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HomeMy WebLinkAboutAgenda 11.07.2023LUIl EROSION DISTRICT AGENDA ST. LUCIE COUNTY Special Meeting Tuesday, November 7, 2023 6:00 PM St. Lucie County Commission Chambers 2300 Virginia Avenue 3rd Floor of Roger Poitras Building Fort Pierce, FL 34982 BOARD MEMBERS District No. 1, Chair CHRIS DZADOVSKY District No. 5, Vice -Chair CATHY TOWNSEND District No. 2 LARRY LEET District No. 3 LI N DA BARTZ District No. 4 JAMIE FOWLER Mission Statement St. Lucie Works to deliver superior service that enhances our quality of life *Final on 10/31 Page 1 of 36 Regular Meeting Tuesday, November 7, 2023 6:00 PM WELCOME All meetings are televised. All meetings provided with wireless internet access for public convenience. Please turn off all cell phones and pagers prior to entering the commission chambers. Please mute the volume on all laptops and PDAs while in use in the commission chambers. GENERAL RULES AND PROCEDURES —Attached is the agenda, which will determine the order of business conducted at today's Board meeting. INVOCATION -PLEDGE —To bring order and decorum to its meeting, the Board begins its meetings with an invocation followed by the Pledge of Allegiance. Participation is voluntary. CONSENT AGENDA — These items are considered routine and are enacted by one motion. There will be no separate discussion of these items unless a Commissioner so requests. REGULAR AGENDA — Proclamations, Presentations, Public Hearings, and Department requests are items, which the Commission will discuss individually, usually in the order listed on the agenda. PUBLIC HEARINGS — These items are usually heard on the first Tuesdays at 6 p.m. or as soon thereafter as possible. However, if a public hearing is scheduled for a meeting on the third Tuesday, which begins at 9 a.m., then public hearings will be heard at 9 a.m. or as soon thereafter as possible. These time designations are intended to indicate that an item will not be addressed prior to the listed time. The Chair will open each public hearing and asks anyone wishing to speak to come forward, one at a time. Comments will be limited to five minutes, and must be pertinent to the agenda item being considered by the Board. As a general rule, when issues are scheduled before the Commission under department request or public hearing, the order of presentation is: (1) County staff presents the details of the Board item (2) Commissioners comment (3) if a public hearing, the Chair will ask for public comment, (4) further discussion and action by the Board. ADDRESSING THE COMMISSION — Please state your name and address, speaking clearly into the microphone. If you have backup material, please have eight copies ready for distribution. NON -AGENDA ITEMS — These items are presented by an individual Commissioner or staff as necessary at the conclusion of the printed agenda. PUBLIC COMMENT — Time is allotted at the beginning of each meeting for general public comment. Please limit comments to three minutes. Comments may pertain to any matter related to the Board's duties as the County's governing body. Comments in support or opposition to candidates for public office are not pertinent to the Board's duties. This includes any speaker identifying himself or herself as a candidate for public office. DECORUM — Please be respectful of others' opinions. MEETINGS — All Board meetings are open to the public and are held on the first Tuesdays of each month at 6 p.m. and on the third Tuesdays at 9 a.m., unless otherwise advertised. Meetings are held in the County Commission Chambers in the Roger Poitras Administration Annex at 2300 Virginia Ave., Fort Pierce, Fla. 34982. The Board schedules additional workshops throughout the year necessary to accomplish their goals and commitments. Notice is provided of these workshops. Anyone with a disability requiring accommodation to attend this meeting should contact the St. Lucie County Human Resources Department at 772-462-1456, HumanResources@stlucieco.org or TDD 772-462-1428 at least 48 hours prior to the meeting. z1P,: Page 2 of 36 Regular Meeting Tuesday, November 7, 2023 6:00 PM 1. CALL TO ORDER 2. GENERAL PUBLIC COMMENT 3. CONSENT AGENDA A. PORT, INLET & BEACHES 1. St. Lucie County, Florida Coastal Storm Risk Management (CSRM) Project - USACE Project Partnership Agreement (PPA) - Amendment No. 1 Staff recommends Board approval of Amendment No. 1 to the St. Lucie County, Florida, Coastal Storm Risk Management (CSRM) Project, Project Partnership Agreement (PPA), and authorization for the Erosion District Chair to sign documents as reviewed and approved by the County Attorney. 4. MOTION TO ADJOURN 3 1 P, : Page 3 of 36 3.A.1. TO: PRESENTED BY SUBMITTED BY: SUBJECT: BACKGROUND: 2023-58614 DATE: 11/7/2023 AGENDA REQUEST Erosion District Joshua Revord, Port, Inlet & Beaches Director Port, Inlet & Beaches St. Lucie County, Florida Coastal Storm Risk Management (CSRM) Project - USACE Project Partnership Agreement (PPA) - Amendment No. 1 On November 10, 2020, the Erosion District Board approved the Project Partnership Agreement (PPA) with the U.S. Army Corps of Engineers (USACE) for the St. Lucie County, Florida, Coastal Storm Risk Management (CSRM) Project (a.k.a. South County Beach). This agreement outlined the responsibilities of both parties (USACE/County) in initiating and maintaining a proposed 50-year CSRM federal beach project. This project envisioned the periodic nourishment of 3.4 miles of shoreline north of the Martin County line. A critical component of this PPA is the legal acquisition of perpetual construction easements from all adjacent properties that fall within the proposed project area. These easements are required to justify the federal contribution ($) towards the CSRM project (currently @ 34.3% federal) and include both recreation and construction access elements from the adjacent private landowners. The perpetual construction easements cover only eastern sections of privately owned land (often over the coastal dune system) which may reasonably fall within the future design template of any subsequent federal beach project(s). In total, forty- nine (49) of the fifty (50) oceanfront parcels within the project area signed over associated perpetual construction easements for the project, with one landowner unwilling to participate (Parcel ID 4512-331- 0002-000-5). After extensive negotiations, prior to initial construction commencing, an exemption from the USACE's 100% real estate policy was granted and the design/bidding of the initial federal beach project moved forward. The impact of working around this outparcel during initial construction (2022) was ultimately found to be de minimis, and the gap created (by excluding this segment of beachfront from the initial design) did not impact the intended benefits of the CSRM project. The USACE agreed with the County and designed around the remaining outparcel (4512-331-0002-000-5) but stipulated that the County would need to reasonably pursue the legal acquisition of the last perpetual easement to fully conform with the local sponsor's responsibilities, per the PPA agreement. Recent legal challenges to the standard USACE perpetual beach storm damage reduction easement language have resulted in a need to amend the current PPA language with St. Lucie County. Amendment No. 1 was provided to the County for proper execution and is a prerequisite for any formal push by the County to legally acquire the remaining perpetual construction easement. PREVIOUS ACTION: Page 4 of 36 November 10, 2020 — Erosion District Board approval of the St. Lucie County, Florida, Coastal Storm Risk Management (CSRM) Project, Project Partnership Agreement (PPA) - Agenda Item 2020-50618 (C20-12-797). February 15, 2022 — Interlocal Agreement (2022-54649, C22-02-134) approved between St. Lucie County and St. Lucie County Erosion District, including the approval to proceed with the acquisition of a perpetual beach storm damage reduction easement (perpetual easement) for the one (1) remaining federal project outparcel (Parcel 100). FINANCIAL IMPACT: There are no financial impacts directly related to the St. Luice County, Florida Coastal Storm Risk Management Project - PPA Amendment No. 1. RECOMMENDATION: Staff recommends Board approval of Amendment No. 1 to the St. Lucie County, Florida, Coastal Storm Risk Management (CSRM) Project, Project Partnership Agreement (PPA), and authorization for the Erosion District Chair to sign documents as reviewed and approved by the County Attorney. COMMISSION ACTION: RESULT: MOVER: None SECONDER: None AYES: None NAYS: None EXCUSED: None Coordination/Signatures Date: October 23, 2023 Daniel McIntyre, County Attorney Date: October 23, 2023 Mayte Santamaria, Deputy County Administrator Page 5 of 36 AMENDMENT NUMBER 1 TO THE PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND ST. LUCIE COUNTY, FLORIDA FOR THE ST. LUCIE COUNTY, FLORIDA COASTAL STORM RISK MANAGEMENT PROJECT This Amendment Number 1 is entered into this day of , 2023, by and between the Department of the Army (hereinafter the "Government"), represented by the District Commander for Jacksonville District (hereinafter the "District Commander") and St. Lucie County, Florida (hereinafter the "Non -Federal Sponsor"), represented by its Chair of the Erosion District. WITNESSETH, THAT: WHEREAS, on December 2, 2020, the Government and the Non -Federal Sponsor entered into a Project Partnership Agreement (hereinafter the "Agreement") for construction of the St. Lucie County, Florida Coastal Storm Risk Management Project (hereinafter the "Project", as defined in Article I.A. of the Agreement); WHEREAS, based on authorizing legislation and long-standing policy, the Corps may only undertake coastal storm risk management projects that serve the public interest and where the beaches involved are open to all on equal terms in a manner compatible with the authorized purpose of the Project; and WHEREAS, the Government and the Non -Federal Sponsor desire to amend the Agreement to clarify the Government's long-standing public use and access requirements for the Project. NOW, THEREFORE, the Government and the Non -Federal Sponsor agree to amend the Agreement as follows: Delete "and" at the end of the fifth WHEREAS clause and insert the following after the fifth WHEREAS clause: "WHEREAS, based on authorizing legislation and long-standing policy, the Corps may only undertake coastal storm risk management projects that serve the public interest and where Page 6 of 36 the beaches involved are open to all on equal terms in a manner compatible with the authorized purpose of the Project; and". 