Res 35-14 RESOLUTION NO. 35-14
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA; PROVIDING ITS SUPPORT
FOR THE CITY OF DELRAY BEACH RENOURISHMENT
PROJECT; PROVIDING FOR ITS ONGOING FUNDING
COMMITMENT TO PROVIDE FOR THE LOCAL MATCH;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS,America's beaches provide vital economic,recreational, storm damage
reduction, and environmental benefits to the nation; and
WHEREAS, nearly sixty percent of all Americans live within 50 miles of the Atlantic and
Pacific Oceans, the Gulf of Mexico,and the five Great Lakes;and
WHEREAS, the nation's beaches are the leading tourist destination for millions of domestic
and foreign visitors, providing jobs and business profits which in turn produce billions of dollars of
tax revenues for federal, state and local governments;and
WHEREAS, the City Commission of the City of Delray Beach continues to support the
City of Delray Beach's renourishinent project regarding its beaches;and
WHEREAS, the City of Delray Beach has the ability to provide the necessary local match
through an Interlocal Agreement with Palm Beach County.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS:
Section 1. That the City of Delray Beach is providing its support for the City of Delray
Beach renoutishment project and affirms its ability to provide the necessary local match for its
funding request through an Interlocal Agreement with Palm Beach County.
Section 2. This resolution shall take effect immediately upon adoption.
I
PASSED AND ADOPTED this L q4- d&y of 1
AYOR
ATTEST:
City Clerk
Coversheet Page 1 of 2
•
MEMORANDUM
TO: Mayor and City Commissioners
FROM: Environmental Services Department
Bob Diaz, Construction Manager
Rafael Ballestero, Deputy Director of Construction
Randal Krejcarek, P.E., Director of Environmental Services Department
THROUGH: Terry Stewart, Interim City Manager
DATE: August 1, 2014
SUBJECT: AGENDA ITEM 8.H.-REGULAR COMMISSION MEETING OF AUGUST 19.2014
RESOLUTION NO.35-14/BEACH RENOURISHMENT PROJECT
BACKGROUND
This Resolution affirms the City's support of the funding commitment for the local share of the Delray
Beach Renourishment project. This local share is provided by Palm Beach County pursuant to an
interlocal agreement dated July 10, 2013. The Florida Department of Environmental Protection (FDEP)
is undergoing its annual update of the Florida Beach Management Program Long-Range Budget Plan
and developing a prioritized list of State Beach Erosion Control Projects. The culmination of this
process is the preparation and submittal of the Department's Fixed Capital Outlay, containing Local
Government Funding requests to establish State funding priorities for FY 2015-16. On July 15, 2014,
City Commission approved a Service Authorization with Coastal Planning and Engineering to prepare
the detail project descriptions and cost estimates for the ongoing Delray Beach Renourishment Project.
Along with this information the FDEP requires a resolution of support and acknowledgment of funding
commitment for the local share. The attached resolution meets this requirement. The resolution does not
commit the City to proceed with the beach renourishment fill project in any specific year.
LEGAL DEPARTMENT REVIEW
Approved as to form and legal sufficiency.
FINANCIAL DEPARTMENT REVIEW
Finance recommends approval.
DISCUSSION
This is a request for City Commission to approve the resolution of support for the Delray Beach
Renourishment Project.
http://itwebapp/Agendalntranet/Bluesheet.aspx?ItemID=8246&MeetingID=521 12/8/2014
Coversheet Page 2 of 2
TIMING OF THE REQUEST
This is a time sensitive item.
RECOMMENDATION
By motion, approve Resolution No. 35-14 supporting the Delray Beach Renourishment Project.
http://itwebapp/Agendalntranet/Bluesheet.aspx?ItemID=8246&MeetingID=521 12/8/2014
RESOLUTION NO. 35-14
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA; PROVIDING ITS SUPPORT
FOR THE CITY OF DELRAY BEACH RENOURISHMENT
PROJECT; PROVIDING FOR ITS ONGOING FUNDING
COMMITMENT TO PROVIDE FOR THE LOCAL MATCH;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, America's beaches provide vital economic, recreational, storm damage
reduction, and environmental benefits to the nation; and
WHEREAS, nearly sixty percent of all Americans live within 50 miles of the Atlantic and
Pacific Oceans, the Gulf of Mexico, and the five Great Lakes;and
WHEREAS, the nation's beaches are the leading tourist destination for millions of domestic
and foreign visitors, providing jobs and business profits which in turn produce billions of dollars of
tax revenues for federal, state and local governments;and
WHEREAS, the City Commission of the City of Delray Beach continues to support the
City of Delray Beach's renourishment project regarding its beaches; and
WHEREAS, the City of Delray Beach has the ability to provide the necessary local match
through an Interlocal Agreement with Palm Beach County.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS:
Section 1. That the City of Delray Beach is providing its support for the City of Delray
Beach renourishment project and affirms its ability to provide the necessary local match for its
funding request through an Interlocal Agreement with Palm Beach County.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this day of
MAYOR
ATTEST:
City Clerk
0
R94 13570
INTERLOCAL AGREEMENT BETWEEN PALM BEACH
COUNTY AND THE CITY OF DELRAY BEACH
THIS AGREEMENT is made and entered into on the day of OCT 0 4 1994
1994, by and between PALM BEACH COUNTY, a political -subdivision of the State of
Florida, (the "COUNTY"), and the CITY OF DELRAY BEACH, a municipal corporation
in the State of Florida, (the "CITY"), each one constituting a public agency as defined in
Part I of Chapter 163, Florida Statutes.
