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01/25/2024 Agreement GVS COURTq° o: A Kevin Madok, CPA - �o ........ � Clerk of the Circuit Court& Comptroller Monroe County, Florida �z cooN DATE: January 29, 2024 TO: Rhonda Haag Chief Resilience Officer FROM: Liz Yongue, Deputy Clerk SUBJECT: October 18, 2023 BOCC Meeting The following item has been executed and added to the record: S4 Revenue Agreement with the Florida Department of Transportation, in the amount of$513,000.00, to fund the County's 35% share of the projected $1,465,000 cost of 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. 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 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT FPN: 454029-1-38-01 Fund:DDR,District Dedicated Revenue FLAIR Category: 088716 Org Code: 55064020638 FLAIR Obj: 139900 FPN:N/A Fund:N/A FLAIR Category:N/A Org Code:N/A FLAIR Obj:N/A County No: 90 Contract No: ASY74 Vendor No: F596000749114 This Project Funding Agreement("Agreement") is entered into this 25 day of January 2024 (the "Effective Date")between the State of Florida Department of Transportation, an agency of the State of the Florida (the"Department")and Monroe County, a governmental entity existing under the laws of the State of Florida(the "Agency") (each a"Party" and collectively, the "Parties"). The Parties agree as follows: 1. Authority. Section 339.12, Florida Statutes, authorizes the Department and other governmental entities in the State of Florida to enter into agreements by which the governmental entity agrees to perform a highway project or project phase in the Department's adopted work program that is not revenue producing and the Department agrees to reimburse the other governmental entity for the costs of the project. Section 339.12(4), Florida Statutes, also authorizes the Department and other governmental entities in the State of Florida to enter into agreements by which the governmental entity agrees to perform a project or project phase not included in the adopted work program, but which is a high priority of the governmental entity, reimbursement for the costs of which may be made by the Department from funds appropriated by the Legislature pursuant to section 339.135(5), Florida Statutes. The governing body of the Agency has authorized the Agency to perform the project or project phase identified in this Agreement. 2. Purpose of Agreement. The purpose of this Agreement is to provide the terms and conditions under which the Agency will perform the "Project." The Project is more particularly described in Exhibit A to this Agreement. 3. The Project. The Agency agrees to perform and complete the Project in a satisfactory, timely and proper manner in accordance with all applicable laws and the terms and conditions of this Agreement. Exhibit A describes the scope of work to be performed by the Agency and provides a proposed schedule for the Project. The Project scope in Exhibit A identifies the ultimate project deliverables. Deliverables for requisition, payment and invoice purposes will be the incremental progress made toward completion of Project scope elements. All Project activities must be consistent with the scope described in Exhibit A. An amendment to this Agreement is required for any proposed change in the scope of work. Execution of this Agreement by both Parties shall be deemed a Notice to Proceed to the Agency for the design phase or other non-construction phases of the Project. 4. Term of Agreement. The term of this Agreement and the period for performance of the Project under this Agreement shall be for two (2) years from the Effective Date (the "Completion Date"). If the Agency does not complete the Project on or before the Completion Date, this Agreement will expire, unless the Completion Date is extended by an executed amendment to this Agreement. Expiration of this Agreement will be considered termination of the Project. Page 1 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT 5. Project Costs. a. The estimated cost of the Project is $ 1,465,000 (the "Project Estimate"), and is allocated among the Project activities in the Project Budget in Exhibit B. An amendment to this Agreement is required for any re- budgeting of Project funds provided under this Agreement. b. The total Department funding available for the Project is Five Hundred and Thirteen Thousand Dollars ($ 513,000.00), as more fully described in Exhibit B. The Department Funding may be increased or reduced following receipt of the actual bid amounts for the Project by execution of an amendment to this Agreement. The Agency agrees to bear all costs it incurs to complete the Project in excess of the Department Funding. C. Project costs incurred by the Agency prior to the Effective Date or after the Completion Date or other termination of this Agreement will not be eligible for reimbursement by the Department. If the Project is not included in the first year of the Department's adopted work program for the state fiscal year that includes the Effective Date, it is understood that Department participation in eligible Project costs is subject to: i. Legislative approval of the Department's appropriation request in the work program year that the Project is scheduled to be committed; ii. Availability of funds as stated in paragraphs 7.g. and Th. of this Agreement; and iii. Approval of all plans, specifications, contracts or other obligating documents and all other terms of this Agreement. 