2. Replace Article ILL. with the following: "L. For shores, other than Federal shores, protected pursuant to this Agreement using Federal Funds, the Non -Federal Sponsor shall ensure the public use of, and access to, such shores by all on equal terms in a manner compatible with the authorized purpose of the Project." 3. All other terms and conditions of this Agreement remain unchanged. IN WITNESS WHEREOF, the Parties hereto have executed this Amendment Number 1, which shall become effective upon the date it is signed by the District Commander. DEPARTMENT OF THE ARMY C James L. Booth Colonel, U.S. Army District Commander DATE: ST. LUCIE COUNTY, FLORIDA C DATE: Chris Dzadovsky Chair Erosion District Page 7 of 36 CERTIFICATE OF AUTHORITY I, Daniel S. McIntyre, do hereby certify that I am the principal legal officer for St. Lucie County, Florida, that St. Lucie County, Florida is a legally constituted public body with full authority and legal capability to perform the terms of the Amendment Number I between the Department of the Army and St. Lucie County, Florida in connection with the St. Lucie County, Florida 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 Amendment, 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 Amendment on behalf of the St. Lucie County, Florida acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of 2023. Daniel S. McIntyre County Attorney St. Lucie County, Florida Page 8 of 36 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Chris Dzadovsky Chair Erosion District St. Lucie County, Florida DATE: Page 9 of 36 PROJECT PARTNERSHIP AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE ST. LUCIE COUNTY, FLORIDA FOR THE ST. LUCIE COUNTY, FLORIDA COASTAL STORM RISK MANAGEMENT PROJECT THIS AGREEMENT is entered into this =.'' d day of bF ;>« (, -.; by and between the Department of the Army (hereinafter the "Government"), represented by the District Commander for Jacksonville District and the St. Lucie County, Florida (hereinafter the "Non - Federal Sponsor"), represented by its Chair of the Erosion District. WITNESSETH, THAT: WHEREAS, construction of the St. Lucie County coastal storm risk management project at St. Lucie County, Florida (hereinafter the "Project", as defined in Article I.A. of this Agreement) was authorized by Section 1401(3) of the Water Resources Development Act of 2018, Public Law 115-270; WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amended (33 U.S.C. 2213), specifies the cost -sharing requirements applicable to the Project; WHEREAS, to the extent that appropriations provided under the Construction heading, Title IV, Division B of the Bipartisan Budget Act of 2018, Public Law 115-123 enacted February 9, 2018 (hereinafter "BBA 2018"), are available and used to undertake construction of the Project, the Government is authorized to finance the non -Federal cash contributions required for initial construction of the Project, currently estimated at $2,482,000, in accordance with the provisions of Section 103(k) of the Water Resources Development Act of 1986 (33 U.S.C. 2213(k)), with the interest rate for deferred payments determined in accordance with Section 106 of the Water Resources Development Act of 1986 (33 U.S.C. 2216); WHEREAS, the provisions of Section 902 of the Water Resources Development Act of 1986, as amended, do not apply to the funds provided in BBA 2018 that will be used for initial construction of the Project; WHEREAS, 33 U.S.C. 701h authorizes the Government to undertake, at the Non -Federal Sponsor's full expense, additional work while the Government is carrying out the Project; and WHEREAS, the Government and the Non -Federal Sponsor have the full authority and capability to perform in accordance with the terms of this Agreement and acknowledge that Section 221 of the Flood Control Act of 1970, as amended (42 U,S.C.1962d-5b), provides that this Agreement shall be enforceable in the appropriate district court of the United States. Page 10 of 36 NOW, THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS A. The term "Project" means the construction of beach and dune features within the South Hutchinson Island Reach including construction of a 20-foot equilibrated berm extension from the +7.0 foot 1988 North Atlantic Vertical Datum (NAVD88) contour between the R monuments R98.5 and R115+1000 feet to the Martin County line along 3.3 miles of shoreline, a dune feature that reflects the average 2008 dune position, and tapers of a maximum length of 1,000 feet extending from the northern and southern ends of the berm extension, as generally described in the St. Lucie County, Florida Coastal Storm Risk Management Project Final Integrated Feasibility Study and Environmental Assessment, dated August 2017 and approved by the Chief of Engineers on December 15, 2017 (hereinafter the "Decision Document"). B. The term "periodic nourishment" means the placement of suitable beach berm material after initial construction of the Project, at appropriate intervals during the 50-year period of Federal participation that begins on the date of initiation of construction of the Project, as generally described in the Decision Document. C. The term "construction costs" means all costs incurred by the Government and Non - Federal Sponsor in accordance with the terms of this Agreement that are directly related to design and construction of the Project and cost shared. The term includes, but is not necessarily limited to: the Government's costs of engineering, design, and construction; the Government's supervision and administration costs; the Government's costs of monitoring; the Non -Federal Sponsor's creditable costs for providing real property interests, placement area improvements, and relocations and for providing in -kind contributions, if any; and the costs of historic preservation activities except for data recovery for historic properties. The term does not include any costs for operation, maintenance, repair, rehabilitation, or replacement; dispute resolution; participation by the Government and the Non -Federal Sponsor in the Project Coordination Team to discuss significant issues and actions; audits; betterments; or additional work; or the Non - Federal Sponsor's cost of negotiating this Agreement. D. The term "real property interests" means lands, easements, and rights -of -way, including those required for relocations and borrow and dredged material placement areas. Acquisition of real property interests may require the performance of relocations. E. The term "relocation" means the provision of a functionally equivalent facility to the owner of a utility, cemetery, highway, railroad, or public facility when such action is required in accordance with applicable legal principles of just compensation. Providing a functionally equivalent facility may include the alteration, lowering, raising, or replacement and attendant demolition of the affected facility or part thereof. F. The term "placement area improvements" means the improvements required on real property interests to enable the ancillary placement of material that has been dredged or excavated during construction, operation, and maintenance of the Project, including, but not 2 Page 11 of 36 limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de -watering pumps and pipes. G. The term "functional portion thereof" means a portion of the Project that has been completed and that can function independently, as determined in writing by the District Commander for Jacksonville District (hereinafter the "District Commander"), although the remainder of the Project is not yet complete. H. The term "in -kind contributions" means those materials or services provided by the Non -Federal Sponsor that are identified as being integral to the Project by the Division Commander for South Atlantic Division (hereinafter the "Division Commander"). To be integral to the Project, the material or service must be part of the work that the Government would otherwise have undertaken for design and construction of the Project. The in -kind contributions also include any investigations performed by the Non -Federal Sponsor to identify the existence and extent of any hazardous substances that may exist in, on, or under real property interests required for the Project. I. The term "betterment" means a difference in construction of an element of the Project that results from the application of standards that the Government determines exceed those that the Government would otherwise apply to construction of that element. J. The term "fiscal year" means one year beginning on October 1' and ending on September 30th of the following year. K. The term "additional work" means items of work related to, but not cost shared as a part of, the Project that the Government will undertake on the Non -Federal Sponsor's behalf while the Government is carrying out the Project, with the Non -Federal Sponsor responsible for all costs and any liabilities associated with such work. L. The term "Maximum Cost