WITNESSETH
WHEREAS, Section 163.01, Florida Statutes, known as the "Florida Interlocal
Cooperation Act of 1969" authorizes local governments to make the most efficient use of
their powers by enabling them to cooperate with other localities on a basis of mutual
advantage and thereby to provide services and facilities that will harmonize geographic,
economic, population and other factors influencing the needs and development of local
communities; and
WHEREAS, Part I of Chapter 163, Florida Statutes, permits public agencies as
defined therein to enter into interlocal agreements with each other to jointly exercise any
power, privilege, or authority that such agencies share in common and that each might
exercise separately; and
WHEREAS, pursuant to Chapter 125.01, Florida Statutes, the Board of County
Commissioners is empowered to establish and administer programs of beach erosion control
and to enter into agreements with other governmental agencies within or outside the
boundaries of the COUNTY for joint performance, or performance of one unit on behalf
of the other, of any of either governmental entity's authorized functions; and
WHEREAS, pursuant to Chapter 166, Florida Statutes, the CITY is empowered to
exercise any governmental, corporate, and proprietary power for municipal purposes, except
when expressly prohibited by law; and
WHEREAS, in 1973 the CITY completed a beach restoration project for the City
of Delray Beach municipal beach through the use of hydraulic dredging. Thereafter, the
CITY also performed maintenance nourishments in 1978, 1984, and 1992 in order to
maintain the Delray Beach Shore Protection Project. A more complete history of the
project is found in attached Exhibit "A"; and
h " 2
41
E,%VJf?GNMEiN4TA'L RESOURUS
Ili 1.1
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ti MEMRIT
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WHEREAS,the CITY and COUNTY entered into an Intergovernmental Agreement
on February 27, 1973, as amended by Addendum Agreement dated August 16, 1977, and
supplemented by agreements dated November 8, 1983 and October 13, 1992, which provide
for joint funding of the Delray Beach Shore Protection Project; and
WHEREAS, the CITY and COUNTY have a long-standing partnership in the
preservation, maintenance and enhancement of the Delray Beach Shore Protection Project;
and
WHEREAS, the Intergovernmental Agreement expired September 30, 1993; and
WHEREAS, on September 23, 1992, pursuant to Chapter 125, Florida Statutes, the
COUNTY entered into an agreement with the United States of America, Army Corps of
Engineers, to become the local cooperating agency for shore protection projects within
Delray Beach for a period of fifty (50) years from the date of the initial restoration; and
WHEREAS, the CITY and COUNTY intend to make the most efficient use of their
powers by cooperating with each other in the maintenance and repair of the Delray Beach
Shore Protection Project, which includes the area described in attached Exhibit "B", within
the municipal limits of the City of Delray Beach, Florida; and
WHEREAS, the CITY and COUNTY desire to establish their respective roles in the
Delray Beach Shore Protection Project to make the most efficient use of their respective
resources.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations herein, the parties agree as follows:
1. Purpose of the Agreement. The purpose of this Agreement is to provide a
mechanism for the funding and maintenance of the Delray Beach Shore Protection Project
(the "PROJECT"), and to set forth the terms, conditions and obligations of each of the
respective parties hereto.
2. The Project.
a. -Description. The Project to be undertaken consists of the initial
restoration of the City of Delray Beach municipal beach, as legally described in Exhibit "B",
and subsequent repairs and maintenance nourishments thereto. Repairs and maintenance
nourishments shall be designed and scheduled to retain the "Project Design Section" as
defined herein, and to satisfy the conditions and standards of any and all required permits.
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b. Project Components. Project components include, but are not limited
to, construction, design, beach performance monitoring, and environmental monitoring. A
typical list of the Project components from the completion of one maintenance nourishment
through the completion of another maintenance nourishment is provided in attached Exhibit
,f C„ I
C. Project Design Section. The Project Design Section is defined as that
beach area described in attached Exhibit "13".
3. Term. The term of this Agreement shall be from October 1, 1993 up to and
through September 30, 2023 unless otherwise terminated as provided herein.
4. Funding. The parties agree that given the extensive scope of the Project, the
timely availability of funding is of critical concern. Funding for a portion of the Project is
currently available, on a reimbursement basis, by appropriation from the Federal and State
governments. These funding sources will be used to the maximum extent possible to defray
Project costs.
a. CITY Obligations.
(1) No later than January 15th of each year, the CITY shall
submit to the COUNTY a list of the anticipated tasks to be undertaken in the succeeding
fiscal year, including estimated costs.
(2) The CITY shall establish and maintain a dedicated
funding source for implementation of the Project. This funding source is currently called
the Beach Restoration Fund.
(3) The CITY shall pay all expenses of the Project from the
Beach Restoration Fund in anticipation of reimbursement from the Federal and State
governments, and the COUNTY.
(4) The CITY shall maintain adequate records to justify all
charges, expenses, and costs incurred in performing the Project for at least three (3) years
after completion of the Project or termination of the Agreement,whichever occurs last. The
COUNTY shall have access to all books, records and documents related to the Project as
required in this paragraph for the purpose of inspection or audit during normal business
hours.
(5) The CITY shall submit requests for State and Federal
funding assistance. The CITY shall timely notify the COUNTY of the submittal of such
requests and seek the COUNTY's support.
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(6) The CITY shall cooperate with the COUNTY to assure
that the requirements and standards contained in the agreement between the COUNTY and
the United States of America, Army Corps of Engineers are complied with and maintained.
(7) The CITY shall properly prepare and submit in a timely
manner any and all applications for State and Federal permits required for the Project,
b. County Obligations.
(1) The COUNTY shall serve as cooperating agency pursuant
to its agreement with the United States of America,Army Corps of Engineers, (see attached
Exhibit "E") and assume the responsibility for local cooperation in the Project.
