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HomeMy WebLinkAboutR-02-0868J-02-718 7/24/02 RESOLUTION NO. A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A PROJECT COOPERATION AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE U.S. DEPARTMENT OF THE ARMY, FOR THE CONSTRUCTION OF THE VIRGINIA KEY, FLORIDA SECTION III PROJECT, WHICH CONSISTS OF THE CONSTRUCTION OF THREE NEW TIMBER GROINS, REMOVING AND REPLACING 25 TIMBER GROINS AND PLACING APPROXIMATELY 8,000 CUBIC YARDS OF MATERIAL ONTO VIRGINIA KEY BEACHES AND APPROPRIATE MITIGATION, WITH FUNDING AZPROVIDED BY THE FEDERAL GOVERNMENT UP TO A FEDERAL LIMIT OF $5,000,000 AS A TOTAL PROJECT COST AND A ZERO PERCENT (0%) COST TO THE CITY AS THE NON-FEDERAL SPONSOR UP TO SAID LIMIT, AND ONE HUNDRED PERCENT (1000) OF THE COSTS TO BE PROVIDED BY THE CITY FOR BETTERMENTS, MAINTENANCE, OPERATIONS, EASEMENTS OR RELOCATIONS REQUESTED BY THE CITY OR OTHER COSTS NOT COVERED UNDER THE PROJECT COOPERATION AGREEMENT. WHEREAS, construction of the Virginia Key, Florida Section ill Project is part of the overall restoration and renovation of Virginia Key Beach; and WHEREAS, the Project's total cost will be approximately $5,000,000, of which the Federal government shall bear the majority of costs; and ATT A Cie! All E N T f3l V21 (CINIX21 CITY COMIUM-ON MEETING J U !_ 2 5 2002 Resolution NO. 02— 86 WHEREAS, the City shall be the non-federal sponsor as required for the approval of a Section 111 Federal Project; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorizedll to execute a Project Cooperation Agreement, in substantially the attached form, with the U.S. Department of the Army, for the construction of the Virginia Key, Florida Section III Project, which consists of the construction of three new timber groins, removing and replacing 25 timber groins and placing approximately 8,000 cubic yards of material onto Virginia Key Beaches and appropriate mitigation, with funding provided by the Federal government up to a limit of $5,000,000 as a total project cost and a zero percent (0%) cost to the City, the non-federal sponsor up to said amount. Section 3. The City as the non-federal sponsor will be responsible for one hundred percent (100%) of costs associated with betterments, maintenance, operation, easements or relocations requested by the City and other costs not covered under the Project Cooperation Agreement. 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 2.of 3 02- 868 Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayors/. PASSED AND ADOPTED this 25th ATTEST: PRISCILLA A. THOMPSON CITY CLERK APPROVED W6�71:tr:BSS FORM AN -D CORRECTNESS :e day of Jul 2002. Zl IPA=- jM'- 2i If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 3 of 3 02- 868 PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF MIAMI, FLORIDA FOR CONSTRUCTION OF THE SECTION 111 PROJECT AT VIRGINIA KEY, FLORIDA THIS AGREEMENT is entered into this day of , 2002, by and between the DEPARTMENT OF THE ARMY (hereinafter the "Government"), represented by the Assistant Secretary of the Army (Civil Works) and CITY OF MIAMI, FLORIDA (hereinafter the "Non -Federal Sponsor"), represented by the City Manager. WITNESSETH, THAT: WHEREAS, construction of the Virginia Key, Dade County, Florida Section 111 Project at Virginia Key, Dade County, Florida is authorized by Section 111 of the 1968 River and Harbor Act, approved August 13, 1968 (Public Law 90-483), as amended, and specifically for this Project by memorandum of the Commander, South Atlantic Division, on ; and WHEREAS, the Government and the Non -Federal Sponsor desire to enter into a Project Cooperation Agreement for construction of the Virginia Key, Dade County, Florida Section 111 Project (hereinafter the "Project", as defined in Article I.A. of this Agreement); and WHEREAS, Section 101(c) of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies that the cost-sharing requirements applicable to the Project shall be those as applicable to the project causing the erosion; and WHEREAS, Section 940 of the Water Resources Development Act of 1986, Public Law 99-662, amended by Section 214 of the Water Resources Development Act of 1999, P.L. 106-60, limits the amount the Government may expend on a single Section 1 I1 project, without specific congressional authorization, to $5,000,000; and WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended, and Section 103 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, provide that the Secretary of the Army shall not commence construction of any water resources project, or separable element thereof, until each non -Federal sponsor has entered into a written agreement to furnish its required cooperation for the project or separable element; 1 02- 868 WHEREAS, the Government and Non -Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the construction of the Project in accordance with the terms of this Agreement. NOW, THEREFORE, the Government and the Non -Federal Sponsor agree as follows: ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS For purposes of this Agreement: A. The term "Project" shall mean construction of three new timber groins, removing and replacing 25 timber groins and placing approximately 8,000 cubic yards of material onto the beaches of Virginia Key and appronriale mitigation as generally described in the "Section 111 Shoreline Stabilization Report and Draft Environmental Assessment, Virginia Key, Dade County, Florida", dated February 2002 and approved by the Commander, South Atlantic Division on B. The term "total project costs" shall mean all costs incurred by the Government in accordance with the terms of this Agreement directly related to construction of the Project. Subject to the provisions of this Agreement, the term shall include, but is not necessarily