6. Requests for Reimbursement. a. Requests for reimbursement by the Agency shall include an invoice, progress report and supporting documentation for the period of work being billed that are acceptable to the Department. All costs invoiced shall be supported by properly executed invoices, contracts or vouchers evidencing in proper detail the nature and propriety of charges as described in Exhibit C, Contract Payment Requirements. Requests for reimbursement and supporting documentation shall be submitted by the Agency in detail sufficient for a proper pre-audit and post-audit based on the quantifiable, measurable and verifiable units of deliverables identified in Exhibit A. Supporting documentation must substantiate the amount of progress made on the Project in a quantifiable, measurable, and verifiable manner, and provide evidence that the payment requested is commensurate with the accomplished incremental progress and costs incurred by the Agency. Supporting documentation must also establish to the Department Project Manager's satisfaction that deliverables were received and accepted in writing by the Agency and must also establish that the required minimum level of service to be performed and criteria for evaluating successful completion have been met. The Agency shall submit requests for reimbursement to the Department no less than once every 365 days. If the Agency fails to submit quarterly invoices to the Department, and such failure results in the loss of state appropriation authority, the Agency will be solely responsible to provide all funds necessary to complete the Project and the Department will not be obligated to provide any additional funding for the Project. Page 2 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT b. The Agency must submit the final invoice on the Project to the Department within 120 days of the Completion Date or completion of the Project, if earlier. Invoices submitted after the 120-day time period may not be paid. C. The Project is not included in the first year of the Department's adopted work program for the state fiscal year that includes the Effective Date. The Department will only reimburse the Agency in accordance with section 339.12, Florida Statutes. The Agency will not invoice the Department for Project costs until July 1 of the state fiscal year(s) the Project is scheduled in the Department's work program. After receipt of properly documented invoices and supporting documentation as otherwise required in this Agreement,payment(s)will be made to the Agency to reimburse eligible Project costs in annual amounts equal to the amounts programmed in the Department's adopted work program in each state fiscal year, up to the amount of eligible Project costs incurred after the Effective Date. 7. Payment. a. Subject to other provisions of this Agreement, the Department will reimburse the Agency for eligible Project costs, up to the amount of the Department Funding. Notwithstanding any other provision of this Agreement, the Department may elect by written notice not to make a payment if. i. The Department determines that the Agency has misrepresented a material fact in any documents submitted to obtain the Department Funding under this Agreement, or any document or data furnished pursuant to this Agreement; ii. There is any pending litigation with respect to the performance by the Agency of any of its duties or obligations which may jeopardize or adversely affect the Project, this Agreement or payments for the Project; iii. The Agency takes any action on the Project which, under this Agreement, requires the approval of the Department or makes a related expenditure or incurs related obligations without Department approval when required; iv. There has been any violation of the conflict of interest provisions contained in this Agreement; or V. The Department determines the Agency is otherwise in default under any provisions of this Agreement. b. Payment shall be made only after receipt and approval of goods and services. C. If the Department determines that the performance of the Agency is unsatisfactory,the Department shall notify the Agency of the deficiency to be corrected, which correction shall be made within a reasonable time frame to be specified by the Department. The Agency's failure to timely correct any deficiencies that render performance unsatisfactory shall be grounds for the Department to withhold payment under this Agreement. In addition, the Department reserves the right to pursue all remedies available at law, including but not limited to the right to pursue a claim for reimbursement of any or all payments made under this Agreement. Page 3 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT d. Agencies providing goods and services to the Department should be aware of the following time frames. Inspection and approval of goods or services shall take no longer than 20 days from the Department's receipt of the invoice. The Department has 20 days to deliver a request for payment(voucher) to the Department of Financial Services. The 20 days are measured from the latter of the date the invoice is received or the goods or services are received, inspected, and approved. If a payment is not available within 40 days, a separate interest penalty at a rate as established pursuant to Section 55.03(1),F.S.,will be due and payable, in addition to the invoice amount,to the Agency. Interest penalties of less than one(1) dollar will not be enforced unless the Agency requests payment. Invoices that have to be returned to an Agency because of Agency preparation errors will result in a delay in the payment. The invoice payment requirements do not start until a properly completed invoice is provided to the Department. e. A Vendor Ombudsman has been established within the Department of Financial Services. The duties of this individual include acting as an advocate for Agencies who may be experiencing problems in obtaining timely payment(s) from a state agency. The Vendor Ombudsman may be contacted at(850) 413-5516. L If, after Project completion, any claim is made by the Department resulting from an audit or for work or services performed pursuant to this Agreement, the Department may offset such amount from payments due for work or services done under any agreement which it has with the Agency owing such amount if, upon demand, payment of the amount is not made within 60 days to the Department. Offsetting any amount pursuant to this paragraph shall not be considered a breach of contract by the Department. g. The