(2) The COUNTY shall appropriate funds to cover the local
share expenses on an annual basis in order that the funds are available to pay for expenses
associated with the Project. The amount of funding by the COUNTY will depend upon the
physical condition of the Project,which the parties acknowledge will change. Therefore, the
COUNTY shall draft a yearly funding memorandum. The yearly funding memorandum will
include a list of the anticipated tasks, along with estimated costs for each task, and a
commitment to include the funding request in the proposed budget.
(3) The COUNTY shall submit to the CITY a memorandum
of commitment indicating that COUNTY has appropriated the required funds that the CITY
requests in the next year's budget. Notwithstanding any other provision herein, the
COUNTY's obligation to pay under this Agreement is contingent upon an appropriation for
its purpose by its Board of County Commissioners in its annual Fiscal Year budget.
(4) The COUNTY shall be responsible for all local share
(e.g., non-Federal and non-State) expenses of the Project, including design, construction and
monitoring, by way of reimbursement to the CITY.
(5) For reimbursement to occur, the CITY shall submit
invoices to COUNTY that shall include a reference to this Agreement, identify the Project,
and identify the amount due and payable to the CITY. Invoices shall be itemized in
sufficient detail for prepayment audit thereof. The CITY shall supply any further
documentation deemed necessary by the COUNTY. Invoices received from the CITY shall
be reviewed and approved by the Department of Environmental Resources Management,
shall indicate that expenditures have been made in conformity with this Agreement, and will
be sent to the COUNTY's Finance Department for final approval and payment. Invoices
will normally be paid within sixty (60) days following receipt.
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C. Joint Responsibilities. The CITY and the COUNTY shall endeavor
to be joint applicants for State and Federal funding for the Project. The COUNTY will
support CITY's funding requests in the same manner as if the request came from the
COUNTY, and the CITY will support the COUNTY's funding requests in the same manner
as if the request came from the CITY.
5. Project Permitting. The parties recognize that prior to the commencement of
any construction affecting the Project that both the State and Federal governments will
require permits and approvals. Acquisition of Federal and State permits and approvals is
part of the design component of the Project. At this time, such permits and approvals
include:
a. Dredge and fill permit from the Army Corps of Engineers;
b. Dredge and fill permit(s) from the Florida Department of
Environmental Protection; and,
C. Submerged Lands Easement from the Florida Bureau of State Lands.
The CITY and COUNTY shall endeavor to be joint applicants for any and all permits
required by the State and Federal governments. The COUNTY shall assist the CITY in
negotiating the terms and conditions for permits, and shall assist the CITY in efforts to gain
timely issuance of the required State and Federal permits.
The parties acknowledge that, as a County project, the Project is exempt from applicable
COUNTY ordinances.
6. Project Timing. The CITY, in consultation with the COUNTY, shall establish
the schedule for implementing the various Project tasks, including design, monitoring and
construction. The CITY shall provide the COUNTY with a copy of the Project schedule
once the schedule is complete.
7. Design and Monitoring. The CITY shall provide design and monitoring
services for the Project, including but not limited to those listed and defined on attached
Exhibit "C". At such time when the COUNTY has sufficient resources to perform all or
part of the design and monitoring services in a more cost-efficient and time efficient
manner, the CITY shall endeavor to have the COUNTY perform said design and
monitoring services.
S. Bidding and Construction.
a. The CITY shall secure competitive bids by advertisement for all work
to be performed by contractors, except as provided for in previously executed agreements.
The CITY will endeavor to combine the bidding and construction of the Project with
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COUNTY projects for the purpose of securing a more competitive bid from contractors.
The CITY shall meet with the COUNTY six months prior to the proposed date of project
construction to examine the potential cost savings for joint bidding of multiple projects.
b. The CITY shall submit to the COUNTY a detailed estimate of cost,
a tabulation of all bids received, and a copy of the contract of the lowest, responsible,
responsive bidder as well as any amendments or modifications thereof.
9. Party Representatives. The COUNTY's representative/contract monitor
during the term of this Agreement shall be Mr. Richard E. Walesky, whose telephone
number is (407) 355-4011.
The CITY's representative/contract monitor during the term of this
Agreement shall be Mr. John Walker, whose telephone number is (407) 243-7321.
10. Notices. All notices required under this Agreement shall be forwarded, in
writing to:
Board of County Commissioners City Manager
of Palm Beach County City of Delray Beach
Governmental Complex 100 N.W. lst Avenue
301 N. Olive Avenue Delray Beach, FL 33444
West Palm Beach, FL 33401
and with a copy to:
Palm Beach County Department of City Attorney
Environmental Resources Management City of Delray Beach
3111 S. Dixie Hwy., Site 146 100 N.W. 1st Avenue
West Palm Beach, FL 33405 Delray Beach, FL 33444
with a copy to:
County Attorney
Palm Beach County
P.O. Box 1989
West Palm Beach, FL 33401-1989
11. Default and Opportunity to Cure. The parties hereto expressly covenant and
agree that in the event either party is in default of its obligations herein, the party not in
default shall provide to the party in default thirty (30) days written notice to cure said
default before exercising any of its rights as provided for in this Agreement.
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12. Delegation. Nothing contained herein shall be deemed to authorize the
delegation of the constitutional or statutory duties of state, county, or city officers.
13. B . A copy of this Agreement shall be filed with the Clerk of the Circuit
Court in and for Palm Beach County.
14. Liability. The parties to this Agreement and their respective officers and
employees shall not be deemed to assume any liability for the acts, omissions, or negligence
of the other party. Further, nothing herein shall be construed as a waiver of sovereign
immunity by either party, pursuant to Section 768.28, Florida Statutes.
15. Indemnification. Each party shall be liable for its own actions and
negligence and, to the extent permitted under Florida law, COUNTY shall indemnify,
defend and hold harmless CITY against any actions, claims or damages arising out of
COUNTY's negligence in connection with this Agreement, and CITY shall indemnify,
defend and hold harmless COUNTY against any actions, claims or damages arising out of
CITY's negligence in connection with this Agreement. However, nothing in this paragraph
shall be interpreted as a waiver of CITY's or COUNTY's sovereign immunity.