limited to: continuing planning and engineering costs incurred after October 1, 1985; advanced engineering and design costs; preconstruction engineering and design costs; engineering and design costs during construction; the costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XV.A. of this Agreement; costs of historic preservation activities in accordance with Article XVII.A. of this Agreement; actual construction costs, including the costs of alteration, lowering, raising, or replacement and attendant removal of existing railroad bridges and approaches thereto; supervision and administration costs; costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; costs of contract dispute settlements or awards; and costs of audit in accordance with Article X of this Agreement. The term does not include any costs for the value of lands, easements, rights-of-way, relocations, and suitable borrow and dredged or excavated material disposal areas or operation, maintenance, repair, replacement, or rehabilitation; any costs due to betterments; or any costs of dispute resolution under Article VII of this Agreement. C. The term "financial obligation for construction" shall mean a financial obligation of the Government that results or would result in a cost that is or would be included in total project costs. D. The term "non -Federal proportionate share" shall mean the ratio of the Non -Federal Sponsor's total cash contribution required in accordance with Article Il. of this Agreement to total financial obligations for construction, as projected by the Government. E. The term "period of construction" shall mean the time from the date the Government first notifies the Non -Federal Sponsor in writing, in accordance with Article VI.B. of this Agreement, of the scheduled date for issuance of the solicitation for the first construction contract to the date that the U.S. Army Engineer for the Jacksonville District (hereinafter the "District Engineer") notifies the Non -Federal Sponsor in writing of the Government's determination that construction of the Project is complete. 10 ONr 868 F. The term "highway" shall mean any public highway, roadway, street, or way, including any bridge thereof. G. The term "bridge over navigable waters of the United States" shall mean a lawful bridge over the navigable waters of the United States, including approaches, fenders, and appurtenances thereto, which is used and operated for the purpose of carrying railroad traffic or both railroad and highway traffic, or if a State, county, municipality, or other political subdivision is the owner or joint owner thereof, which is used and operated for the purpose of carrying highway traffic. H. The term "relocation" shall mean providing a functionally equivalent facility, regardless of the authorized depth of the Project, to the owner of an existing utility, cemetery, highway or other public facility, or railroad (including any bridge thereof), excluding existing bridges over navigable waters, when such action is authorized in accordance with applicable legal principles of just compensation or as otherwise provided in the authorizing legislation for the Project or any report referenced therein. Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant removal of the affected facility or part thereof. I. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. J. The term "functional portion of the Project" shall mean a portion of the Project that is suitable for tender to the Non -Federal Sponsor to operate and maintain in advance of completion of the entire Project. For a portion of the Project to be suitable for tender, the District Engineer must notify the Non -Federal Sponsor in writing of the Government's determination that the portion of the Project is complete and can function independently and for a useful purpose, although the balance of the Project is not complete. K. The term "betterment" shall mean a change in the design and construction of an element of the Project accomplished at the request of the Non -Federal Sponsor resulting from the application of standards that the Government determines exceed those that the Government would otherwise apply for accomplishing the design and construction of that element. L. The term "removal" shall mean eliminating an obstruction (other than a bridge over the navigable waters of the United States) where the Government determines, after consultation with the Non -Federal Sponsor, that : 1) elimination is necessary for the construction, operation, or maintenance of the project, including the borrowing of material or the disposal of dredged or excavated material associated therewith; 2) elimination must be accomplished before the end of the period of construction; 3) the Non -Federal Sponsor, the Commonwealth of Puerto Rico, or the Government has the legal capability to accomplish elimination of the obstruction at the expense of the owner or operator thereof, and 4) eliminating the obstruction is not part of a deep draft utility relocation as defined in paragraph K. of this Article. The term also shall mean the elimination of an obstruction to the construction, operation, or maintenance of the project when such elimination is specifically provided for, and is identified as a removal, in the authorizing legislation for the Project or any report referenced therein. 