that the Government would otherwise have undertaken for Design of the Project. In-kind contributions also include any investigations performed by the Non-Federal Sponsor to identify the existence and extent of any HTRW as required for Design of the Project. F. The term"betterment" means a difference in the Design of the Project that results from the application of standards that the Government determines exceed those that the Government would otherwise apply to Design of the Project. G. The term "fiscal year" means one year beginning on October 1st and ending on September 30th of the following year. ARTICLE II- OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. In accordance with Federal laws, regulations, and policies, the Government shall conduct the Design using funds appropriated by the Congress and funds provided by the Non- Federal Sponsor. In carrying out its obligations under this Agreement, the Non-Federal Sponsor shall comply with all requirements of applicable Federal laws and implementing regulations, including but not limited to, if applicable, Section 601 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant 2 4435 thereto; the Age Discrimination Act of 1975 (42 U.S.C. 6102); and the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Army Regulation 600-7 issued pursuant thereto. B. The Non-Federal Sponsor shall contribute 35 percent of design costs in accordance with the provisions of this paragraph. 1. The Non-Federal Sponsor shall be responsible for undertaking any investigations that the Government determines are required for Design of the Project to identify the existence and extent of any HTRW. 2. After considering the estimated amount of credit for in-kind contributions, if any, that will be afforded in accordance with paragraph C. of this Article, the Government shall provide the Non-Federal Sponsor with a written estimate of the amount of funds required from the Non-Federal Sponsor to meet its cost share for the initial fiscal year of the Design. No later than 60 calendar days after such notification, the Non-Federal Sponsor shall provide the full amount of such funds to the Government in accordance with Article IILC. 3. No later than August 1st prior to each subsequent fiscal year of the Design, the Government shall provide the Non-Federal Sponsor with a written estimate of the amount of funds required from the Non-Federal Sponsor during that fiscal year to meet its cost share. No later than September 1st prior to that fiscal year, the Non-Federal Sponsor shall provide the full amount of such required funds to the Government in accordance with Article IILC. C. The Government shall include in design costs and credit towards the Non-Federal Sponsor's share of such costs, the cost of in-kind contributions performed by the Non-Federal Sponsor that are determined by the Government to be integral to Design of the Project. Creditable in-kind contributions may include costs for engineering, design, and supervision and administration, but shall not include any costs associated with betterments. Such costs shall be subject to audit in accordance with Article VII to determine reasonableness, allocability, and allowability, and crediting shall be in accordance with the following procedures, requirements, and limitations: 1. As in-kind contributions are completed and no later than 60 calendar days after such completion, the Non-Federal Sponsor shall provide the Government appropriate documentation for the Government to determine the costs that are creditable to the Non-Federal Sponsor's share of design costs. Failure to provide such documentation in a timely manner may result in denial of credit. Appropriate documentation includes invoices and certification of specific payments to contractors, suppliers, and the Non-Federal Sponsor's employees. 2. No credit shall be afforded for the following: interest charges, or any adjustment to reflect changes in price levels between the time the in-kind contributions are completed and credit is afforded; the value of in-kind contributions obtained at no cost to the Non-Federal Sponsor; any items provided or performed prior to the effective date of this Agreement unless covered by an In-Kind Memorandum of Understanding; any items not identified as integral in the integral determination report; or costs that exceed the Government's estimate of the cost for such in-kind contributions. 3 4436 3. No reimbursement will be provided for any in-kind contributions that exceed the Non-Federal Sponsor's share of the design costs under this Agreement. D. To the extent practicable and in accordance with Federal laws, regulations, and policies, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on contract solicitations prior to the Government's issuance of such solicitations; proposed contract modifications, including change orders; and contract claims prior to resolution thereof. Ultimately, the contents of solicitations, award of contracts, execution of contract modifications, and resolution of contract claims shall be exclusively within the control of the Government. E. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations under this Agreement unless the Federal agency providing the funds verifies in writing that the funds are authorized to be used for the Project. Federal program funds are those funds provided by a Federal agency,plus any non-Federal contribution required as a matching share therefor. F. In addition to the ongoing, regular discussions between the parties regarding Design delivery, the Government and the Non-Federal Sponsor may establish a Design Coordination Team to discuss significant issues or actions. Neither the Government's nor the Non-Federal Sponsor's costs for participation on the Design Coordination Team shall be included in the design costs. The Non-Federal Sponsor's costs for participation on the Design Coordination Team shall be paid solely by the Non-Federal Sponsor without reimbursement or credit. G. The Non-Federal Sponsor may request in writing that the Government include betterments in the Design of the Project. Each request shall be subject to review and written approval by the Division Commander. If the Government agrees to such request, the Non- Federal Sponsor, in accordance with Article IILF., must provide funds to cover the difference in the costs for design of such work, as determined by the Government, in advance of the Government performing the work. H. If the Government and Non-Federal Sponsor enter into a Project Partnership Agreement for construction of the Project, the Government shall include the design costs in the calculation of construction costs for the Project in accordance with the terms and conditions of the Project Partnership Agreement. ARTICLE III -PROVISION OF NON-FEDERAL COST SHARE A. As of the effective date of this Agreement, design costs are projected to be $1,465,000, with the Government's share of such costs projected to be $952,000, and the Non- Federal Sponsor's share of such costs projected to be $513,000, which includes creditable in- kind contributions projected to be $0 and the amount of funds required to meet its cost share projected to be $513,000. Costs for betterments are projected to be $0. These amounts are estimates subject to adjustment by the Government, after consultation with the Non-Federal 4 4437 Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non-Federal Sponsor. B. The Government shall provide the Non-Federal Sponsor with monthly reports setting forth the estimated design costs and the Government's and Non-Federal Sponsor's estimated shares of such costs; costs incurred by the Government, using both Federal and Non-Federal Sponsor funds, to date; the amount of funds provided by the Non-Federal Sponsor to date; the estimated amount of any creditable in-kind contributions; and the estimated remaining cost of the Design. C. The Non-Federal Sponsor shall provide to the Government required funds by delivering a check payable to"FAO, USAED, Jacksonville (K3)" to the District Commander, or verifying to the satisfaction of the Government that the Non-Federal Sponsor has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non-Federal Sponsor, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. D. The Government shall draw from the funds provided by the Non-Federal Sponsor to cover the non-Federal share of the design costs as those costs are incurred. If the Government determines at any time that additional funds are needed from the Non-Federal Sponsor to cover the Non-Federal Sponsor's required share of the design costs, the Government shall provide the Non-Federal Sponsor with written notice of the amount of additional funds required. Within 60 calendar days of such notice, the Non-Federal Sponsor shall provide the Government with the full amount of such additional funds. E. Upon completion of the Design and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non-Federal Sponsor with the written results of such final accounting. Should the final accounting determine that additional funds are required from the Non-Federal Sponsor, the Non-Federal Sponsor, within 60 calendar days of written notice from the Government, shall provide the Government with the full amount of such additional funds by delivering a check payable to "FAO, USAED, Jacksonville (K3)" to the District Commander, or by providing an Electronic Funds Transfer of such funds in accordance with procedures established by the Government. Should the final accounting determine that the Non-Federal Sponsor has provided funds in excess of its required amount, the Government shall refund the excess amount, subject to the availability of funds or if requested by the Non-Federal Sponsor, apply the excess amount towards the non-Federal share of the cost of construction of the Project in the event a Project Partnership Agreement is executed for the Project. Such final accounting does not limit the Non-Federal Sponsor's responsibility to pay its share of design costs, including contract claims or any other liability that may become known after the final accounting. F. If the Government agrees to include betterments on the Non-Federal Sponsor's behalf, the Government shall provide written notice to the Non-Federal Sponsor of the amount of funds required to cover such costs. No later than 30 calendar days after receipt of such written notice, the Non-Federal Sponsor shall make the full amount of such required funds available to the Government through either payment method specified in Article III.E. If at any time the 5 4438 Government determines that additional funds are required to cover any such costs, as applicable, the Non-Federal Sponsor shall provide those funds within 30 calendar days from receipt of written notice from the Government. If the Government determines that funds provided by the Non-Federal Sponsor exceed the amount required for the Government to complete such work, the Government shall refund any remaining unobligated amount. ARTICLE IV - TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under this Agreement, the Government may suspend or terminate Design unless the Assistant