16. Insurance. The CITY shall, during the term of this Agreement, and any
extensions hereof, maintain in fall force and effect general and property insurance, which
specifically covers all exposures incident to the intent and responsibilities under this
Agreement. Such insurance shall be in an amount to support the CITY's agreement of
indemnity. The CITY's insurance shall not be canceled, limited or non-renewed until after
thirty (30) days' written notice has been given to the COUNTY. Current certificates of
insurance or other document evidencing required coverage must be on file with the
COUNTY at all times. CITY expressly understands and agrees that any insurance
protection furnished by CITY shall in no way limit its responsibility to indemnify and save
harmless COUNTY under the provisions of paragraph 15 of this Agreement.
17. Equal ual Opportunity. The COUNTY and the CITY agree that no person shall,
on the grounds of race, color, sex, national origin, disability, religion, ancestry, marital status,
or sexual orientation be excluded from the benefits of, or be subjected to any form of
discrimination under, any activity carried out by the performance of this Agreement.
18. Severability. In the event that any section, paragraph, sentence, clause, or
provision hereof is held by a court of competent jurisdiction to be invalid, such shall not
affect the remaining portions of this Agreement and the same shall remain in full force and
effect.
19. Waiver of Breach. It is hereby agreed to by the parties that no waiver of
breach of any of the covenants or provisions of this Agreement shall be construed to be a
waiver of any succeeding breach of the same of any other covenant.
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20. Termination and Revision. Either party may terminate this Agreement by
giving thirty (30) days prior written notice. In the event the COUNTY revises its policy
relating to the funding of shore protection projects, either party may request that this
Agreement be modified to reflect said change in policy.
21. Entirety of Agreement. The CITY and COUNTY agree that this Agreement,
together with any attached exhibits, sets forth the entire agreement between the parties, and
that there are no promises or understandings other than those stated herein. None of the
provisions, terms or obligations in the Agreement may be added to, modified, superseded,
or otherwise altered, except by written instrument executed by the parties hereto.
IN WITNESS WHEREOF, the County of Palm Beach, Florida has caused this
Agreement to be signed by the Chairperson of the Board of County Commissioners and the
seal of said Board to be affixed hereto and attested by the Clerk of said Board, pursuant to
authority granted by said Board, and the City of Delray Beach has caused this Agreement
to be signed in its corporate name by its mayor and its corporate seal to be affixed hereto,
attested by its City Clerk, the date and year first above written.
CITY OF DELRAY BEACH, FLORIDA PALM BEACH COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMI SIUN RS:
By: By:
Th'oma,s-�ch, Mayor Q 0 4 1994
R94 13570
ATTEST: ATTEST:
Dorothy H. Wilken, Clerk
Deja Clerk
City Clerk .0'J"V
DATE DATE OCT 0 4 1994
0: C 0 UiN T Y,
A,
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY 0 S
By: t, By:
City Attorney Cod ty Attorrr(cy
EXHIBIT "A"
PROJECT HISTORY
Construction History
Delray Beach is historically in a state of erosion. Several
times in recent history, from the late 1940 ' s into the 1960's,
storm damage has impacted shoreline structures and AR AIA. By
the mid-1960s, erosion had taken virtually all the beach and
dune system. The remnants offered little storm protection and a
marginal recreation beach.
Various structural methods were attempted to stabilize the
shoreline. A rock rubble revetment was placed by the Florida
Department of Transportation in 1965 to protect SR AlA from
Atlantic Ave north. In 1966, The City installed a sloping
revetment of interlocking concrete blocks from a point 1000 feet
north of Atlantic Ave. to a point 4800 feet north of Atlantic
Ave. A number of private citizens installed seawalls. All
structural solutions were ineffective.
In 1973, the City constructed an initial beach restoration,
placing 1. 6 million cubic yards of sand in a 2.7 mile project
area by hydraulic dredging from an offshore borrow area. This
project area included nearly the entire City limits.
The total cost Of initial restoration was $3 million, including
land acquisition, engineering, construction and vegetation. The
City issued bonds in the amount of $2 million to finance the
project and established a special account for beach project
expenditures. Federal and State sources reimbursed a portion of
the cost as follows:
Federal $ 935,000
State $ 976,000
County --
City $1, 104,000
Maintenance nourishment projects are required to retain the
design beach section and to place advance fill predicted to
erode in the interval between projects. Yearly erosion loss in
the project area is approximately 100,000 cubic yards . The
scope of each maintenance nourishment is designed to optimize
recreation and storm protection benefits and the economic
efficiency of construction. The following maintenance
nourishments have been constructed:
1978 700,000 cubic yards 1.7 mile project area
Total cost $1 . 6 million
Federal share $660,000
State share $440,000
County share $400,000
City share $ 92,000
1984 1, 300,000 cubic yards 2 .7 mile project area
Total cost $4,246,000
Federal share $1,868,000
State share $1,409,000
County share $ 969,000 $178,000
City share financing cost
1992 1,052,000 cubi c yards 1.7 mile project area
Total Cost $5,082,551
Federal share $2,696,393
State share $1,451,606
County share $ 773,599 $160,953
City share financing cost
Count ory
on February 27, 1973, The city entered I into an agreement with
Palm Beach County, whereby:
The City would construct, fund and maintain the beach
restoration project.
The City would furnish all project cost and thereafter
apply for Federal and State reimbursement.
The County would continue to serve as the Local Cooperating
Agency as required in the Local Cooperation Agreement with
the Army Corps of Engineers.
The County would participate financially in the funding of
the anticipated maintenance and nourishment cost Of the
project up to a maximum $80,000 per year for the ten year
life of the agreement.