3 M. The term "borrow areas" shall mean the lands, easements, or rights-of-way together with the improvements necessary on those lands, easements, or rights-of-way to enable the borrowing of material for the construction, operation, or maintenance of the Project. N. The term "utility" shall mean that which the State of Florida Puerto Ricci, pursuant to generally applicable State£-orninamwcalth law, defines as a public utility. ARTICLE II -OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States (hereinafter, the "Congress") and using those funds and funds provided by the Non -Federal Sponsor as may he needed due to the federal expenditure limit of �i 0(10.08(} being* reached, shall expeditiously construct the Project (including alteration, lowering, raising, or replacement and attendant removal of existing bridges over navigable waters of the United States), applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. 1. The Government shall afford the Non -Federal Sponsor the opportunity to review and comment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. The Government shall not issue the solicitation for the first construction contract until the Non -Federal Sponsor has confirmed in writing its willingness to proceed with the Project. To the extent possible, the Government shall afford the Non -Federal Sponsor the opportunity to review and comment on all contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providing the Non -Federal Sponsor with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non -Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non -Federal Sponsor, but the contents of solicitations, award of contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the Government. 2. Throughout the period of construction, the District Engineer shall furnish the Non -Federal Sponsor with a copy of the Government's Written Notice of Acceptance of Completed Work for each contract for the Project. B. The Non -Federal Sponsor may request the Government to accomplish betterments. Such requests shall be in writing and shall describe the betterments requested to be accomplished. If the Government in its sole discretion elects to accomplish the requested betterments or any portion thereof, it shall so notify the Non -Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non -Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all 4 I : 111:11 such costs in accordance with Article V.C. of this Agreement. C. When the District Engineer determines that the entire Project is complete or that a portion of the Project has become a functional portion of the Project, the District Engineer shall so notify the Non -Federal Sponsor in writing and furnish the Non -Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the "OMRR&R Manual") and with copies of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project or the functional portion of the Project that have not been provided previously. Upon such notification, the Non -Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire Project or the functional portion of the Project in accordance with Article VIII of this Agreement. D. In accordance with Article III of this Agreement, the Non -Federal Sponsor shall provide all lands, easements, rights-of-way, suitable borrow areas, or suitable dredged or excavated material disposal areas that the Government determines the Non -Federal Sponsor must provide for the construction, operation, or maintenance of the project, and shall perform or ensure performance of all relocations or deep draft utility relocations that the Government determines to be necessary for the construction, operation, or maintenance of the Project. E. The Non -Federal Sponsor shall contribute 0 percent of total project costs in accordance with the provisions of this paragraph up to the federal expenditure limit of 55.000 000 and 100 percent thereafter--, F. The Non -Federal Sponsor may request the Government to provide lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or perform relocations on behalf of the Non -Federal Sponsor. Such requests shall be in writing and shall describe the services requested to be performed. If in its sole discretion the Government elects to perform the requested services or any portion thereof, it shall so notify the Non -Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non -Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article V.C. of this Agreement. Notwithstanding the provision of lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government, the Non - Federal Sponsor shall be responsible, as between the Government and the Non -Federal Sponsor, for the costs of cleanup and response in accordance with Article XIV.C. of this Agreement. G. The Government shall perform a final accounting in accordance with Article V.D. of this Agreement to determine the contributions provided by the Non -Federal Sponsor in accordance with paragraphs B., E., and F. of this Article and Articles IV, IX, and XIV.A. of this Agreement and to determine whether the Non -Federal Sponsor has met its obligations under paragraphs B., E., and F. of this Article. H. The Non -Federal Sponsor shall not use Federal funds to meet the Non -Federal Sponsor's share of total project costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. 5 02- 868 I. The Non -Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the completed Project, or functional portion of the Project, at no cost to the Government, in a manner compatible with the Project's authorized purposes and in accordance with applicable Federal and State laws and regulations and any specific directions prescribed by the Government. J. The Government shall accomplish all removals that neither the Non -Federal Sponsor nor the State of Florida has the legal capability to accomplish where both the Non -Federal Sponsor and the State of Florida make a written request for the Government to accomplish such removal; and all removals that the Government is expressly required to accomplish in the authorizing legislation for the Project or any report referenced therein. 