Limit" means the statutory limitation on the total cost of periodic nourishment for the Project, as determined by the Government in accordance with Section 902 of the Water Resources Development Act of 1986, as amended, and Government regulations issued thereto. ARTICLE II - OBLIGATIONS OF THE PARTIES A. In accordance with Federal laws, regulations, and policies, the Government shall design and construct the Project, with initial construction undertaken using BBA 2018 funds to the extent they are available for that purpose and with periodic renourishment subject to receiving funds appropriated by the Congress and funds provided by the Non -Federal Sponsor. B. The Non -Federal Sponsor shall contribute 35 percent of construction costs for initial construction of the Project, and 50 percent of construction costs for periodic nourishment, allocated by the Government to coastal storm risk management; 100 percent of construction costs allocated by the Government to beach improvements with exclusively private benefits, and 3 Page 12 of 36 100 percent of construction costs allocated by the Government to improvements and other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation, as follows: 1. In accordance with Article III, the Non -Federal Sponsor shall provide the real property interests, placement area improvements, and relocations required for construction, operation, and maintenance of the Project. If the Government determines that the Non -Federal Sponsor's estimated credits for real property interests, placement area improvements, and relocations will exceed 35 percent of construction costs for initial construction or 50 percent of construction costs for periodic nourishment allocated to coastal storm risk management, the Government, in its sole discretion, may acquire any of the remaining real property interests, construct any of the remaining placement area improvements, or perform any of the remaining relocations with the cost of such work included as a part of the Government's cost of construction. Nothing in this provision affects the Non -Federal Sponsor's responsibility under Article IV for the costs of any cleanup and response related thereto. 2. In providing in -kind contributions, if any, the Non -Federal Sponsor shall obtain all applicable licenses and permits necessary for such work. As functional portions of the work are completed, the Non -Federal Sponsor shall begin operation and maintenance of such work. Upon completion of the work, the Non -Federal Sponsor shall so notify the Government within 30 calendar days and provide the Government with a copy of as -built drawings for the work. 3. For initial construction of the Project, after considering the estimated amount of credit that will be afforded to the Non -Federal Sponsor pursuant to paragraphs B.1. and B.2., above, the Government shall determine the cash contributions that otherwise would have been required from the Non -Federal Sponsor to meet its cost share for construction costs allocated to coastal storm risk management. To the extent BBA 2018 funds are available for initial construction of the Project, the Government, in accordance with the provisions of Article VI.B., may defer payment of the cash contributions that the Non -Federal Sponsor would have otherwise been required to provide during initial construction of the Project in order to meet its cost share. However, for construction costs allocated to beach improvements with exclusively private benefits and improvements and other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation, the Non - Federal Sponsor, in accordance with Article VI.D., must provide funds sufficient to cover the costs of such work in advance of the Government performing the work. 4. For each cycle of periodic nourishment, after considering the estimated amount of credit that will be afforded to the Non -Federal Sponsor pursuant to paragraphs B.1. and B.2., above, the Government shall determine the estimated amount of funds required from the Non - Federal Sponsor for the then -current fiscal year. a. No later than 60 calendar days after receipt of notification from the Government, the Non -Federal Sponsor shall provide the full amount of such funds to the Government in accordance with Article VI.C. For construction costs allocated to beach improvements with exclusively private benefits and improvements and other work located within Page 13 of 36 the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation, the Non -Federal Sponsor, in accordance with Article VI.D., must provide funds sufficient to cover the costs of such work in advance of the Government performing the work. b. No later than August 0 prior to each subsequent fiscal year during a cycle of periodic nourishment, 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. Not later than September 30' 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 VI.C. C. To the extent practicable and in accordance with Federal law, regulations, and policies, the Government shall afford the Non -Federal Sponsor the opportunity to review and comment on solicitations for contracts, including relevant plans and specifications, 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. D. The Government, as it determines necessary, shall undertake actions associated with historic preservation, including, but not limited to, the identification and treatment of historic properties as those properties are defined in the National Historic Preservation Act (NHPA) of 1966, as amended. All costs incurred by the Government for such work (including the mitigation of adverse effects other than data recovery) shall be included in construction costs and shared in accordance with the provisions of this Agreement. If historic properties are discovered during construction and the effect(s) of construction are determined to be adverse, strategies shall be developed to avoid, minimize or mitigate these adverse effects. In accordance with 54 U.S.C. 312507, up to 1 percent of the total amount authorized to be appropriated for the Project may be applied toward data recovery of historic properties and such costs shall be borne entirely by the Government. In the event that costs associated with data recovery of historic properties exceed 1 percent of the total amount authorized to be appropriated for the Project, in accordance with 54 U.S.C. 312508, the Government will seek a waiver from the 1 percent limitation under 54 U.S.C. 312507 and upon receiving the waiver, will proceed with data recovery at full federal expense. Nothing in this Agreement shall limit or otherwise prevent the Non -Federal Sponsor from voluntarily contributing costs associated with data recovery that exceed I percent. E. When the District Commander determines that initial construction of the Project, or a functional portion thereof, is complete, within 30 calendar days of such determination, the District Commander shall so notify the Non -Federal Sponsor in writing and the Non -Federal Sponsor, at no cost to the Government, shall operate, maintain, repair, rehabilitate, and replace the Project, or such functional portion thereof. The Government shall furnish the Non -Federal Sponsor with an Operation, Maintenance, Repair, Rehabilitation, and Replacement Manual (hereinafter the "OMRR&R Manual") and copies of all as -built drawings for the completed work. The Government's undertaking of a cycle of periodic nourishment has no effect on the Non -Federal Sponsor's continuing responsibility for operation, maintenance, repair, 5 Page 14 of 36 rehabilitation, and replacement of the Project. If a cycle of periodic nourishment changes those responsibilities, the Non -Federal Sponsor, at no cost to the Government, shall commence any additional responsibilities upon notification from the Government. 1. The Non -Federal Sponsor shall conduct its operation, maintenance, repair, rehabilitation, and replacement responsibilities in a manner compatible with the authorized purpose of the Project and in accordance with applicable Federal laws and specific directions prescribed by the Government in the OMRR&R Manual. The Government and the Non -Federal Sponsor shall consult on any subsequent updates or amendments to the OMRR&R Manual. 2. The Government may enter, at reasonable times and in a reasonable manner, upon real property interests that the Non -Federal Sponsor now or hereafter owns or controls to inspect the Project, and, if necessary, to undertake any work necessary to the functioning of the Project for its authorized purpose. If the Government determines that the Non -Federal Sponsor is failing to perform its obligations under this Agreement and the Non -Federal Sponsor does not correct such failures within a reasonable time after notification by the Government, the Government, at its sole discretion, may undertake any operation, maintenance, repair, rehabilitation, or replacement of the Project. No operation, maintenance, repair, rehabilitation, or replacement by the Government shall relieve the Non -Federal Sponsor of its obligations under this Agreement or preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance of this Agreement. F. At least twice annually and after storm events, the Non -Federal Sponsor, at no cost to the Government, shall perform surveillance of the Project to determine losses of material and provide results of such surveillance to the Government. G. Not less than once each year, the Non -Federal Sponsor shall inform affected interests of the extent of risk reduction afforded by the Project. H. The Non -Federal Sponsor shall participate in and comply with applicable Federal floodplain management and flood insurance programs. 