Department's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. h. In the event this Agreement is in excess of$25,000 and has a term for a period of more than one year, the provisions of Section 339.135(6)(a), Florida Statutes, are hereby incorporated: "The Department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year.Any contract,verbal or written,made in violation of this subsection is null and void, and no money may be paid on such contract. The Department shall require a statement from the comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding 1 year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years, and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of$25,000 and which have a term for a period of more than 1 year." 8. Records. a. The Agency shall establish for the Project, consistent with the Department's program guidelines/procedures, separate accounts to be maintained within its existing accounting system or separate independent accounts ("Project Accounts"). The Agency shall charge to the Project Accounts all eligible costs of the Project except costs agreed to be borne by the Agency or its contractors and subcontractors. Costs in excess Page 4 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT of the programmed Department funding or attributable to actions which have not received the required approval of the Department shall not be considered eligible costs. All costs charged to the Project, including any approved services contributed by the Agency or others, shall be supported by properly executed payrolls, time records, invoices, contracts or vouchers evidencing in proper detail the nature and propriety of the charges, as described in Exhibit C, Contract Payment Requirements. b. Records of costs incurred under the terms of this Agreement shall be maintained and made available upon request to the Department at all times during the period of this Agreement and for five years after final payment is made. Copies of these documents and records shall be furnished to the Department upon request. Records of costs incurred include the Agency's general accounting records and the project records, together with supporting documents and records, of the contractor and all subcontractors performing work on the project, and all other records of the Agency's contractors and subcontractors considered necessary by the Department for a proper audit of costs. If any litigation, claim, or audit is started before the expiration of the required retention period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. C. The Agency shall permit, and shall require its contractors to permit, the Department's authorized representatives to access the Project site; inspect all work, materials,payrolls, and records; and to audit the books, records and accounts pertaining to the financing and development of the Project. d. For any project requiring additional right-of-way, the Agency must submit to the Department an annual report of its real property acquisition and relocation assistance activities on the project. Activities shall be reported on a federal fiscal year basis, from October 1 through September 30. The report must be prepared using the format prescribed in 49 C.F.R.Part 24,Appendix B, and be submitted to the Department no later than October 15 of each year. e. The Agency shall submit to the Department such data, reports, records, contracts, and other documents relating to the Project as the Department or FHWA may require, including those documents listed in Exhibit J to this Agreement. The Department may, at its discretion, require a progress report on a monthly basis. The progress report will include details of the progress of the Project towards meeting the requirements of the Agreement. 9. Design Standards and Department Plans Review. The Project shall be designed in accordance with the requirements of all applicable laws, governmental rules and regulations and federal design standards for the type of construction contemplated by the Design Agreement between the Department of the Army and Monroe County for Design for the Florida Keys, Monroe County Coastal Storm Risk Management Project attached hereto as Exhibit K. The Department's Plans Review Process is set forth in Exhibit E. 10. Termination and Suspension. a. Generally. If. (i)the Agency abandons the Project; (ii)the Agency fails to comply with applicable law or the terms of this Agreement; or (iii) for any other reason, the commencement, prosecution, or timely completion of the Project by the Agency is rendered improbable,infeasible, impossible,or illegal,the Department may, by written notice to the Agency, suspend any or all of its obligations under this Agreement until such time as the event or condition resulting in such suspension has ceased or been corrected, or the Department may terminate any or all of its obligations under this Agreement. Page 5 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT b. Actions Upon Termination or Suspension. Upon receipt of any final termination or suspension notice from the Department, the Agency shall proceed promptly to carry out the actions required in such notice, which may include any or all of the following: (1) necessary action to terminate or suspend, as the case may be, Project activities and contracts and such other action as may be required or desirable to keep to the minimum the costs upon the basis of which the financing is to be computed; (2)furnish a statement of the Project activities and contracts, and other undertakings the cost of which are otherwise includable as Project costs; and, (3)remit to the Department such portion of the financing and any advance payment previously received as is determined by the Department to be due under the provisions of the Agreement. The termination or suspension shall be carried out in conformity with the latest schedule,plan, and budget as approved by the Department or upon the basis of terms and conditions imposed by the Department upon the failure of the Agency to furnish the schedule, plan, and budget within a reasonable time. The approval of a remittance by the Agency shall not constitute a waiver of any claim which the Department may otherwise have arising out of this Agreement. 