10/26/2023 Agreement GVS COURTq°
o: A Kevin Madok, CPA
-
�o ........ � Clerk of the Circuit Court& Comptroller Monroe County, Florida
�z cooN
DATE: November 13, 2023
TO: Rhonda Haag
Chief Resilience Officer
FROM: Liz Yongue, Deputy Clerk
SUBJECT: October 18, 2023 BOCC Meeting
The following items have been added to the record:
06 Design Agreement with the United States Army Corps of Engineers (USAGE),
for the design and permitting of the U.S. 1 shoreline revetments as part of the Florida Keys
Coastal Storm Risk Management Project, in the amount of$1,465,000.00, with the USACE
share of such costs projected to be $952,000.00, and the County's share projected to be
$513,000.00. The project was developed by USACE and approved by the U.S. Congress for
reducing coastal storm risk vulnerability in the Florida Keys.
Should you have any questions please feel free to contact me at(305) 292-3550.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY
500 Whitehead Street 3117 Overseas Highway 88770 Overseas Highway
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070
DESI,GN AGR ENTENT
BE"I"W"E'EN
T1,11i DEPAR.Tmiwr ot.,, THE ARMY
11141)
'MONROE COUNITY, F1,0KIDA
FOR
DESIGTN
F()R THE
171,01ZIDA KEYS, MON R(YL, C(,),1JN'I Y, F1,0111DA COAS'l-'AL STORM RISK,
fn
Q by
1.)etween the Depamment ofthe ,Arm�y (here inal"ter the "Covernment"), represented by We
District Commander I Jacksonville 'Disl6ct (hereimiftcrdw -and
monroe C.ourity, Florida {Ijereirmfter be "NonJldual Sponsor"),j, mpresentod by the Mayor.
w I,rN E S SE'"11 1, TTIAT
WHEREAS, F'edcral hmdR wom provided in the En erg y, and Water Developnientand
Watecl. Agencies Appropriatiow Act, 20,23, 1"LlbhC Law 117-328, to, initiate de�ign of"t1w
Hori(hi Kcys, Momme Clunty, FWHdn Cuasital Ston-nitisk, Nla,nagenwnt Prqjed,
W1 IEREAS, SmAn 103 of1he Water Rem�nwces Devolopment Act o1' 1986,as aw,unded
(13 GS.C. 221 Y, spedUes the coskshYng requirements a�pjj[icable to constrtiction ol�'dlc
1AqPcq and Section 105(c) of the Water itesuluces Devek),pniewn Avt o1' 1986 l,333 U.&C
2215(Q provides that die c0s0,-0,rchdgn WE be shared iii the sarne pmentagQs,as
COrISITLIC6011,of die, Prqject'
WHER[HAS, based on the ProiiecC's OnITY PurPse Of Mistal stonn risk.rnanagenient,
the panks agree that the Non-l`ederal Sponsor AaH com6burle 35 percent ol,"the design Costs
under this tkgreemen; rural
VO 11TREASahe (Jovernnivntand 14cmi-Federal #011S(yr have the fid! IaUthorily and
cupabihly to Iwrl'criv in acco,rda,nce with the wmi.ts oft:[id.s- AgrcQn1C11t.
19)W, THEREFOKE,Me pales agme as RAWK
ARTICLE I - DEFINITIONS
Au The tenn "PnAVCV mmans dry 11(jodproolIng 53 critical infrustructure buddings,
nonstructurat nwasures to 4,698 resideatial and 1,052 non.residential structures, and stabiWatimi
nr U.S, Route 1, (Overseas Highwayl as gmwraily descHbed, in div Florida Kcys Coastal Stumm
Rik Wagement Peadbility StUdy, MUnrcie Chunty, FWrida, Final Integrated Feasibility Report
ancl, [�,nvironmetlul hijact data en dMcd JWy 2091 and approved by the C'hief of'Engineer�
nn Sepember 24, 2021 .
B. The term"Design"means perform detailed pre-construction engineering and design,
up through preparation of plans and specifications for the initial construction contract only,
which is 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 1'and ending on
September 30''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
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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 III.C.
3. No later than August 0 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 I"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 III.C.
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.
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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 III.F.,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
Sponsor, and are not to be construed as the total financial responsibilities of the Government and
the Non-Federal Sponsor.
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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(M)" 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 (M)"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
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
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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
As a condition precedent to a party bringing any suit for breach of this Agreement,that
party must first notify the other party in writing of the nature of the purported breach and seek in
good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute
through negotiation,they may agree to a mutually acceptable method of non-binding alternative
dispute resolution with a qualified third party acceptable to the parties. Each party shall pay an
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equal share of any costs for the services provided by such a third party as such costs are incurred.
The existence of a dispute shall not excuse the parties from performance pursuant to this
Agreement.
ARTICLE 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 party, any contractor with a release that waives or purports to waive any
rights a party 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:
If to the Non-Federal Sponsor:
Chief Resilience Officer
Monroe County
1100 Simonton Street, Suite 2-205
Key West, Florida 33040
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•
If to the Government:
District Commander
U.S.Army Corps of Engineers,Jacksonville District
P.O.Box 4970
Jacksonville,Florida 32232-0019
B. A party may change the recipient or address to which such communications are to be
directed by giving written notice to the other party in the manner provided in this Article.
ARTICLE X-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 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 party 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
BOOTH.JAME Digitally signed by
BOOTHJAMES.LAFAYET
S.LAFAYETTE. TE.1186925935 ',� '"tiGl�t
Date:2023.10.26 i
BY: 1186925935 15:59:58-04'00' BY: � m. ' r r
James L.Booth Craig (rates ff. ; '-
Colonel,U.S.Army Mayor ��; �`
District Commander ' '``
%6.... —.r: .KFY►IN MADOK,CLERK
26OCT23 • P4"
DATE: DATE: 10/25/2023 .� -.-1' ' DEPU CLERK
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�., Approved as to form and legal sufficiency:
c L.:,{,-.-. Monroe County Attorney's Office 10-25-2023
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8
CERTIFICATE OF AUTHORITY
1,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
25th day of October 2023 .
Shillinger,
Digkallysgned by Hobert&Shillinp,
Robert Bo .l��Il�l lger oN:cn=l—C A.tyAftger,o,Manm,County BOCC,
u=Monroe Cnunry Attamey,email�s hill!ngery
-bob®monroecuunty-Fl.9m,c=VS
.ate:2023.10.2515:48:35-"00'
Bob Shillinger
County Attorney
Monroe County, Florida
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 Ianguage 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.
.All
Craig at s
Mayor
Monroe County,Florida
10/25/2023
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EPUTY C ERK
rysv
Approved as to form and legal sufficiency:
Monroe County Attorney's Office 10-25-2023