1. In accordance with Section 402 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 701b-12), the Non -Federal Sponsor shall prepare a floodplain management plan for the Project within one year after the effective date of this Agreement and shall implement such plan not later than one year after completion of initial construction of the Project. The plan shall be designed to reduce the impacts of future coastal events in the project area, including but not limited to, addressing those measures to be undertaken by non -Federal interests to preserve the level of coastal storm risk reduction provided by such work. The Non - Federal Sponsor shall provide an information copy of the plan to the Government. J. The Non -Federal Sponsor shall publicize floodplain information in the area concerned and shall provide this information to zoning and other regulatory agencies for their use in adopting regulations, or taking other actions, to prevent unwise future development and to ensure compatibility with the Project. Page 15 of 36 K. The Non -Federal Sponsor shall prevent obstructions or encroachments on the Project (including prescribing and enforcing regulations to prevent such obstructions or encroachments) that might reduce the level of coastal storm risk reduction the Project affords, hinder operation and maintenance of the Project, or interfere with the Project's proper function. L. For shores, other than Federal shores, protected pursuant to this Agreement using Federal funds, the Non -Federal Sponsor shall ensure the continued public use of such shores compatible with the authorized purpose of the Project. M. The Non -Federal Sponsor shall provide and maintain necessary access roads, parking areas, and other associated public use facilities, open and available to all on equal terms, as described in the Decision Document. N. 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. O. 1n carrying out its obligations under this Agreement, the Non -Federal Sponsor shall comply with all the requirements of applicable Federal laws and implementing regulations, including, but not limited to: Section 601 of the Civil Rights Act of 1964 (P.L. 88-352), as amended (42 U.S.C, 2000d), and Department of Defense Directive 5500.11 issued pursuant 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. P. In addition to the ongoing, regular discussions of the parties in the delivery of the Project, the Govemment and the Non -Federal Sponsor may establish a Project Coordination Team to discuss significant issues or actions. The Government's costs for participation on the Project Coordination Team shall not be included in construction costs that are cost shared but shall be included in calculating the Maximum Cost Limit. The Non -Federal Sponsor's costs for participation on the Project Coordination Team shall not be included in construction costs that are cost shared and shall be paid solely by the Non -Federal Sponsor without reimbursement or credit by the Government. Q. The Non -Federal Sponsor may request in writing that the Government perform betterments or additional work on behalf of the Non -Federal Sponsor. 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 W.D., must provide funds sufficient to cover the costs of such work in advance of the Government performing the work. R. Notwithstanding any other provision in this Agreement, in the event that there are insufficient BBA 2018 funds available to complete initial construction of the Project, such completion shall be subject to receiving Federal funds appropriated by the Congress. To the extent that Federal funds other than BBA 2018 funds are used, financing is not available for any Page 16 of 36 required cash contribution, and the Non -Federal Sponsor must provide such amounts in accordance with the following: 1. The Government shall determine the amount of funds required from the Non - Federal Sponsor to meet its cost share for the then -current fiscal year. No later than 30 calendar days after receipt of notification from the Government, the Non -Federal Sponsor shall provide the full amount of such required funds to the Government in accordance with Article VI.B.l.c, 2. No later than August I st prior to each subsequent fiscal year, the Government shall provide the Non -Federal Sponsor with a written estimate of the full amount of funds required from the Non -Federal Sponsor during that fiscal year to meet its cost share. Not later than September 1 st 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 VI.B.I.e. ARTICLE III - REAL PROPERTY INTERESTS, PLACEMENT AREA IMPROVEMENTS, RELOCATIONS, AND COMPLIANCE WITH PUBLIC LAW 91-646, AS AMENDED A. The Government, after consultation with the Non -Federal Sponsor, shall determine the real property interests needed for construction, operation, and maintenance of the Project. The Government shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of the real property interests that the Government determines the Non -Federal Sponsor must provide for construction, operation, and maintenance of the Project, and shall provide the Non -Federal Sponsor with a written notice to proceed with acquisition. The Non -Federal Sponsor shall acquire the real property interests and shall provide the Government with authorization for entry thereto in accordance with the Government's schedule for construction of the Project. The Non -Federal Sponsor shall ensure that real property interests provided for the Project are retained in public ownership for uses compatible with the authorized purposes of the Project. B. The Government, after consultation with the Non -Federal Sponsor, shall determine the placement area improvements necessary for construction, operation, and maintenance of the Project, and shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of such improvements and shall provide the Non -Federal Sponsor with a written notice to proceed with such improvements. The Non -Federal Sponsor shall construct the improvements in accordance with the Government's construction schedule for the Project. C. The Government, after consultation with the Non -Federal Sponsor, shall determine the relocations necessary for construction, operation, and maintenance of the Project, and shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations and shall provide the Non -Federal Sponsor with a written notice to proceed with such relocations. The Non -Federal Sponsor shall perform or ensure the performance of these relocations in accordance with the Government's construction schedule for the Project. Page 17 of 36 D. To the maximum extent practicable, not later than 30 calendar days after the Government provides to the Non -Federal Sponsor written descriptions and maps of the real property interests, placement area improvements, and relocations required for construction, operation, and ;maintenance of the Project, the Non -Federal Sponsor may request in writing that the Government acquire all or specified portions of such real property interests, construct placement area improvements, or perform the necessary relocations. If the Government agrees to such a request, the Non -Federal Sponsor, in accordance with Article VI.D., must provide funds sufficient to cover the costs of the acquisitions, placement area improvements, or relocations in advance of the Government performing the work. The Government shall acquire the real property interests, construct the placement area improvements, and perform the relocations, applying Federal laws, policies, and procedures. The Government shall acquire real property interests in the name of the Non -Federal Sponsor except, if acquired by eminent domain, the Government shall convey all of its right, title and interest to the Non -Federal Sponsor by quitclaim deed or deeds. The Non -Federal Sponsor shall accept delivery of such deed or deeds. The Government's providing real property interests, placement area improvements, or performing relocations on behalf of the Non -Federal Sponsor does not alter the Non -Federal Sponsor's responsibility under Article IV for the costs of any cleanup and response related thereto. E. As required by Sections 210 and 305 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended (42 U.S.C. 4630 and 4655), and Section 24.4 of the Uniform Regulations contained in 49 C.F.R. Pail 24, the Non - Federal Sponsor assures that (1) fair and reasonable relocation payments and assistance shall be provided to or for displaced persons, as are required to be provided by a Federal agency under Sections 4622, 4623 and 4624 of Title 42 of the U.S. Code; (2) relocation assistance programs offering the services described in Section 4625 of Title 42 of the U.S. Code shall be provided to such displaced persons; (3) within a reasonable period of time prior to displacement, comparable replacement dwellings will be available to displaced persons in accordance with Section 4625(c)(3) of Title 42 of the U.S. Code; (4) in acquiring real property, the Non -Federal Sponsor will be guided, to the greatest extent practicable under State law, by the land acquisition policies in Section 4651 and the provision of Section 4652 of Title 42 of the U.S. Code; and (5) property owners will be paid or reimbursed for necessary expenses as specified in Sections 4653 and 4654 of Title 42 of the U.S. Code. ARTICLE IV - HAZARDOUS SUBSTANCES A. The Non -Federal Sponsor shall be responsible for undertaking any investigations to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter "CERCLA") (42 U.S.C. 9601-9675), that may exist in, on, or under real property interests required for construction, operation, and maintenance of the Project. However, for real property interests that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Commander provides the Non - Federal Sponsor with prior specific written direction, in which case the Non -Federal Sponsor shall perform such investigations in accordance with such written direction. 