11. Indemnification and Insurance. a. Indemnification. To the extent permitted by law and as limited by and pursuant to the provisions of Section 768.28,Florida Statutes, the Agency shall indemnify and hold harmless the Department, including the Department's officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Agency and persons employed or utilized by the Agency in the performance of this Agreement. This indemnification shall survive the termination of this Agreement. Nothing contained in this paragraph is intended to nor shall it constitute a waiver of the State of Florida and the Agency's sovereign immunity. b. Workers' Compensation. The Agency shall provide Workers' Compensation Insurance in accordance with Florida's Workers' Compensation law for all employees. If contracting for any of the work, the Agency shall ensure that its contractors have Workers' Compensation Insurance for their employees in accordance with Florida's Workers' Compensation law. If using "leased employees" or employees obtained through professional employer organizations ("PEO's"), the Agency shall ensure that such employees are covered by Workers' Compensation insurance through the PEO's or other leasing entities. If the Agency enters into any equipment rental agreements that include operators or other personnel who are employees of independent contractors, sole proprietorships or partners, those agreements must provide that these individuals must be covered by insurance required under Florida's Workers' Compensation law. 12. Legal Requirements. a. General. The Agency acknowledges that legal requirements are subject to change and agrees that the most recent requirements shall govern its obligations under this Agreement at all times. If the Agency enters into direct contracts with architects, engineers and surveyors for delivery of design services for the Project, the Page 6 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Agency shall comply and require its contractors and subcontractors to comply with all terms and conditions of this Agreement and all federal, state, and local laws and regulations applicable to this Project. Execution of this Agreement constitutes a certification that the Agency is in compliance with, and will require its contractors and subcontractors to comply with, all requirements imposed by applicable federal, state, and local laws and regulations. b. Equal Opportunity and Non-Discrimination.In connection with the carrying out of the Project, the Agency shall not discriminate against any employee or applicant for employment because of race, age, creed, color, sex, or national origin and will comply with all statutes and implementing regulations relating to nondiscrimination. The Equal Opportunity Clause contained in 41 CFR section 60-1.4 is included in this Agreement by reference. Execution of this Agreement constitutes a certification that the Agency will comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et seq.), and the regulations of the Federal Department of Transportation issued thereunder. Execution of this Agreement constitutes a certification that the Agency will comply with all the requirements imposed by Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601, et seq.), which among other things,prohibits discrimination in employment on the basis of race, color, national origin, creed, sex, and age, and with all the requirements imposed by the ADA (42 U.S.C. 12102, et seq.), and the regulations of the federal government issued thereunder. C. Environmental Regulations. Execution of this Agreement constitutes a certification by the Agency that the Project will be carried out in accordance with all applicable environmental regulations including the securing of any applicable permits. The Agency will be solely responsible for any liability in the event of non- compliance with applicable environmental regulations, including the securing of any applicable permits, and will reimburse the Department for any loss incurred in connection therewith. Without limiting the generality of the foregoing, in connection with the Project, the Agency will not use any facilities that are in violation of the Clean Air Act or the Federal Water Pollution Control Act,will report the use of facilities placed on or likely to be placed on the U.S. EPA "List of Violating Facilities", will report the use of prohibited facilities to the Regional U.S. EPA Office, and shall comply with Section 306 of the Clean Air Act, as amended, 42 U.S.C. § 7606, and other requirements of the Clean Air Act, as amended, 42 U.S.C. §§ 7401 - 7671q, and the requirements of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 — 1377. d. Compliance with Public Records Laws. The Agency agrees to comply with all provisions provided in Chapter 119 Florida Statutes. If the Agency receives a public records request concerning its work undertaken pursuant to this Agreement, the Agency must take appropriate action as required by Chapter 119, Florida Statutes. The Department reserves the right to unilaterally cancel this Agreement for refusal by the Agency, contractor, sub-contractor, or materials vendor to comply with the provisions of Chapter 119, Florida Statutes. e. Integrity Certification. By signing this Agreement, the Agency certifies that neither it nor its participants is presently debarred, suspended,proposed for debarment,declared ineligible,or voluntarily excluded from participating in this Agreement by any federal department or agency. This certification is a material representation of fact upon which the Department is relying in entering this Agreement. If it is later determined that the Agency knowingly rendered an erroneous certification, in addition to other remedies available to the federal government, the department or agency with which this transaction originated