The County would establish a trust fund for the project.
An Addendum dated August 16, 1977, clarified the 1973 agreement
by expressing the financial commitment of the County to be an
average $80,000 per year on an aggregate, not to exceed $800,00
over the ten year life of the agreement. In addition, the
County's share of the total project cost would be the remainder
after reimbursement of Federal and State cost shares.
The funding agreement between the City and County was extended
and amended on November 8, 1983 . The extension was for ten
years, until September 30, 1992 . The agreement modified the
maximum financial commitment of the County to $200,000
annually, not to exceed $2,000,000 over the ten year period of
the agreement.
The City and County entered into a new one year agreement
October 13, 1992 which Expires September 30, 1993. This
agreement:
Recognizes the expanded capability of the County in the
field of coastal management.
Acknowledges the County's- continued role as local sponsor
for the project in the new Local Cooperation Agreement with
the Army Corps of Engineers.
Recognizes an expanded partnership relationship between the
City and County which will result in closer coordination of
the city and County coastal projects.
Continues the County' s commitment to reimburse the local
share of project costs to the City.
Dune System
In addition to beach restoration, the City has recreated a
functional dune system along the municipal beach. In 1974,
after the initial beach restoration, the City began a program of
dune reconstruction and maintenance. Using dune vegetation and
sand fencing, several feet of wind-blown sand were trapped to
form the beginnings of a dune. Pedestrian accesses were
established at this time at beach grade. Fencing defined the
accesses and protected vegetation. In 1980, additional
vegetation was installed to angle pedestrian accesses to the
southeast. In addition, sand fencing was added seaward of the
dune to create a f oredune- In 1982, sea oats were planted in
the f oredune. The current (1993) dune is approximately eight
feet higher than the beach berm, with a 100 foot wide base
including the foredune. This results in a low, wide dune system
consisting of two distinct dunes, the original, primary dune and
the for6dune vegetated entirely in pioneer species.
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EXHIBIT "B"
DELRAY BEACH
LIMITS OF BEACH RESTORATION
A parcel of submerged or emerged land in Sections 91 10, 15, 16, 21,
and 28, Township 46 South, Range 43 East, Delray beach, Palm Beach
County, Florida, bounded on the West by the Erosion Control Line to
wit:
commencing at the East quarter corner of said Section 9,
Township 46 south, Range 43 East, said point having for its
coordinates X=808474.350 Y=779887 .637 in the Florida State
Plane Coordinate System, East Zone; thence run N89'014 '25"E
54 . 98 feet along an easterly extension of the north line of the
Southeast one-quarter of said Section 9 to a point; thence run
S V1610511W 293.67 feet to a point; thence run N88'055 ' 37"E
329 .96 feet to the Point of Beginning said point having for its
coordinates X=808816.995 Y=779603.928 in said Florida State
Plane Coordinate System East Zone; thence run S 91126128"W
865 .65 feet to a point; thence run S 7'024125"W 1512.62 feet to
a point; thence run S 8"111139"W 1262.89 feet to a point; thence
run S7" 58111"W 1514.63 feet to a point; thence run S 4101712111W
1002 . 81 feet to a point; thence run S 7'041118"W 1009.07 feet to
a point;, thence run S 6115013411W 1007. 17 feet to a point; thence
run S 5'042138"W 1004.99 feet to a point; thence run S 21017126"W
1000. 80 feet to a point; thence run S 9'038153"W 1014.35 feet to
a point; thence run S 6 *50134"W 1510.76 feet to a point; thence
run S 5108134"W 1506.06 feet to a point; thence run S 6-09151"W
1802 . 49 feet to a point of termination of herein described line
said point having for its coordinates X=806941.455 Y=763707 . 932
in said Florida State Plane Coordinate System, East Zone;
thence on a tie line run West 512. 10 feet to a point; thence
run S 89'030152"W 741.59 feet to a point; thence run S
89°27158"W 1312 .59 feet to a point on the south line of the
Northwest one-quarter (NW 114) of said Section 28; thence run S
89°32118"W 965. 62 feet along said line to the West quarter
corner of said Section 28,
bounded on the East by a line lying 600 feet easterly from and
parallel to said Erosion Control Line and bounded on the North and
South by lines having a bearing of East, running through the Point
of Beginning and the Point of Termination respectively.
T:\Advanced\beach
EXHIBIT "C"
TYPTrAt. VQn.jFrT COMPONENTS
Annual beach performance monitoring
Post construction environmental monitoring
Update geotechnical data
Preliminary engineering
Final engineering
Pre-construction environmental monitoring
Bidding and negotiations
Construction phase engineering
Pre- and Post construction surveys
Construction environmental monitoring
Beach nourishment construction
T:\advanced\AGREE4 .DOC
30
y 20
z DESIGN PROFILE
d lo -
w
w
-10
-20
o 200 400 600 800 1000
RANGE (FEET)
NOTE : DESIGN WIDTH DIARIES AS A RESULT OF PREVIOUS SHORELINE
HARDENING. EEN THE NORTH CITY I IMIT AND R 182 THE WIDTH
EXTENSION IS 100 FEET FROM THE ECL AT +9 FT. t ETrVE N R 183
TO THE SOUTH CITY LIMIT THE DESIGN WIDTH IS 100 FT. EXTENSION
FROM THE ECL AT TIME MEAN HIGH WATER LINE.