6 Page 18 of 36 B, In the event it is discovered that hazardous substances regulated under CERCLA exist in, on, or under any of the required real property interests, within 15 calendar days of such discovery, the Non -Federal Sponsor and the Government, in addition to providing any other notice required by applicable law, shall provide written notice to each other, and the Non -Federal Sponsor shall not proceed with the acquisition of such real property interests until the parties agree that the Non -Federal Sponsor should proceed. C. If hazardous substances regulated under CERCLA are found to exist in, on, or under any required real property interests, the parties shall consider any liability that might arise under CERCLA and determine whether to initiate construction, or if already initiated, whether to continue construction, suspend construction, or terminate construction. 1. Should the parties initiate or continue construction, the Non -Federal Sponsor shall be responsible, as between the Government and the Non -Federal Sponsor, for the costs of cleanup and response, including the costs of any studies and investigations necessary to determine an appropriate response to the contamination. Such costs shall be paid solely by the Non -Federal Sponsor without reimbursement or credit by the Government. 2. In the event the parties cannot reach agreement on how to proceed or the Non - Federal Sponsor fails to provide any funds necessary to pay for cleanup and response costs or to otherwise discharge the Non -Federal Sponsor's responsibilities under this Article upon direction by the Government, the Government may suspend or terminate construction, but may undertake any actions it determines necessary to avoid a release of such hazardous substances. D. In the event of a discovery, the Non -Federal Sponsor and the Government shall initiate consultation with each other within 15 calendar days in an effort to ensure that responsible parties bear any necessary cleanup and response costs as defined in CERCLA. Any decision made pursuant to this Article shall not relieve any third parry from any liability that may arise under CERCLA. E. As between the Government and the Non -Federal Sponsor, the Non -Federal Sponsor shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non -Federal Sponsor shall operate, maintain, repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise under CERCLA, ARTICLE V - CREDIT FOR REAL PROPERTY INTERESTS, PLACEMENT AREA IMPROVEMENTS, RELOCATIONS, AND IN -KIND CONTRIBUTIONS A. The Government shall include in construction costs, and credit towards the Non - Federal Sponsor's share of such costs, the value of Non -Federal Sponsor provided real property interests (except interests in Iands subject to shore erosion that are publicly owned on the effective date of this Agreement or, if required for in -kind contributions covered by an in -kind Memorandum of Understanding (hereinafter "In -Kind MOU"), that were publicly owned on the 10 Page 19 of 36 effective date of the In -Kind MOU), placement area improvements, and relocations, and the costs of in -kind contributions determined by the Government to be required for the Project. However, for initial construction of the Project, only costs incurred by the Non -Federal Sponsor to acquire real property interests from private owners, to construct placement area improvement, to perform relocations, and to provide in -kind contributions are eligible for credit. B. To the maximum extent practicable, no later than 3 months after it provides the Government with authorization for entry onto a real property interest or pays compensation to the owner, whichever occurs later, the Non -Federal Sponsor shall provide the Government with documents sufficient to determine the amount of credit to be provided for the real property interest in accordance with paragraphs C. 1. of this Article. To the maximum extent practicable, no less frequently than on a quarterly basis, the Non -Federal Sponsor shall provide the Government with documentation sufficient for the Government to determine the amount of credit to be provided for other creditable items in accordance with paragraph C. of this Article. C. The Government and the Non -Federal Sponsor agree that the amount of costs eligible for credit that are allocated by the Government to construction costs shall be determined and credited in accordance with the following procedures, requirements, and conditions. Such costs shall be subject to audit in accordance with Article X.B. to determine reasonableness, allocability, and allowability of costs. 1. Real Property Interests. a. General Procedure. For initial construction of the Project, only costs associated with real property interests acquired from private owners after the effective date of this Agreement are eligible for credit, unless such real property interests acquired from private owners were required for in -kind contributions covered by an In -Kind MOU. The Non -Federal Sponsor shall obtain, for each creditable real property interest (except interests in lands subject to shore erosion that are publicly owned on the effective date of this Agreement), an appraisal of the fair market value of such interest that is prepared by a qualified appraiser who is acceptable to the parties. Subject to valid jurisdictional exceptions, the appraisal shall conform to the Uniform Standards of Professional Appraisal Practice. The appraisal must be prepared in accordance with the applicable rules of just compensation, as specified by the Government. For crediting purposes, appraisals of interests in lands subject to shore erosion acquired from private parties after the effective date of this Agreement must consider special benefits in accordance with the Uniform Appraisal Standards for Federal_ Land -Acquisition (2016) (hereinafter "Uniform Appraisal Standards"). (1) Date of Valuation. For any real property interests (other than interests in lands subject to shore erosion) owned by the Non -Federal Sponsor on the effective date of this Agreement and required for construction performed after the effective date of this Agreement, the date the Non -Federal Sponsor provides the Government with authorization for entry thereto shall be used to determine the fair market value. For any real property interests required for in -kind contributions covered by an In -Kind MOU (other than interests in lands subject to shore erosion that were publicly owned on the effective date of the In -Kind MOU), the date of initiation of construction shall be used to determine fair market value. The fair market Page 20 of 36 value of real property interests acquired by the Non -Federal Sponsor after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired. (2) Except for real property interests acquired through eminent domain proceedings instituted after the effective date of this Agreement, the Non -Federal Sponsor shall submit an appraisal for each real property interest to the Government for review and approval no later than, to the maximum extent practicable, 60 calendar days after the Non - Federal Sponsor provides the Government with an authorization for entry for such interest or concludes the acquisition of the interest through negotiation or eminent domain proceedings, whichever occurs later. If, after coordination and consultation with the Government, the Non - Federal Sponsor is unable to provide an appraisal that is acceptable to the Government, the Government shall obtain an appraisal to determine the fair market value of the real property interest for crediting purposes. (3) The Government shall credit the Non -Federal Sponsor the appraised amount approved by the Government. Where the amount paid or proposed to be paid by the Non -Federal Sponsor exceeds the approved appraised amount, the Government, at the request of the Non -Federal Sponsor, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the Non -Federal Sponsor, may approve in writing an amount greater than the appraised amount for crediting purposes. b. Eminent Domain Procedure. For real property interests acquired by eminent domain proceedings instituted after the effective date of this Agreement, the Non - Federal Sponsor shall notify the Government in writing of its intent to institute such proceedings and submit the appraisals of the specific real property interests to be acquired for review and approval by the Government. If the Government provides written approval of the appraisals, the Non -Federal Sponsor shall use the amount set forth in such appraisals as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. (1) If the Government provides written disapproval of the appraisals, the Government and the Non -Federal Sponsor shall consult to promptly resolve the issues that are identified in the Government's written disapproval. In the event the issues cannot be resolved, the Non -Federal Sponsor may use the amount set forth in its appraisal as the estimate of just compensation for purpose of instituting the eminent domain proceeding. Except as provided in paragraph C.l .b.(2) below, the fair market value for crediting purposes shall be either the amount of the court award for the real property interests taken or the amount of any stipulated settlement or portion thereof that the Government approves in writing. (2) For interests in lands subject to shore erosion, the Government will credit the amount of the court award or stipulated settlement only to the extent that the court award or stipulated settlement considered special benefits in accordance with the Uniform Appraisal Standards. If the court award or stipulated settlement did not consider special benefits, fair market value for crediting purposes shall be the limited to the amount determined by an appraisal that considers special benefits. 