may pursue available remedies,including suspension and/or debarment. The Agency shall provide to the Department immediate written Page 7 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT notice if at any time the Agency learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. f. Ownership of Data and Creative Material. The ownership of material, discoveries, inventions and results developed, produced, or discovered by this Agreement are governed by the terms of 2 CFR, Section 200.315, Intangible Property. g. Certification of Restrictions on Lobbying Disclosure. The Agency certifies to the best of its knowledge and belief that no federally-appropriated funds have been paid, or will be paid by or on behalf of the Agency, to any person for influencing or attempting to influence any officer or employee of any federal 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. If any funds other than federally-appropriated funds have been paid by the Agency to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. h. Interest of Members of, or Delegates to, Congress or Legislature. No member or delegate to the Congress of the United States, or the State of Florida legislature, shall be admitted to any share or part of the Agreement or any benefit arising therefrom. i. Code of Conduct. The Agency has established, and will maintain, a written code or standard of conduct applicable to its officers, employees, board members or agents, and those individuals' relatives, that prohibits their involvement in the selection,award,or administration of any contract in connection with the Project if they have a present or potential financial or other significant interest therein and prohibits the acceptance of any gratuity, favor, or other thing of monetary value from any person interested or involved in the performance of work on the Project. j. Unauthorized Aliens. The Department shall consider the employment by the Agency of unauthorized aliens a violation of Section 274A(e) of the Immigration and Nationality Act. If the Agency knowingly employs unauthorized aliens, such violation will be cause for unilateral cancellation of this Agreement. 13. Miscellaneous Provisions. a. Prohibited Interests. The Agency shall not enter into a contract or arrangement in connection with the Project or any property included or planned to be included in the Project, with any officer, director or employee of the Agency, or any business entity of which the officer, director or employee or the officer's, director's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer, Page 8 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT director or employee or the officer's, director's or employee's spouse or child, or any combination of them, has a material interest. i. "Material Interest" means direct or indirect ownership of more than 5% of the total assets or capital stock of any business entity. ii. The Agency shall not enter into any contract or arrangement in connection with the Project or any property included or planned to be included in the Project, with any person or entity who was represented before the Agency by any person who at any time during the immediately preceding two (2)years was an officer, director or employee of the Agency. iii. The provisions of this subsection shall not be applicable to any agreement between the Agency and its fiscal depositories, any agreement for utility services the rates for which are fixed or controlled by the government, or any agreement between the Agency and an agency of state government. b. Department Not Obligated to Third Parties. The Department shall not be obligated or liable under this Agreement to any parry other than the Agency. It is specifically agreed between the Parties executing this Agreement that it is not intended by any of the provisions of any part of this Agreement to create in the public or any member thereof, a third party beneficiary under this Agreement, or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement. C. Relationship of Parties. The Agency, its employees, contractors, subcontractors, consultants, and subconsultants are not agents of the Department as a result of this Agreement. d. When Rights and Remedies Not Waived. In no event shall the making by the Department of any payment to the Agency constitute or be construed as a waiver by the Department of any breach of covenant or any default which may then exist, on the part of the Agency, and the making of such payment by the Department while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the Department with respect to such breach or default. e. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. f. Sovereign Immunity.Nothing in this Agreement shall constitute a waiver by either parry of its sovereign immunity for any damages claimed by third parties. g. Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall be construed and enforced as if such invalid or unenforceable provision had not been contained in this Agreement, unless the omission of the invalid or unenforceable provision would cause this Agreement to violate any applicable law or fail its fundamental purpose. h. Bonus or Commission. By execution of the Agreement the Agency represents that it has not paid and, also, agrees not to pay, any bonus or commission for the purpose of obtaining an approval of the financing hereunder. Page 9 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT i. Notices. Any notice, demand, or request which is required to be given under this Agreement in writing shall be delivered to the following addresses: If to the Department: Director of Transportation Development Florida Department of Transportation- District Six 1000 N.W. 111th Avenue Miami, Florida 33172 daniel,i leC&dot,state,fl,us WITH A COPY TO: District Environmental Manager Planning and Environmental Management Office Florida Department of Transportation, District Six 1000 NW 11 Ith Avenue, Room 6109 Miami, Florida 33172 steven.'a�l mesL&dot.state.fl.us If to Agency: Monroe County Administrator 1100 Simonton St. Key West, FL 33040 Gastesi-romanC&,monroecounty-fl, WITH A COPY TO: Monroe County Attorney's Office 1111 12th Street# 408 Key West, FL 33040 Hall-cynthia@monroecounty-fl.gov j. Agreement Format. All words used in this Agreement in the singular form shall extend to and include the plural. All words used in the plural form shall extend to and include the singular. All words used in any gender shall extend to and include all genders. k. JURY TRIAL WAIVER. THE AGENCY AND THE DEPARTMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. 