EXHIBIT D
TYPICAL DESIGN CROSS--SECTION
SHIT " „
' LOCAL COOPERATION AGREEMENT
12830
LOCAL COOPERATION AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
PALM BEACH COUNTY, FLORIDA
FOR CONSTRUCTION 7N OF THE
DELRAY BEACH SEGMENT
F THE
PALM BEACH COUNTY, FLORIDA
SHORE PROTECTION ION PR{ CT"
THIS AGREEMENT is entered into this day of . ,
1992, by and between the DEPARTMENT OF THE ARMY, (hereinafter
referred to as the "Government") , acting by and through the
Assistant Secretary of the Army (Civil Works) , and PALM BEACH
COUNTY, FLORIDA (hereinafter referred to as the "Local Sponsor") ,
acting by and through its Board of County Commissioners.
WITNESETH THAT:
WHEREAS, construction of the share protection project for
Palm Beach County, Florida from Martin County line to Lake Worth
Inlet and from South Lake Worth Inlet to Broward County Line
(hereinafter referred to as the "Authorized Project") was
authorized by Section 101 of the River and Harbor Act of October
3, 1962 (Public Law 87-874) in accordance with the
recommendations of the Chief of Engineers as set forth in House
Document No. 164, 87th Congress; and
WHEREAS, construction of the Delray Beach Segment of the
Authorized Project was completed in 1973 by Palm Beach County,
.Florida as authorized by Section 142 of the River and Harbor Act
of 1962 (Public Law 87-874) ; and
WHEREAS, Section. 156 of Public Law 4-587, as amended by
Section 934 of Public Law 99-662, authorizes the Government to
extend participation in shore protection projects for a period
not to exceed Nifty bear's from the date of initial construction;
and
WHEREAS, the Local Sponsor desires to enter into this
Agreement providing for extended Government participation in the
Delray Beach Segment of the Authorized Project from 15 years to
50 years, and
WHEREAS, on March 1, 1991 the Assistant Secretary of the
Army (Civil Works) authorized the extension of Government
participation in the Delray Beach Segment of the Authorized
Project (hereinafter referred to as the "Project" ) from 15 years
to 50 years in accordance with Section. 934 of Public Law 9-662;
Page 1
and
WHEREAS, the Project is generally described in the General
Design Memorandum entitled "Palm Beach County, Florida, From
Martin County Line to Lake Worth Inlet and From South Lake Worth
Inlet to Broward County Line, General Design Memorandum Addendum
for Third Periodic Nourishment at Delray Beach, with
Environmental Assessment* (hereinafter referred to as the IIGDM*) ,
approved by the Assistant Secretary of the Army (Civil Works) on
IT 542 . ber- /?,ft- ; and
WHEREAS, Section 103 (c) (5) of the water Resources
Development Act Of 1986, Public Law 99-662, as amended, specifies
the cost-sharing requirements applicable to construction of the
Project; and
WHEREAS, Section 221 of the Flood Control Act of 1970,
Public Law 91-611, as amended, provides that the construction of
any water resources project shall not be commenced until the non-
federal interest has entered into a written agreement to furnish
its required cooperation for the Project; and
WHEREAS, the Local Sponsor has the authority and capability
to furnish the cooperation hereinafter set forth and is willing
to participate in cost-sharing and financing in accordance with
the terms of this Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I DEFINITIONS AND GENERAL PROVISIONS
For purposes of this Agreement:
a. The term "Project" shall mean the periodic beach
nourishment of the Delray Beach segment of the Authorized Project
to maintain a general width of 100 feet with a berm elevation of
plus 9. 0 feet NGVD for the 2 . 65 miles of beach that lies within
the corporate limts of the City of Delray Beach.
b. The term *total project costs' shall mean all costs
incurred by the Local Sponsor and the Government directly related
to construction of the Project . Such costs shall include, but
not necessarily be limited to, continuing planning and
engineering costs incurred after October 1, 1985; costs of
applicable engineering and design; costs of environmental
investigations for hazardous substances; costs of periodic
nourishment; surveillance costs incurred after the date of
execution of this Agreement; supervision and administration
costs; costs of contract disputes settlements or awards; and the
value of lands, easements, rights-of-way, utility and facility
alterations or relocations, and dredged material disposal areas
provided for the Project by the Local Sponsor, but shall not
Page 2
include any Costs for betterments, operation, repair,
maintenance, replacement, or rehabilitation.
C. The term "surveillance" shall mean monitoring of the
beach to determine when future nourishment must be accomplished
to maintain the Project . Surveillance includes performing beach
profile surveys, aerial photography, sediment sampling,
hydrographic surveys, tidal data, environmental data, analysis
and preparation of a report, if needed, as generally described in
the GDM.
d. The term "periodic nourishment" shall mean the placement
of suitable beachfill material along the Project beach during the
authorized periodic nourishment period. Periodic nourishment
will be based on an average annual placement of approximately
100, 000 cubic yards as generally described in the Reevaluation
1,
Study, Delray .Beach Segment, dated May 1990 and approved March
1991, unless the Government, in cooperation with the Local
Sponsor, determines that such periodic nourishment is either not
technically necessary or economically justified at that time.
e. The term "authorized periodic nourishment period" shall
mean the extended 35 year period of Federal participation in the
project.
f. The term "Contracting officer* shall mean the District
Engineer for the Jacksonville District, u.S. Army Corps of
Engineers, or his designee.
g. The term "highway" shall mean any highway, thoroughfare,
roadway, street, or other public road or way.
h. The term *relocations" shall mean the preparation of
plans and specifications for, and the accomplishment of all
alterations, modifications, lowering or raising in place, and/or
new construction related to, but not limited to, existing:
railroads, highways, bridges, railroad bridges and approaches
thereto, pipelines, public utilities (such as municipal water and
sanitary sewer lines, telephone lines, and storm drains) , aerial
utilities, cemeteries, and other public facilities, structures,
and improvements determined by the Government to be necessary for
the construction, operation, maintenance, repair, replacement,
and rehabilitation of the Project .
i . The term "fiscal year" shall mean one fiscal year of the
United States Government, unless otherwise specifically
indicated. The Government fiscal year begins October 1st and
ends on September 30th.
j . The to "involuntary acquisition" shall mean the
acquisition of lands, easements, and rights-of-way by eminent
domain.