12 Page 21 of 36 c. Waiver of Appraisal. Except as required by paragraph C.1.b. of this Article, the Government may waive the requirement for an appraisal pursuant to this paragraph if, in accordance with 49 C.F.R. Section 24.102(c)(2): (1) the owner is donating the real property interest to the Non - Federal Sponsor and releases the Non -Federal Sponsor in writing from its obligation to appraise the real property interest, and the Non -Federal Sponsor submits to the Government a copy of the owner's written release; or (2) the Non -Federal Sponsor determines that an appraisal is unnecessary because the valuation problem is uncomplicated and the anticipated value of the real property interest proposed for acquisition is estimated at $25,000 or less, based on a review of available data. When the Non -Federal Sponsor determines that an appraisal is unnecessary, the Non -Federal Sponsor shall prepare the written waiver valuation required by 49 C.F.R. Section 24.102(c)(2) and submit a copy thereof to the Government for approval. When the anticipated value of the real property interest exceeds $10,000, the Non -Federal Sponsor must offer the owner the option of having the Non -Federal Sponsor appraise the real property interest. d. Incidental Costs. The Government shall include in construction costs and credit towards the Non -Federal Sponsor's share of such costs, the incidental costs, documented to the satisfaction of the Government, that the Non -Federal Sponsor incurred in acquiring any real property interests required pursuant to Article III for the Project after the effective date of this Agreement, unless such incidental costs were required for in -kind contributions covered by an In -Kind MOU. For initial construction of the Project, only incidental costs for acquiring real property interests from private owners are eligible for credit. Such incidental costs shall include closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, mapping costs, actual amounts expended for payment of any relocation assistance benefits provided in accordance with Article III.E., and other payments by the Non - Federal Sponsor for items that are generally recognized as compensable, and required to be paid, by applicable state law due to the acquisition of a real property interest pursuant to Article III. 2. Placement Area Improvements. The Government shall include in construction costs and credit towards the Non -Federal Sponsor's share of such costs, the value of placement area improvements required for the Project. The value shall be equivalent to the costs, documented to the satisfaction of the Government, that the Non -Federal Sponsor incurred to provide any placement area improvements required for the Project. Only placement area improvements provided after the effective date of this Agreement are eligible for credit, unless such placement area improvements were required for in -kind contributions covered by an In - Kind MOU. Such costs shall include, but not necessarily be limited to, actual costs of constructing the improvements; planning, engineering, and design costs; supervision and administration costs; and documented incidental costs associated with providing the improvements, but shall not include any costs associated with betterments, as determined by the Government. 3. Relocations. The Government shall include in construction costs and credit towards the Non -Federal Sponsor's share of such costs, the value of any relocations performed 13 Page 22 of 36 by the Non -Federal Sponsor that are directly related to construction, operation, and maintenance of the Project. Only relocations performed after the effective date of this Agreement are eligible for credit, unless such relocations were required for in -kind contributions covered by an In -Kind MOU. a. For a relocation other than a highway, the value shall be only that portion of relocation costs that the Government determines is necessary to provide a functionally equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any removed items. b. For a relocation of a highway, which is any highway, roadway, or street, including any bridge thereof, that is owned by a public entity, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of Florida would apply under similar conditions of geography and traffic load, reduced by the salvage value of any removed items. c. Relocation costs include actual costs of performing the relocation; planning, engineering, and design costs; supervision and administration costs; and documented incidental costs associated with performance of the relocation, as determined by the Government. Relocation costs do not include any costs associated with betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. 4. In -Kind Contributions. The Government shall include in construction costs and credit towards the Non -Federal Sponsor's share of such costs, the value of in -kind contributions that are integral to the Project. a. The value shall be equivalent to the costs, documented to the satisfaction of the Government, that the Non -Federal Sponsor incurred to provide the in -kind contributions. Such costs shall include, but not necessarily be limited to, actual costs of providing the in -kind contributions; engineering and design costs; supervision and administration costs; and documented incidental costs associated with providing the in -kind contributions, but shall not include any costs associated with betterments, as determined by the Government. Appropriate documentation includes invoices and certification of specific payments to contractors, suppliers, and the Non -Federal Sponsor's employees. b. No credit shall be afforded for interest charges, or any adjustment to reflect changes in price levels between the time the in -kind contributions are completed and credit is afforded; for the value of in -kind contributions obtained at no cost to the Non -Federal Sponsor; for any in -kind contributions performed prior to the effective date of this Agreement unless covered by an In -Kind MOU between the Government and Non -Federal Sponsor; or for costs that exceed the Government's estimate of the cost for such in -kind contributions if they had been provided by the Government. 5. Compliance with Federal Labor Laws. Any credit afforded under the terms of this Agreement is subject to satisfactory compliance with applicable Federal labor laws covering 14 Page 23 of 36 non -Federal construction, including, but not limited to, 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708 (labor standards originally enacted as the Davis -Bacon Act, the Contract Work Hours and Safety Standards Act, and the Copeland Anti -Kickback Act), and credit may be withheld, in whole or in part, as a result of the Non -Federal Sponsor's failure to comply with its obligations under these laws. D. Notwithstanding any other provision of this Agreement, the Non -Federal Sponsor shall not be entitled to credit for real property interests that were previously provided as an item of local cooperation for another Federal project, that are required for beach improvements with exclusively private benefits or improvements or other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation, or real property interests for initial construction of the Project (other than those acquired through relocations) that are owned or controlled by public entities. ARTICLE VI — PAYMENT OF FUNDS A. As of the effective date of this Agreement, total construction costs are projected to be $114,794,000, with the Government's share of such costs projected to be $32,826,000 and the Non -Federal Sponsor's share of such costs projected to be $81,968,000. Construction costs allocated to coastal storm risk management for initial construction are projected to be $22,894,000, with the Government's share of such costs projected to be $8,013,000 and the Non - Federal Sponsor's share of such costs projected to be $14,881,000, which includes creditable real property interests, relocations, and placement area improvements projected to be $1,848,000, creditable in -kind contributions projected to be $1,858,000, and the amount of funds required to meet its cost share projected to be $11,175,000. Construction costs allocated to coastal storm risk management for periodic nourishment are projected to be $91,900,000, with the Government's share of such costs projected to be $24,813,000, and the Non -Federal Sponsor's share of such costs projected to be $67,087,000. Construction costs allocated to beach improvements with exclusively private benefits are projected to be $10,352,000 for initial construction and $41,556,000 for periodic nourishment. Construction costs allocated to improvements or other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation are projected to be $199,000 for initial construction and $797,000 for periodic nourishment. Costs for betterments are projected to be $0. These amounts are estimates only that are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the Non -Federal Sponsor. B. Deferred Payment of Cash Contributions for Initial Construction of the Project. To the extent BBA 2018 funds are available for initial construction of the Project, the following provisions apply: 1. During initial construction of the Project, the Government will maintain records of monthly Federal obligations and determine non -Federal share of such obligations. 