1. Limitation on Liability.Notwithstanding anything to the contrary in this Agreement, in no event shall the Agency or the Department be liable to each other for any indirect, punitive, special, or consequential damages (including, but not limited to, loss of profits, interest, earnings, or use) whether arising in contract, tort Page 10 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT or otherwise, even if the party has been advised that such damages are possible. The limitation of remedies provided in the preceding sentence shall survive the expiration or termination of this Agreement. In. Execution of Agreement. This Agreement may be simultaneously executed in a minimum of two counterparts, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one in the same instrument. n. State Lobbying.No funds received pursuant to this Agreement may be expended for lobbying the Legislature, the judicial branch, or a state agency. o. Inspector General Cooperation. The Parties agree to comply with Section 20.055(5), Florida Statutes, and to incorporate in all subcontracts the obligation to comply with Section 20.055(5), Florida Statutes. P. Agreement not Assignable. The Agency may not assign any of its rights or obligations under this Agreement. q. Amendments. This Agreement may not be amended, except by a writing signed by both Parties. r. Exhibits. The following Exhibits are attached and incorporated into this Agreement: ® Exhibit A: Project Description ® Exhibit B: Method of Payment and Project Budget ® Exhibit C: Contract Payment Requirements ❑ Exhibit D: Alternative Advance Payment Financial Provisions—N/A ® Exhibit E: Notice to Proceed and Plans Review Process ❑ Exhibit F: Notice of Completion—N/A ❑ Exhibit G: Engineer's Certification of Compliance—N/A ❑ Exhibit H: Tangible Personal Property—N/A ❑ Exhibit I: FHWA Form 1273 —N/A ❑ Exhibit J: Title VI Assurance—N/A ® Exhibit K: 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 [signatures on following page] Page 11 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT IN WITNESS WHEREOF,the parties have executed this Agreement effective as of the date signed by the last party executing and inserted in the opening paragraph by the Department. STATE OF FLORIDA, MONROE COUNTY,FLORIDA DEPARTMENT OF TRANSPORTATION ' p—DocuSigned by: By: VtUA it,(, tott,SictS By: • • Daniel Iglesias,n r 6A23331 EC56748A... Craig fates,Mayor Director of Transportation Development Florida Department of Transportation-District 6 1000 N.W. 111th Avenue Miami,Florida 33172 f T..KEVIN MADOK,CLERK Ph: 305-470-5464 email: daniel.iglesias@dot.state.fl.us fit { - Ai,. DEPUTY C ERK Legal Review(Department) Legal Review -Monroe County Attorney's Office —DocuSigned by: Ce14;t.fide ��U�► fi 1Ub �12CAFOE181D 4BC... 10-16-2023rri C).C) uta M,. r . -n CD Page 12 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT EXHIBIT A PROJECT DESCRIPTION A. Project Description (description of Agency's project to provide context, description of project components funded via this Agreement(if not the entire project)): The preparation of design plans and specifications for construction of shoreline stabilization rock revetments along US Route 1 (Overseas Highway), as contemplated by the 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 attached hereto as Exhibit K. The Project is 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, incorporated herein by reference. There are six (6) sites proposed for design; West Summerland Key, approximate MM 34; Bahia Honda Key, approximate MM 37; Long Key, approximate MM 67; Fiesta Key West, approximate MM 70; Fiesta Key East, approximate MM 70.3; and Indian Key Fill, approximate MM 79.5. FDOT is committed to fund the design and specifications for improvements at four(4) sites within the FDOT right-of-way along US-1: Indian Key Fill, Fiesta Key West, West Summerland Key, and Bahia Honda. This Agreement does provide funding for the design and specifications for improvements at either the Fiesta Key East or Long Key sites. B. Project Location (limits, city, county): ® Illustration/graphic/map of project area provided below. Page 13 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Florida Keys Coastal Storm Risk Management Shoreline Stabilization Sites / / / r., / r , J � / 1 / i 1 f, � 1 it i � / f i i i 1 i / / , 1 , r i i w i 1, / y / / r i � l C. Project Scope (allowable costs: describe project components, improvement type/service type, approximate timeline,project schedule,project size): The scope of work includes preparation of design plans and specifications for construction for shoreline stabilization at six (6) different locations along US-1 in the Florida Keys, Monroe County, Florida. The project components consist of rock revetment structures. The rock revetments will be designed to minimize future erosion and washouts of the coastline and/or further erosion of US-1. The term of this Agreement and the period for performance of the Project under this Agreement shall be for two (2)years from the Effective Date. E. Department Project Manager. The Department's Project Manager for the Project, and contact information, is: Steven Craig James District Environmental Manager Planning and Environmental Management Office Florida Department of Transportation, District Six 1000 NW 11 Ith Avenue, Room 6109 Miami, Florida 33172 Page 14 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Office (305)470-5221 Mobile (305) 632-7391 steven,j