1. In the event a court determines that the owner of an obstruction is entitled to payment of just compensation as the result of elimination of the obstruction, such removal shall be reclassified as part of the Non -Federal Sponsor's responsibility to provide lands, easements, and rights-of-way, or to perform relocations, as appropriate, pursuant to Article II.12F. of this Agreement. 2. All costs incurred by the Government in accomplishing removals shall be included in the total project costs and shared in accordance with the provisions of this Agreement. K. The Non -Federal Sponsor shall accomplish all removals, other than those removals specifically assigned to the Government by paragraph J. of this Article, in accordance with the provisions of this paragraph. 1. The Government in a timely manner shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of such removals, in detail sufficient to enable the Non -Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -Federal Sponsor with a written notice to proceed with accomplishing such removals. Unless the Government agrees to a later date in writing, prior to the issuance of the solicitation for each Government contract for construction, operation, or maintenance of the Project navigation features, or prior to the Government incurring any financial obligation for construction, operation, or maintenance of the Project that it elects to perform with its own forces, the Non -Federal Sponsor shall accomplish all removals set forth in such descriptions that the Government determines to be necessary for that work. 2. In the event a court determines that the owner of an obstruction is entitled to payment of just compensation as the result of elimination of the obstruction, such removal shall be reclassified as part of the Non -Federal Sponsor's responsibility to provide lands, easements, and rights-of-way, or to perform relocations, as appropriate, pursuant to Article II.DC-. of this Agreement. 3. The documented incidental costs incurred by the Non -Federal Sponsor in accomplishing removals, shall be included in the total project costs, subject to an audit in accordance with Article IX.C. of this Agreement to determine reasonableness, allocability, and allowability of costs, and shared in accordance with the provisions of this Agreement. Incidental costs may include legal and administrative costs (such as owner or operator notification costs, 0 02- 868 public notice or hearing costs, attorney's fees, and litigation costs) incurred by the Non -Federal Sponsor in accomplishing removals, but shall not include any costs that the Non -Federal Sponsor or the State of Florida has the legal capability to require of, assign to, or recover from the owner or operator of the obstruction. ARTICLE III -LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW 91-646 COMPLIANCE A. The Government, after consultation with the Non -Federal Sponsor, shall determine the lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, including those required for relocations, borrow materials, and dredged or excavated material disposal, and including those lands, easements, or rights-of-way that the Government determines to be subject to the navigation servitude. The Government in a timely manner shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non -Federal Sponsor must provide, in detail sufficient to enable the Non -Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -Federal Sponsor with a written notice to proceed with acquisition of such lands, easements, and rights-of-way. Prior to the end of the period of construction, the Non -Federal Sponsor shall acquire all lands, easements, and rights-of- way set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each construction contract, the Non -Federal Sponsor shall provide the Government with authorization for entry to all lands, easements, and rights-of-way the Government determines the Non -Federal Sponsor must provide for that contract. For so long as the Project remains authorized, the Non - Federal Sponsor shall ensure that lands, easements, and rights-of-way that the Government determines to be required for the operation and maintenance of the Project and that were provided by the Non -Federal Sponsor 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 improvements required on lands, easements, and rights-of-way to enable the proper disposal of dredged or excavated material associated with the construction, operation, and maintenance of the Project. Such improvements may include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de -watering pumps and pipes. The Government in a timely manner shall provide the Non -Federal Sponsor with general written descriptions of such improvements in detail sufficient to enable the Non -Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -Federal Sponsor with a written notice to proceed with construction of such improvements. Prior to the end of the period of construction, the Non -Federal Sponsor shall provide all improvements set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non -Federal Sponsor shall prepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in accordance with the approved plans and specifications. C. The Government, after consultation with the Non -Federal Sponsor, shall determine the relocations necessary for the construction, operation, and maintenance of the Project, including those necessary to enable the removal of borrow materials and the proper disposal of dredged or excavated material. The Government in a timely manner shall provide the Non -Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the Non -Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -Federal Sponsor with a written notice to proceed with such relocations. Prior to the end of the period of construction, the Non -Federal Sponsor shall perform or ensure the performance of all relocations as set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non -Federal Sponsor shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that contract. D. The Non -Federal Sponsor shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-way required for the construction, operation, and maintenance of the Project, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. ARTICLE IV -PROJECT COORDINATION TEAM A. To provide for consistent and effective communication, the Non -Federal Sponsor and the Government, not later than 30 days after the effective date of this Agreement, shall appoint named senior representatives to a Project Coordination Team. Thereafter, the Project Coordination Team shall meet regularly until the end of the period of construction. The Government's Project Manager and a counterpart named by the Non -Federal Sponsor shall co-chair the Project Coordination Team. B. The Government's Project Manager and the Non -Federal Sponsor's counterpart shall keep the Project Coordination Team informed of the progress of construction and of significant pending issues and actions, and shall seek the views of the Project Coordination Team on matters that the Project Coordination Team generally oversees. C. Until the end of the period of construction, the Project Coordination Team shall generally oversee the Project, including issues • related to design; plans and specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and modifications; contract costs; the application of and compliance with the Davis -Bacon Act, Contract Work Hours and Safety Standards Act and the Copeland Anti -Kickback Act for relocations; the Government's cost projections; final inspection of the entire Project or functional portions of the Project; preparation of the proposed OMRR&R Manual; anticipated requirements and needed capabilities for performance of operation, maintenance, repair, replacement, and rehabilitation of the Project; and other related matters. This oversight shall be consistent with a project management plan developed by the Government after consultation with the Non -Federal Sponsor. D. The Project Coordination Team may make recommendations that it deems warranted to the District Engineer on matters that the Project Coordination Team generally oversees, including C 02r- 868 suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Coordination Team. The Government, having the legal authority and responsibility for construction of the Project, has the discretion to accept, reject, or modify the Project Coordination Team's recommendations. ARTICLE V -METHOD OF PAYMENT A. Until the Government furnishes the Non -Federal Sponsor with the results of the final accounting, the Government shall maintain current records of contributions provided by the parties and current projections of total project costs and costs due to betterments. At least monthi'quarterlp, the Government shall provide the Non -Federal Sponsor with a report setting forth all contributions provided to date and the current projections of total project costs, of eurrent project exexpenditnres_ of projected remaining jPct coctc_ -of total costs due to betterments, of the components of total project costs, of each party's share of total project costs, of the Non -Federal Sponsor's total cash contributions required in accordance with Articles II.B., II.E., and II.F. of this Agreement, and of the non -Federal proportionate share, of the credit to be afforded pursuant to Article II.J. of this Agreement for the value of lands, easements, rights-of-way, relocations, and suitable borrow areas or suitable dredged or excavated material disposal areas. On the effective date of this Agreement, total project costs areprojected to be $3.000.000(will he 6, and the Non -Federal Sponsor's initial cash contribution required under Article II.D. of this Agreement is projected to be $0. Such amounts are estimates 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. The Government ncrees to provide the Non -Federal Sponsor at lenst 0WITITIYOTIT111 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 both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VII - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION (OMRR&R) A. Upon notification in accordance with Article II.C. of this Agreement and for so long as the Project remains authorized, the Non -Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire Project or the functional portion of the Project, at no cost to the Government, in a manner compatible with the Project's authorized purposes and in accordance with applicable Federal and State laws as provided in Article X of this Agreement and specific directions prescribed by the Government in the OMRR&R Manual and any subsequent amendments thereto. 9 02- 868 B. The Non -Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property that the Non -Federal Sponsor owns or controls for access to the Project for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project. If an inspection shows that the Non -Federal Sponsor for any reason is failing to perform its obligations under this Agreement, the Government shall send a written notice describing the non-performance to the Non - Federal Sponsor. If, after 30 calendar days from receipt of notice, the Non -Federal Sponsor continues to fail to perform, then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property that the Non -Federal Sponsor owns or controls for access to the Project for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project. No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the Non -Federal Sponsor of responsibility to meet the Non -Federal Sponsor's obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to this Agreement. ARTICLE VIII -INDEMNIFICATION The Non -Federal Sponsor shall hold and save the Government free from all damages arising from