15 Page 24 of 36 a. The Government shall charge interest on the non -Federal share of each monthly amount. Interest shall be compounded annually on the anniversary of each monthly amount until the date initial construction of the Project is completed or terminated, as applicable. If such anniversary is less than twelve months, the Government will prorate the interest changes. b. The Government shall provide the Non -Federal Sponsor with monthly reports of all such monthly amounts incurred to date and the estimated interest charges applied to each monthly amount through that quarter. c. If the Non -Federal Sponsor elects to make a payment of funds during initial construction of the Project or the Government determines at any time that it does not have sufficient funds to allow the Non -Federal Sponsor to defer its cash contributions pursuant to the provisions of paragraph B. of this Article, the Non -Federal Sponsor shall provide such 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. 2. Pursuant to Article ILE. or Article VII, the District Commander shall provide written notification to the Non -Federal Sponsor of the date initial construction was completed or terminated, as applicable. After such notification, the Government shall conduct a final accounting to determine the construction costs for initial construction and each parry's required share thereof, and each party's total contributions thereto. Such final accounting does not limit the Non -Federal Sponsor's responsibility to pay its share of construction costs for initial construction, including contract claims or any other liability that may become known after the final accounting. In addition, if the final accounting for initial construction determines that the Non -Federal Sponsor's credit for real property interests, placement area improvements, and relocations combined with credit for in -kind contributions exceed its share of construction costs for initial construction, the Government, subject to the availability of funds, shall enter into a separate agreement to reimburse the difference to the Non -Federal Sponsor. 3. Not later than 30 calendar days after the date of the District Commander's written notice pursuant to paragraph B.2. of this Article, the Government shall complete the final accounting and notify the Non -Federal Sponsor in writing of the principal amount, which includes that portion of the non -Federal cash contributions that have been deferred plus interest during construction, and the initial annual installments of the principal amount amortized over a period of 30-years using an interest rate determined in accordance with Section 106 of the Water Resources Development Act of 1986. The payment period begins on the date the Government notifies the Non -Federal Sponsor of the principal amount and the initial annual installments. 4. The Government shall recalculate the annual installments at five-year intervals by amortizing the outstanding portion of the principal amount over the remaining portion of the payment period using an interest rate determined in accordance with Section 106 of the Water Resources Development Act of 1986. The Government shall notify the Non - Federal Sponsor in writing of the recalculated annual installments. The last installment shall be adjusted upward or downward to assure payment of all the indebtedness. 16 Page 25 of 36 5. The Non -Federal Sponsor shall pay the first installment no later than 30 calendar days after the date of the Government's notification pursuant to paragraph B.3. of this Article, and each annual installment thereafter on the anniversary date of such notification, by delivering a check payable to "FAO, USAED, Jacksonville (K3)" to the District Commander or providing an Electronic Funds Transfer in accordance with procedures established by the Government. The Non -Federal Sponsor, in its sole discretion, may prepay the principal amount, in whole or in part, at any time without penalty. C. Payment of Funds for Each Cycle of Periodic Nourishment. 1. While undertaking periodic nourishment, the Government shall provide the Non -Federal Sponsor with quarterly reports setting forth the estimated construction 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 real property interests, placement area improvements, and relocations; the estimated amount of any creditable in -kind contributions; and the estimated amount of funds required from the Non - Federal Sponsor during the upcoming fiscal year. 2. For each cycle of periodic nourishment, the Non -Federal Sponsor shall provide The funds required to meet its share of construction costs allocated to coastal storm risk management by delivering a check payable to "FAO, USAED, Jacksonville (K3)" to the District Commander, or verifying to the satisfaction of the Government that the Non -Federal Sponsor has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non -Federal Sponsor, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 3. The Government shall draw from the funds provided by the Non -Federal Sponsor to cover the non -Federal share of construction costs allocated to coastal storm risk management 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 such construction costs, the Government shall provide the Non -Federal Sponsor with written notice of the amount of additional funds required. Within 60 calendar days from receipt of such notice, the Non -Federal Sponsor shall provide the Government with the full amount of such additional required funds. 4. Upon completion of each cycle of periodic nourishment, including resolution of all relevant claims and appeals and eminent domain proceedings, the Government shall conduct a final accounting and furnish the Non -Federal Sponsor with the written results of such final accounting. Should such final accounting determine that additional funds are required from the Non -Federal Sponsor, the Non -Federal Sponsor, within 60 calendar days of receipt of written notice from the Government, shall provide the Government with the full amount of such additional required funds. Such final accounting does not limit the Non -Federal Sponsor's responsibility to pay its share of construction costs, including contract claims or any other liability that may become known after the final accounting. If a final accounting determines that funds provided by the Non -Federal Sponsor exceed the amount of funds required to meet its 17 Page 26 of 36 share of construction costs for periodic nourishment, the Government shall refund such excess amount, subject to the availability of funds for the refund. In addition, if such final accounting determines that the Non -Federal Sponsor's credit for real property interests, placement area improvements, and relocations combined with credit for in -kind contributions exceed its share of construction costs for periodic nourishment, the Government, subject to the availability of funds, shall enter into a separate agreement to reimburse the difference to the Non -Federal Sponsor. D. If there are beach improvements with exclusively private benefits; improvements or other work located within the Coastal Barrier Resources System that the Government has determined are ineligible for Federal financial participation; or real property interests, placement area improvements, relocations, additional work, or betterments provided on behalf of the Non - Federal Sponsor; the Government shall provide written notice to the Non -Federal Sponsor of the amount of funds required to cover such costs. No later than 60 calendar days of receipt of such written notice, the Non -Federal Sponsor shall make the full amount of such required funds available to the Government by delivering a check payable to "FAO, USAED, Jacksonville (K3)" to the District Commander, or by providing an Electronic Funds Transfer of such funds in accordance with procedures established by the Government. If at any time the Government determines that additional funds are required to cover such costs, the Non -Federal Sponsor shall provide those funds within 30 calendar days from receipt of written notice from the Government. ARTICLE VII - 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 construction of the Project unless the Assistant Secretary of the Army (Civil Works) determines that continuation of such work is in the interest of the United States or is necessary in order to satisfy agreements with other non -Federal interests. B. If the Government determines at any time that the Federal funds made available for construction of the Project 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 construction, until there are sufficient funds appropriated by the Congress and funds provided by the Non -Federal Sponsor to allow construction to resume. In addition, the Government may suspend construction of periodic nourishment if the Maximum Cost Limit is exceeded. C. If hazardous substances regulated under CERCLA are found to exist in, on, or under any required real property interests, the parties shall follow the procedures set forth in Article IV. D. In the event of termination, the parties shall conclude their activities relating to construction of the Project. To provide for this eventuality, the Government may reserve a percentage of available funds as a contingency to pay the costs of termination, including any costs of resolution of real property acquisition, resolution of contract claims, and resolution of contract modifications. 18 Page 27 of 36 E. 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 VIII - HOLD AND SAVE The Non -Federal Sponsor shall hold and save the Government free from all damages arising from design, construction, operation, maintenance, repair, rehabilitation, and replacement of the Project, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE IX - 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 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 X - MAINTENANCE OF RECORDS AND AUDITS 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 Project. Government audits shall be conducted in accordance with applicable Government cost principles and regulations. The Government's costs of audits shall not be included in construction costs that are cost shared but shall be included in calculating the Maximum Cost Limit. 