ames(c�dot,state,fl,us Page 15 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT EXHIBIT B METHOD OF PAYMENT and PROJECT BUDGET FDOT is to reimburse Monroe County on a per site(location)basis. Invoices are not to include more than one site per invoice. After receipt and approval of submittals, lump sum payments will be made at 30%, 60%, 90%, and Final Design submittals or other interim intervals to be agreed to by the Parties with a minimum of 50% and 100% design plan submittals. The estimated cost of the Project is $ 1,465,000. The total Department participation (35%) shall not exceed $513,000. The Department is only participating in funding a portion of the Project, see Exhibit A. Page 16 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT EXHIBIT C CONTRACT PAYMENT REQUIREMENTS Florida Department of Financial Services,Reference Guide for State Expenditures Cost Reimbursement Contracts Invoices for cost reimbursement contracts must be supported by an itemized listing of expenditures by category (salary, travel, expenses, etc.). Supporting documentation shall be submitted for each amount for which reimbursement is being claimed indicating that the item has been paid. Documentation for each amount for which reimbursement is being claimed must indicate that the item has been paid. Check numbers may be provided in lieu of copies of actual checks. Each piece of documentation should clearly reflect the dates of service. Only expenditures for categories in the approved agreement budget may be reimbursed. These expenditures must be allowable (pursuant to law) and directly related to the services being provided. Listed below are types and examples of supporting documentation for cost reimbursement agreements: (1) Salaries: A payroll register or similar documentation should be submitted. The payroll register should show gross salary charges, fringe benefits, other deductions and net pay. If an individual for whom reimbursement is being claimed is paid by the hour, a document reflecting the hours worked times the rate of pay will be acceptable. (2)Fringe Benefits: Fringe Benefits should be supported by invoices showing the amount paid on behalf of the employee(e.g.,insurance premiums paid). If the contract specifically states that fringe benefits will be based on a specified percentage rather than the actual cost of fringe benefits, then the calculation for the fringe benefits amount must be shown. Exception: Governmental entities are not required to provide check numbers or copies of checks for fringe benefits. (3) Travel: Reimbursement for travel must be in accordance with Section 112.061,Florida Statutes,which includes submission of the claim on the approved State travel voucher or electronic means. (4) Other direct costs: Reimbursement will be made based on paid invoices/receipts. If nonexpendable property is purchased using State funds, the contract should include a provision for the transfer of the property to the State when services are terminated. Documentation must be provided to show compliance with Department of Management Services Rule 60A-1.017, Florida Administrative Code, regarding the requirements for contracts which include services and that provide for the contractor to purchase tangible personal property as defined in Section 273.02, Florida Statutes, for subsequent transfer to the State. (5)In-house charges:Charges which may be of an internal nature (e.g., postage, copies, etc.) may be reimbursed on a usage log which shows the units times the rate being charged. The rates must be reasonable. (6)Indirect costs:If the contract specifies that indirect costs will be paid based on a specified rate,then the calculation should be shown. Page 17 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Contracts between state agencies, and or contracts between universities may submit alternative documentation to substantiate the reimbursement request that may be in the form of FLAIR reports or other detailed reports. The Florida Department of Financial Services, online Reference Guide for State Expenditures can be found at this web address htti)://www,fldfs.com/aadir/reference guid�. Page 18 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Page 19 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT EXHIBIT E NOTICE TO PROCEED AND PLANS REVIEW PROCESS Execution of this Agreement by both Parties shall be deemed a Notice to Proceed. Because parts of the Project will be located on, under or over Department-owned right-of-way, the Department shall review the Project's design plans and specifications for construction at Indian Key Fill, Fiesta Key West, West Summerland Key, and Bahia Honda for compliance with all applicable standards of the Department. In its sole discretion, the Department may reject design plans which it determines do not meet Department standards. The design plans review process for each phase of the plans submitted to the Department shall be as follows. The Agency shall be responsible for having the plans submitted to the Department for review at 30%, 60%, 90%, and 100%phases or other interim intervals to be agreed to by the Parties with a minimum of 50% and 100% design plan submittals. The Department shall have thirty (30) calendar days to review the plans for compliance with Department standards and to submit its comments and recommendations to the Department of the Army (See Design Agreement between the Department of the Army andMonroe County, Florida for Design for the Florida Keys, Monroe County, Coastal Storm Risk Management Project attached hereto as Exhibit K). The Agency shall coordinate with the Department of the Army to have all comments and recommendations addressed and resolved. Any submittal that does not comply with applicable Department standards, as determined by the Department, must be resolved to the Department's satisfaction. Any failure by the Department of the Army to resolve a determination by the Department that the plans do not meet Department standards to the Department's