the construction, operation, maintenance, repair, replacement, and rehabilitation of the Project and any Project -related betterments, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE IX -MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non -Federal Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the Non -Federal Sponsor shall maintain such books, records, documents, and other evidence in accordance with these procedures and for a minimum of three years after the period of construction and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Non -Federal Sponsor shall each allow the other to inspect such books, documents, records, and other evidence. B. Pursuant to 32 C.F.R. Section 33.26, the Non -Federal Sponsor is responsible for complying with the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507, as implemented by Office of Management and Budget (OMB) Circular No. A-133 and Department of Defense Directive 7600.10. Upon request of the Non -Federal Sponsor and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non -Federal Sponsor and independent auditors any information necessary to enable an audit of the Non -Federal Sponsor's activities under this Agreement. The costs of any non -Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. io ' i � C. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Non -Federal Sponsor is required to conduct under the Single Audit Act. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. ARTICLE X -FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non - Federal Sponsor and the Government agree to comply with all applicable Federal and State laws and regulations, including, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army." The Non -Federal Sponsor is also required to comply with all applicable federal labor standards requirements including, but not limited to the Davis -Bacon Act (40 USC 276a et seq), the Contract Work Hours and Safety Standards Act (40 USC 327 et seq) and the Copeland Anti - Kickback Act (40 USC 276c). ARTICLE XI -RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non -Federal Sponsor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. B. In the exercise of its rights and obligations under this Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor either pursuant to any cause of action that such other party may have or for violation of any law. ARTICLE XII -OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE XIII -TERMINATION OR SUSPENSION A. If at any time the Non -Federal Sponsor fails to fulfill its obligations under Article II.B., II.E., II.F., V, or XVII.C. of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the Project 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. 11 02- 868 B. If the Government fails to receive annual appropriations in amounts sufficient to meet Project expenditures for the then -current or upcoming fiscal year, the Government shall so notify the Non -Federal Sponsor in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until such time as the Government receives sufficient appropriations or until either the Government or the Non -Federal Sponsor elects to terminate this Agreement. C. In the event that either party elects to terminate this Agreement pursuant to this Article or Article XIV of this Agreement, both parties shall conclude their activities relating to the Project and proceed to a final accounting in accordance with Article V.D. of this Agreement. D. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XIV of this Agreement shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 -week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3 -month period if the period of delinquency exceeds 3 months. ARTICLE XIV - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the Non - Federal Sponsor shall perform, or cause to be performed, any investigations for hazardous substances that the Government or the Non -Federal Sponsor determines to be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter "CERCLA"), 42 U.S.C. Sections 9601-9675, that may exist in, on, or under lands, easements, and rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of the Project. However, for lands that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the Non -Federal Sponsor with prior specific written direction, in which case the Non -Federal Sponsor shall perform such investigations in accordance with such written direction. All actual costs incurred by the Non -Federal Sponsor for such investigations for hazardous substances shall be included in total project costs and cost shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article IX.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. B. In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of the Project, the Non - Federal Sponsor and the Government shall provide prompt written notice to each other, and the Non -Federal Sponsor shall not proceed with the acquisition of the real property interests until both parties agree that the Non -Federal Sponsor should proceed. 12 C. The Government and the Non -Federal Sponsor shall determine whether to initiate construction of the Project, or, if already in construction, whether to continue with work on the Project, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the construction, operation, and maintenance of the Project. Should the Government and the Non -Federal Sponsor determine to initiate or continue with construction after considering any liability that may arise under CERCLA. the Non -Federal Sponsor shall be responsible, as between the Government and the Non -Federal Sponsor, for the costs of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination. Such costs shall not be considered a part of total project costs. In the event the Non -Federal Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non -Federal Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project. D. The Non -Federal Sponsor and the Government shall consult with each other in accordance with Article IV of this Agreement in an effort to ensure that responsible parties bear any necessary clean up and response costs as defined in CERCLA. Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA. E. As between the Government and the Non -Federal Sponsor, the Non -Federal Sponsor shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Non -Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI -NOTICES A. Any notice, request, demand. or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and either delivered personally or by telegram or mailed by first-class, registered, or certified mail, as follows: If to the Non -Federal Sponsor: City Manager City of Miami 444 SW ,end .Avenue. 1 Oth Floor Miami, Florida 13 02- 868 u � • 1 13 02- 868 __���VHIIPT 444 SN17 ?"d Avenue- Suile ���WVJMHNII• If to the Government: Deputy District Engineer for Programs and Project Management U.S. Army Corps of Engineers, Jacksonville District P.O. Box 4970 Jacksonville, Florida 32232-0019 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XVII -CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. 14 ARTICLE XVIII - HISTORIC PRESERVATION A. The costs of identification, survey and evaluation of historic properties shall be included in total project costs and cost shared in accordance with the provisions of this Agreement. B. As specified in Section 7(a) of Public Law 93-291 (16 U.S.C. Section 469c(a)), the costs of mitigation and data recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in total project costs, up to the statutory limit of one percent of the total amount authorized to be appropriated for the Project. C. The Government shall not incur costs for mitigation and data recovery that exceed the statutory one percent limit specified in paragraph B. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit in accordance with Section 208(3) of Public Law 96-515 (16 U.S.C. Section 469c-2(3)). Any costs of mitigation and data recovery that exceed the one percent limit shall not be included in total project costs but shall be cost shared between the Non -Federal Sponsor and the Government consistent with the minimum non -Federal cost sharing requirements for the underlying navigation purpose, as follows: 0 percent borne by the Non -Federal Sponsor, and 100 percent borne by the Government. ARTICLE XIX — LIMITATION OF GOVERNMENT EXPENDITURES Notwithstanding any other provisions of this Agreement, the Government's financial obligations are limited to $5,000,000. The Non -Federal Sponsor shall be responsible for all total I I&I "-$1 0841611111 Now .• • • • ARTICLE XX - OBLIGATIONS OF FUTURE APPROPRIATIONS A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of future appropriations by the City Commissionevtmci} of the City of Miami, where creating such an obligation would be inconsistent with City Charter and Cede of the Gita_ of N iami B. The Non -Federal Sponsor intends to satisfy its obligations under this Agreement. The Non -Federal Sponsor shall include in its budget request or otherwise propose, for each fiscal period, appropriations sufficient to cover the Non -Federal Sponsor's obligations under this Agreement for each year, and will use all reasonable and lawful means to secure the appropriations for that year sufficient to make the payments necessary to fulfill its obligations hereunder. The Non -Federal Sponsor reasonably believes that funds in amounts sufficient to discharge these obligations can and will lawfully be appropriated and made available for this purpose. In the event the budget or other means of appropriations does not provide funds in sufficient amounts to discharge these obligations, the Non -Federal Sponsor shall use its best efforts to satisfy any requirements for payments under this Agreement from any other source of 15 02-- 868 funds legally available for this purpose. Further, if the Non -Federal Sponsor is unable to satisfy its obligations hereunder, the Government may exercise any legal rights it has to protect the Government's interests related 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 Engineer. THE DEPARTMENT OF THE ARMY Dominic Izzo Principal Deputy Assistant Secretary of the Army (Civil Works) DATE: CITY OF MIAMI, FLORIDA Carlos A. Ginlene7 City Manager TATE: A ttect - Vilarello Prierdla A Thompson City Clerk to City Mminuer',; Attesting it*natitre Aleinndro Vilarello City Attorney as to and Anliroval con•ectne!!S 16 02- 868 CERTIFICATE OF AUTHORITY I, Alejandro Vilarello, do hereby certify that I am the principal legal officer of the City of Miami, Florida, that the City of Miami, 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 the City of Miami, Florida in connection with the City of Miami, Florida Section 111 Project, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 1962d -5b), and that the persons who have executed this Agreement on behalf of the City of Miami, Florida has acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of 2002. Alejandro Vilarello City Attorney Miami, Florida 17 02- 868 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 Section 132, Title 31, U.S. Code. 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. DATE: Carlos A Ginleni7 Mayor City of Miami, Florida .• m041 I • 18 02- 868 CERTIFICATION OF LEGAL REVIEW The draft Section 111 Agreement for the Virginia Key Section 111 Project at Virginia Key, Dade County, Florida has been fully reviewed by the Office of Counsel, USAED, Jacksonville, and is legally sufficient. Items to be checked Local cooperation requirements special Davis bacon Appropriations John Pax Assistant District Counsel 19 02- 868