Secretary of the Army (Civil Works) determines that continuation of the Design 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 Project. B. If the Government determines at any time that the Federal funds made available for the Design are not sufficient to complete such work, the Government shall so notify the Non- Federal Sponsor in writing within 30 calendar days, and upon exhaustion of such funds, the Government shall suspend Design until there are sufficient Federal funds appropriated by the Congress and funds provided by the Non-Federal Sponsor to allow Design to resume. C. In the event of termination, the parties shall conclude their activities relating to the Design and conduct an accounting in accordance with Article III.E. To provide for this eventuality, the Government may reserve a percentage of available funds as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. D. Any suspension or termination shall not relieve the parties of liability for any obligation incurred. Any delinquent payment owed by the Non-Federal Sponsor pursuant to this Agreement 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 V - HOLD AND SAVE The Non-Federal Sponsor shall hold and save the Government free from all damages arising from the Design, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE VI- DISPUTE RESOLUTION 6 4439 As a condition precedent to a parry bringing any suit for breach of this Agreement, that parry must first notify the other parry 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 parry acceptable to the parties. Each parry shall pay an equal share of any costs for the services provided by such a third parry as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VII- MAINTENANCE OF RECORDS AND AUDIT A. The parties shall develop procedures for the maintenance by the Non-Federal Sponsor of books, records, documents, or other evidence pertaining to costs and expenses for a minimum of three years after the final accounting. The Non-Federal Sponsor shall assure that such materials are reasonably available for examination, audit, or reproduction by the Government. B. The Government may conduct, or arrange for the conduct of, audits of the Design. Government audits shall be conducted in accordance with applicable Government cost principles and regulations. The Government's costs of audits for the Design shall not be included in design costs. C. To the extent permitted under applicable Federal laws and regulations, the Government shall allow the Non-Federal Sponsor to inspect books, records, documents, or other evidence pertaining to costs and expenses maintained by the Government, or at the Non-Federal Sponsor's request,provide to the Non-Federal Sponsor or independent auditors any such information necessary to enable an audit of the Non-Federal Sponsor's activities under this Agreement. The Non-Federal Sponsor shall pay the costs of non-Federal audits without reimbursement or credit by the Government. ARTICLE VIII - RELATIONSHIP OF PARTIES 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. Neither party shall provide, without the consent of the other parry, any contractor with a release that waives or purports to waive any rights a parry may have to seek relief or redress against that contractor. ARTICLE IX -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 mailed by registered or certified mail, with return receipt, as follows: 7 4440 If to the Non-Federal Sponsor: Chief Resilience Officer Monroe County 1100 Simonton Street, Suite 2-205 Key West, Florida 33040 If to the Government: District Commander U.S. Army Corps of Engineers, Jacksonville District P.O. Box 4970 Jacksonville, Florida 32232-0019 B. A parry may change the recipient or address to which such communications are to be directed by giving written notice to the other parry in the manner provided in this Article. ARTICLE X - CONFIDENTIALITY To the extent permitted by the laws governing each parry, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing parry. ARTICLE XI- 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 parry 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 District Commander. DEPARTMENT OF THE ARMY MONROE COUNTY, FLORIDA BY: BY: James L. Booth Craig Cates Colonel,U.S. Army Mayor District Commander DATE: DATE: 8 4441 CERTIFICATE OF AUTHORITY I, Bob Shillinger, do hereby certify that I am the principal legal officer for Monroe County, Florida,that Monroe County, Florida 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 Monroe County, Florida in connection with the Florida Keys, Monroe County, Coastal Storm Risk Management 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 Public Law 91-611, as amended (42 U.S.C. 1962d-5b), and that the person who executed this Agreement on behalf of Monroe County, Florida acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of 20 Bob Shillinger County Attorney Monroe County,Florida 4442 CERTIFICATION REGARDING LOBBYING The undersigned certifies,to the best of his or her knowledge and belief that: (1)No Federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned,to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract,the making of any Federal grant,the making of any Federal loan,the entering into of any cooperative agreement, and the extension, continuation,renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2)If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement,the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 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. 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