Page 3
k. The term "functional portion of the Project• shall mean
a completed portion of the Project as determined by the
Contracting officer, in writing, to be suitable for operation and
maintenance by the Local Sponsor. In making this determination,
the Contracting officer must conclude that the completed portion
of the project can function independently and for a useful
purpose although the balance of the project may be incomplete.
1 . The term "betterments" shall mean construction of any
additional features desired by the Local Sponsor which are not
authorized as part of the Federal project. The construction cost
of such items and their operation, maintenance, repair,
replacement, and rehabilitation costs shall not be considered a
cost of the Project and shall be borne entirely by the Local
Sponsor.
Article II - OBLIGATIONS OF THE PARTIES
a. The Local Sponsor shall perform all Project work
pursuant to engineering and design plans which have received-
prior Government approval . The Local Sponsor shall submit the
solicitation package to the Government for review and comment
prior to the award of any contract.
b. The Local Sponsor shall provide, as further specified in
Article III of this Agreement, all lands, easements, and rights-
of-way, including suitable borrow and dredged material disposal
areas, and perform all relocations as determined by the
Government to be necessary for the Project.
c. The Local Sponsor shall perform all Project
surveillance.
d. The Local Sponsor shall assure continued conditions of
public ownership and public use of' the shore upon which the
amount of Federal participation is based during the economic life
of the project.
e. The Local Sponsor shall provide and maintain necessary
access roads, parking areas and other public use facilities, open
and available to all on equal terms.
f. The Local Sponsor shall participate in and comply with
applicable Federal flood plain management and flood insurance
programs .
g. The Local Sponsor shall publicize floodpiain information
in the area concerned and shall provide this information to
zoning and other regulatory agencies for their guidance and
leadership in preventing unwise future development in the flood
plain and in adopting such regulations as may be necessary to
prevent unwise future development and to ensure compatibility
Page 4
with protection levels provided by the Project.
h. The Local Sponsor shall bear all costs incurred for the
establishment of an erosion control line in the project area and
all costs for placement of material on property not open to the
public. All lands, easements, rights-of-way, relocations, and
dredged material disposal areas needed for placement of material
on property not open to the public shall be a 100 percent Local
Sponsor cost for which no credit will be given.
i . The Local Sponsor shall, without expense to the
Government, bear all costs associated with beach berm reshaping,
maintenance of storm drainage outfalls, and performance of any
other work described in the operation and maintenance manual for
the Prod
ect, which will be orepared by the Local Sponsor and
approved by the Government.
j . Not less than once each year the Local Sponsor shall
inform affected interests of the limitations of the protection
afforded by the Project .
k. No Federal funds may be used to meet the Local Sponsor' s
share of Project costs under this Agreement unless the
expenditure of such funds is expressly authorized by statute as
verified in writing by the Federal granting agency.
1 . The Government shall review all engineering and design
plans submitted by the Local Sponsor, and inspect all work which
is accomplished by the Local Sponsor, to ensure that such plans
and work are in accordance with the Project design criteria.
M. The Government shall reimburse the Local Sponsor for the
Federal share of total project costs as further provided in
Article VI and Article VII
of this Agreement.
ARTICLE III - LANDS, FACILITIES AND PUBLIC LAW 91-646 RELOCATIO14
ASSISTANCE
a. The Local Sponsor shall provide all lands, easements,
and rights-of-way, including suitable borrow and dredged material
disposal areas, as may be determined by the Government to be
necessary for the Project . The necessary lands, easements, and
rights-of-way, including suitable borrow and dredged material
disposal areas, may be provided incrementally, but all lands,
easements, and rights-of-way determined by the Government to be
necessary for work to be performed for the Project must be
furnished prior to the advertisement of any contract for that
work.
b. The Local Sponsor shall provide all retaining dikes,
wasteweirs, bulkheads, and embankments, including all monitoring
Page 5
features and stilling basins that may be required at any dredged
material disposal areas necessary for the Project .
c. The Local Sponsor shall accomplish or arrange for
accomplishment of all relocations determined by the Government to
be necessary for construction of the Project.
d. The Local Sponsor shall comply with the applicable
provisions of the Uniform Relocations Assistance and Real
Property Acquisition Policies Act_ oif' 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 CFR Part 24, in acquiring
lands, easements, and rights-of-way, including suitable borrow
and dredged material disposal areas, for the Project, and inform
all affected persons of applicable benefits, policies and
procedures in connection with said Act. The Local Sponsor shall
provide such documentation as the Contracting officer requires to
demonstrate compliance.
ARTICLE IV - VALUE OF LANDS AND FACILITIES
a. No credit shall be given for lands, easements, rights-
of-way, including suitable borrow and dredged material disposal
areas provided to the Goverment prior to March 1, 1991. The
Local Sponsor shall receive a credit for the value of any lands,
easements, and rights-of-way, including suitable borrow and
dredged material disposal areas, provided for the Project. Such
credit shall be applied towards the Local Sponsor' s share of
total project costs in accordance with the following procedures:
1. If the lands, easements, or rights-of-way are owned
by the Local Sponsor as of the date the first contract for the
Project is awarded, the credit shall be the fair market value of
the interest at the time of such award. The fair market value
shall be determined by an appraisal, to be obtained by the Local
Sponsor, which has been prepared by a qualified appraiser who is
acceptable to both the Local Sponsor and the Government. The
appraisal shall be reviewed and approved by the Government .