satisfaction, shall be sufficient cause for nonpayment by the Department under this Agreement. The Design will be completed within two years of the Effective date of this Agreement, unless the completion date is extended by amendment to this Agreement. Page 20 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT Page 21 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION STATE HIGHWAY SYSTEM PROJECT FUNDING AGREEMENT EXHIBIT K 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 Page 22 of 23 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 DESIGN AGR1-,,EM1-',N1' BETWEEN THE DEPA.RTN1j:,,',Nrr OF THE ARMY AND %,, 40NROJ" (',0LJN`I'Y. FLA)RIDA FOR OH.SIGN FOR THE FLORIDA KIEYS, MONROIE C01JNTY, FLORIL)A COASTAL, STOR,10 RISK MAN AG EM f"N'r" PROJEC'r TJ by and betwecri the Dcpartment of the Antiy (hereinafter the "Govern merit"), represented by the District Comm r.nander fi)r JacksortviHe District (hercinafter the "Dis1rict CoMmandior") and l"44onroe (`a,raray, Hot-ida (hcreinafter,the "Non-FederaR Spormn"), represented by 1he Mayor, WITNESSETIJ, ri-IA"r: WHERI,,1AS, Federal fitrids were proOded in the Easier gy and 'Water Devekipment and Related Agencies Appr(,')pria1k)ns Act, 2023, Public LiNk 117-328, to initiate dcsign of the Florida Keys, klonrcyc G,)unq% Horida 0,,mmil Storm Risk Nianagcnwni ProJect; W1 1ERT-,AS,, Scc(ion 103 of the 'Water Resources Devekifmnent Act,of 1986, as amended (33 L,LS,C. 2213) specifics the cost-sharing reqLl�l"el,'Ilellt,$ ,ipi)lic,,al,)Ie to construction of the Project, and Section I 05(c) of the Water Resources Act 01A 986 (331 'tl,S,C, 2,215(c)), prcmw ides that the costs rA'design shall be shared in the sawle percentages as construction,ofthe 111'lroject,, WHEIt.1.°,'.AS, based t'mi the Project's piniary purpose ofcoastal storiln risk. the pailies agree that the 'Non-Federal Sptinsor shall conu1buw 3.5 pereent of the design cc)sts under this Agreernem and W1 IEREAS, the GoNernment and Non-l"ederal Sponsor have the andi to perfbrin in accordance with the tearer,",(&this Agreenlent. NOW, T'H.ERLEFORE, the parties, aarce as t"ohows: C ARTICL,I., I - DETIN 1r11110NS A, T'he terin "Project" nicans,dry fh',)odpn'r)o(tmg i3 critica infrastructure buildings, rionstructural nwasures to 4.,699 residential and 1,0; 52 nonresiden'tial structures, and stabilization oft),S, Route I (Overseas Highway), as generally described in Ilic Florida Keys Cow.wfl Stcwm Risk Management Fea, ibilityStudy, N11orkroe County, I'lorida Final 111tegrated Feasibility Iteport and EnvirotinienL,,,d Intpact Statement, datcd July 202.1 and approved bY the C"Rml f(If Era gineers on September 24, 202 L DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 I (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 I'and ending on September 30t"of the following year. ARTICLE 11 - 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 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 l't 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 shalt provide the full amount of such required funds to the Government in accordance with Article IH.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 hi-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 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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. ne 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 Govenunent'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. 4 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 5 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 IILE. 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 centurn 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 6 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 VH-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 Z.17 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 333040 7 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 BOOTR AMESIAFAYET S.LAFAYETTE. TE.1186925935 A� Date:2023.10.26 G} BY: 1186925935 155958-04'00' BY: James L.Booth Craig a Colonel,U.S.Army Mayor District Commander 3 . " ¢ KEMN MADOK CLERK �V1 DATE: 26 OCT 23 DATE: 10l25l2023U DEPUV CLERK? Approved as to form and legal sufficiency: Monroe County Attorney's Office 10725-2023 8 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 20 23 . i !Y$ftaAy39ned by flabert 6.ShilGage{ Robert B.5hillinger -.nsnMMmoe Caanryatmrney,email=sh.ff nyer- 6a6�mo wxsbfl9av,�rF 6ate:'.'62lr19.23 14:98:35-04'W` Bob Shillinger County Attorney Monroe County, Florida DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 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 Deport 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 Nils Mayor Monroe County,Florida 10/25/2023 KEV;N MA►DOK,CLERK. Approved as to form and legal sufficiency. Monroe County Attorney's Office 10-25-2023 4 DocuSign Envelope ID:70691157-5F86-4713-94AB-BCEEB2CE5D05 To:Stephen.Anderson@dot.state.fl.us FLORIDA DEPARTMENT OF TRANSPORTATION FUNDS APPROVAL ASY74 1/23/2024 CONTRACT INFORMATION Contract: ASY74 Contract Type: AK-PROJ PARTICIPATION(PROJ PART) Method of Procurement G-GOVERMENTAL AGENCY(287.057,F.S.) enddrName: MONROE COUNTY BOCC Vendor ID: F596000749114 Beginning©ateofThis Agreement; 01/23/2024 Ending Date of This Agreement-, 01/23/2026 Contract Totaf/Budgetaryr Ceiling:, ct=$513,000.00 Description: FLORIDA KEYS COSTAL STORM SHORELINE STABILIZATION IN MONROECOUNTY FUNDS APPROVAL INFORMATION FUNDS APPROVED/REVIEWED FOR JASON ADANK,CPA,COMPTROLLER ON 1/23/2024 Action: Original reviewed or Approved: "REVIEWED Organization Code: 55064020638 Expansion Option: Al OkkjectCode; 139900 Amount: $513,000.00 Finadciai ProjOct: 45402913801 Work Activity(FCT): 215 FDA: Fiscal Yebir; 2025 Budget Entity; 55150200 Category/Category Yea r: 08 8 7 1 6/2 5 Amondment I[: 0001 Sequence:, 00 User Assigned ID: Eno Line(6s)IStatus: 0001/04 Total Amount: $513,000.00 *Reviewed Funds Approval and encumbrance processing is contingent upon Annual Legislative appropriation. 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