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 request of the Non -Federal Sponsor, 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 19 Page 28 of 36 Agreement. The costs of non -Federal audits shall be paid solely by the Non -Federal Sponsor without reimbursement or credit by the Government. ARTICLE XI - 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 XII - 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: County Administrator St. Lucie County 2300 Virginia Avenue Fort Pierce, Florida 34982 If to the Government: District Commander 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 XIII - 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. 20 Page 29 of 36 ARTICLE XIV - 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 a 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 i Anarew,r). &-eiiy, jr. Colonel, U.S. Army District Commander DATE: ST. LUCIE COUNTY, FLORIDA ll p Ni `u Frannie Hut`ff`inson Chair Erosion District DATE: 21 Page 30 of 36 CERTIFICATE OF AUTHORITY 1, 00glel 1� rq do hereby certify that I am the principal Iegal officer for St. Lucie County, Florida, that St. Lucks ounty, 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 St. Lucie County, Florida in connection with the St. Lucie County, Florida 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 St. Lucie County, Florida acted within her statutory authority. IN WITNESS WHE OF, I have made and executed this certification this / day of L' 20 D . Page 31 of 36 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 'Trannie Hutc fso Chair Erosion District DATE: Page 32 of 36 INTER1,0CAL AG4WEMENT BY AND BE,rwE.EN ST. LUCIE COUNTY ANDTHE ST. LUCIE C0!J.NTY EROSION DISTIUCT THIS INTERLOCAL AGR-EE'NENT is entered into this day of 2022 by and between St. LUCiC Count:),, Florida, a political subdivision of the Stale of Florida (ficreinaficr referred to as "COUNTY") and the St, Lucie County F,'rosion District, a dependent special district of St. Lucie County, Florida (hereinafter referred to as"DI STRICT"), WITNESS[-�Tll- WHEREAS, Section 163.0 1, 1,7oritlte Statutes, allows governmental units to make the most efficient use oftheir powers and resources by enabling them to cooperate with other governmental entities and localities on a basis of mutual advantage in order to provide services and facilities in ,in economical and efficient manner; and WHERFIAS, COUNTY is a Political subdivision oftlic State of Florida with approximately 22 miles, ofoccan-ftont, shoreline. Due to natural ocean tides, currents and movements, as well as storm events, said shoreline and beacht-ront properties periodically suffer erosion that requires beach and dune restoration and renourishment in older to preserve and protect the shoreline as well as upland properties and irnprovernents; and Wtll.,"Rl..IAS, DISTRICT is a dependent special District of C01 WIFY created pursuant to Chapter 2004-409, L,aws of Ilorida, and is empowered to acquire, construct, reconstruct, improve, operate and maintain erosion prevention facilities including, but not limited to, the restoration and renourishment ofbeach and dune areas; and WHERE'AS, COUNTY, in conjunction, with DISTRICT, has entered in to a Protect. Partnership Agreement dated Decerriber 2, 2020 (hereinafter referred to as 'TIPA") with the Department of the Army authorizing the St. Lucie County Florida Coastal Storm Risk Management ((SRM) par o.ject (hereinallcr reflerred to as the "PrQject") in order to construct, restore and renourish approximately 3.3 miles of shoreline on South Hutchinson Island within St. Lucie County, Florida; and WHERE"AS, in accordance with the PPA, C0(JNTY and DISTRK,71'are required to obtain property interests (perpetual beach storm damage reduction casements) on and over the upland MICHELLE FL MILLER, CLERK OF THE CIRCUIT COURT SAINT LUCIE COUNTY FILE # 5001166 01'0 1/2022 03 37" 22 PM LLD R BOOK 4 781 PAGE 1436, 14 39 D-X Type R RECORDNG: $35,50, Page 33 of 36 properties that are necessary to proceed with the PrQject as well as authorizing future beach and dune restoration and restoration pro.jects, as necessary; and WHEREAS, DISTRICT has obtained by voluntary conveyance perpetual beach storm damage reduction casements from forty-nine (49) of the fitly (50) ocean front properties within the South Hutchinson Island Reach necessary to proceed with the Prqject, and ATIEP,E,AS, Pursuant to Chapter 2004-409, DlS'FRJCT possesses the power to acquire by gift, purchase or eminent domain in the natric of the DISTRICTsuch lands and rights and interests therein necessary to accomplish its purposes and to hold all such real property interests tinder its control; and WHERI"AS, (.`(1_)U_N'f`Y and DISTRICT agree that it is most economical and el"ficient for DISTRICT to acquire as perpetual beach storin damage reduction casement, on and over Parcel 100 as hereinafter described, NOW, THF'IREI`( . )Rit is agreed by and between COUN I'Y and DIS"FRICTas follows, 1. Theabove recitals are true and correct and are incorporated herein by reference. 2, DISTRICT'sha.11 Proceed to acquire by gift, purchase or cirtinent domain, in the name of the DISTRICT, a perpetual beach storm damage reduction casement necessary for the public purpose of implementing the PROJI".C"Fon and over the fiollowing real property (designated as Parcel 100) legally described as to I l,o ws: SF,'E A"I"FACYIED LXGAL DI"SCRIPTION 3, In order to proceed with the acquisition ot'parcel 100, DISTRICT may and is authorized to utilize the services ofCounty's Coastal Fligincering staff, the County Attorney and his staff and such other County employees, staff' and outside consultants and at-torricys as may be necessary to accomplish said acquisition and to see that erninent domain proceedings are prosecuted to judgment. 4. Nothing contained in this Interlocal Agreement shall be construed to constitute a transfer of powers in any way whatsoever, This Interlocal Agreement is solely an interlocalagreement to provide serveisas authorized by Chapter 163, Porida Slatules. The C0I.JN,rY,S and the DIS°fl 1C 'I"°S governing bodies shall each retain all legislative authority with regard to their respective governing body. All of the privileges and immunities, firom liability, exemptions from laws, ordinances and rules, and pensions and relief'. disability, workers compensation and other benefits which apply to the activity of officers, agent's or employees of any public agency 2 Page 34 of 36 when performing their respective t"unctions within the territorial limits for their respective agencies shall apply tir the same degree and extent to the performance of such Functions and duties of such officers, agents or employees extraterritorially under the provisions of any such interlocal agreement. 5This, triterlocal Agreement and any dispute, disagreement, or issue of construction, declaration or interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein, performance or breach, shall be governed and interpreted according to laws of the State ofFlorida. Any and all actions necessary to enforce this Interlocal Agreement will be held in St. Lucie County, Florida, 6. Sliiuldai,iypr(iA7isionof'thisiriterlocalAgreenictitbedeclared invalid byaCot,,irtofcoinpeteiit jurisdiction, the same shall be deemed stricken here from and all other terms and conditions of this Interlocal Agreement shall continue in full force and effcct as it'such invalid provision had never been made a part thereof 7. "I'llis Interlocal Agreement constitutes the entire understariding of' the parties and may not be modified, nor any of provisions waived, unless, such modification and/or waiver is in writing and is agreed to and signed by both parties. 8. This Interlocal Agreement shall be signed in triplicate by both parties, and filed fon- record by the COUN]"Y with the Clerk of the Circuit, (,,,oLiiq of St. Lucie County,, Florida pursuant, to Section 16.0 1, Moritla 45Ialules. IN WITNESS WHEREOF, the parties have hereto set their hands and seals on the day and year first above written. St. Lucie COUTAY By: C'hair, Board of County Commissioners S/Ati)ir/Agrecinei5ilInte,taocaPSt, Lucie (`ounly F."rosion DistriO CSRM Applzcv- �s 'Y, 144", St. Lucie County Erosion District By� Chair, Erosion District Page 35 of 36 LEGAL DESCRIPTION (Parcel 100) AN EASEMENTOVER AND ACROSS A PORTION OF LANDS DESCRIBED AND REC'ORDFIN 3471, PAGE 323, LYING IN SFCJJON 12, -FOWNSHIP 37 SOUTH, R;T�GE 41 EAST,'ST. LIJ01" (I "OUNTY, ITORIDA MORE, PARTICULARLY DESCRIBED AS FOLLOWS: ("ONIMENCING ATl 1 111POIN'1'01,']N'1'1a'RSIC'1'10( N OFTFIE EASTERLY R.IGIIT- OF' -WAY LINE 01"'STAT1" ROAD A -]-A (100'RIW) ND `Ill" NORTH LINI:' Ol" GOVERNMENTLO`2 (AS EST'ABLISHEI-) BY PLAT' RI­VORDf�D IN PLA"I" BOOK 15, PNG['111' 13);T1 1ENC.1", ALON(J SAIF) EASTF'RLY RIGHT-OF-WAY I,INE SOUTII 23'6'40" [�.AST, A'r,)js"rAN(,'J,, OF250.00 FEIT,"I'TO A POINTON "rIlE 11O1 111 LINI", 01'1 AND DI'SCRIBIll;D IN OFFICIAL Rl"CORDS BOOK 3471, PAGE 323 01,THE PUBLIC RECORDS OP'ST. LUCIlCOUNTY, FLORIDA; THENCT, ALONG SAID NORTH LI1' Fl,­N0R`I'H 89'49'13" EAST', A DISTANCE OF 368.78 Fl`,El- TO PLACE AND POIXI'01�'BEGINNING' (SAID POI N"I'ALSO 131,1ING ONTHE Wl'ST LINES OF TFI' C,ONSTRUCTION E'ASEMENT PER S1 ETC11 & DE�SCRIPTION PREPARE'D BY M0.RGA1' & EKLUND, INC, DATED 11/30/2020); THENCE CONTINUE ALONG SAID NORTH LINE NORTH 89'49'13" E'AST, A DISTANCE OF 131,24 FTET; THE"NCE SOUTH 28'0754" EAST, A t)is,rAN(.',I,,' OF 176.82 FfUl", TI I ENCESOUT1 123'34'03 " EAST, A DI STANCE OF 9,31 FEIET"FO A POINT O " HE" SOUTH LINE" 01"SAID I, II) DESCRIBED IN OFFICIAL R.1"CORDS 1300K, 3471, PAGE, 323; THENCI ALONG SAID SOUTH LINE SOUTH 89'49'13" WEIS'T, A DISTANCE OF 148.50 FEET';T'l IENCE NORTH 22'56'21 " WEST, A DISTANCI", OF` 178.65 BEGINNING CONTAINING 0.53 ACRES, MORl"' OR LESS m Page 36 of 36