2. If the lands, easements, or rights-of-way are to be
acquired by the Local Sponsor after the date of award of the
first contract for the Project, the credit shall be the fair
market value of the interest at the time such interest is
acquired. The fair market value shall be determined as specified
in Article IV.a. 1 of this Agreement . If the Local Sponsor pays
an amount in excess of the appraised fair market value, it may be
entitled to a credit for the excess if the Local Sponsor has
secured prior written approval from the Government of its offer
to purchase such interest.
3 . If the Local Sponsor acquires more lands,
Page 6
easements, or rights-of-way than are necessary for Project
purposes, as determined by the Government, then only the value of
such portions of those acquisitions as are necessary for the
Project shall be included in total project costs and credited to
the Local Sponsor' s share.
4 . Allowable credit for lands, easements, and rights-
of-way in the case of involuntary acquisitions which occur within
a one-year period preceding the date this Agreement is signed or
which
occur after the date this Agreement is signed will be based on court awards, or on stipulated settleme nts that have received
prior Government approval.
5 . Credit for lands, easements, or rights-of-way
acquired by the Local Sponsor within a five-year period preceding
the date this Agreement is signed, or any time after this
Agreement is signed, will also include the actual incidental
costs of acquiring the interest, e.g. , closing and title costs,
appraisal costs, survey costs, attorney' s fees, plat maps, and
mapping costs, as well as the actual amounts expended for payment
of any Public Law 91-646 relocation assistance benefits provided
in accordance with the obligations under this Agreement.
b. The cost of relocations which will be included in total
project costs and credited towards the Local Sponsor's share of
total project costs shall be that portion of the actual costs as
set forth below and approved by the Government:
1. Highways and Highway Bridges: only that portion of
the cost as would be necessary to construct substitute bridges
and highways to the design standard that the State of Florida
would use in constructing a new bridge or highway under similar
conditions of geography and traffic loads.
2 . utilities and Facilities (Including railroads) :
Actual relocation costs, less depreciation, less salvage value,
plus the cost of removal, less the cost of betterments. With
respect to betterments, new materials shall not be used in any
alterations or relocation if materials of value and usability
equal to those in the existing facility are available or can be
obtained as salvage from the existing facility or otherwise,
unless the provision of new material is more economical. If,
despite the availability of used material, new material is used,
where the use of such new material represents an additional cost,
such cost will not be included in total project costs.
ARTICLE V - PROJECT COORDINATION
a. To provide' for consistent and effective communication,
the Local Sponsor shall appoint a point of contact to coordinate
with the Government on scheduling, plans, specifications,
modifications, contract costs, and other matters relating to the
Page 7
Project.
b. The point of contact shall meet with the Government when
deemed necessary, and shall make such recommendations as are
considered appropriate to the Government.
c. The Government shall consider the recommendations of the
point of contact. However, the Government has complete
discretion to accept, reject, or modify any recommendation.
ARTICLE VI - BASIS OF REIMBURSEMENT
a. The Local Sponsor shall provide invoices and any
necessary suporting documents to the Government for all completed
Project work for which reimbursement is requested.
b. After receipt of the above information and subject to
the limitations described in Article VII, the Government shall
reimburse the Local Sponsor for the Federal share of total
project costs which are reasonable, necessary, auditable, and
allocable. The Federal share is presently estimated at 56.33
percent of total project costs based on current conditions of
shore ownership and use. This percentage is subject to
adjustment based upon conditions of shore ownership and use at
time of award of each contract for periodic nourishment .
ARTICLE VII - LIMITATIONS ON REIMBURSEMENT
a. Reimbursement for the work performed by the Local
Sponsor is subject to the availability of appropriations for this
Project.
b. No reimbursement shall be made until the Contracting
Officer has certified that the Project work subject to
reimbursement has been completed and performed in accordance with
applicable approved engineering and design plans.
c. The amount of reimbursement to the Local Sponsor is not
subject to adjustment for interest charges, nor is it subject to
adjustment to reflect changes in price levels between the dates
of completion and reimbursement.
d. The Government shall have the right to conduct an audit
of Local Sponsor' s records for the Project to ascertain
reasonable, necessary, and allocable Project costs. In
determining costs eligible for reimbursement, the Government
shall use Office of Management and Budget Circular No. A-87,
"Cost Principles of State and Local Governments' .
ARTICLE VIII - DISPUTES
Before any party to this Agreement may bring suit in any
Page 8
court concerning an issue relating to this Agreement, such party
must first seek in good faith to resolve the issue through
negotiation or other forms of nonbinding alternative dispute
resolution mutually acceptable to the parties.
ARTICLE IX - OPERATION, MAINTENANCE, AND REHABILITATION
a. The Local Sponsor shall operate, maintain, repair,
replace, and rehabilitate the Project, or functional portion of
the Project at no cost to the Government, in accordance with
regulations or directions prescribed by the Government.
b. The Local Sponsor hereby gives the Government a right to
enter, at reasonable times and in a reasonable and lawful manner,
upon land which the Local Sponsor owns or controls for the
purpose of inspection of the project to determine whether the
Project has been constructed in accordance with the engineering
design and plans, and is being operated and maintained in
accordance with regulations or directions prescribed by the
Government.
C. If an inspection shows that the Local Sponsor for any
reason is failing to fulfill its obligations under this Agreement
without receiving prior written approval from the Government, the
Government will send a written notice to the Local Sponsor. If
the Local Sponsor persists in such failure for 30 calendar days
after receipt of the notice, then the Government shall have a
right to enter, at reasonable times and in a reasonable manner,
upon lands the Local Sponsor owns or controls for the purpose of
fulfilling the Local Sponsor' s duties under this agreement. No
action by the Government shall relieve the Local Sponsor of its
obligations under this Agreement, or preclude the Government from
pursuing any other remedy at law or equity to assure faithful
performance pursuant to this Agreement.
ARTICLE X - RELEASE OF CLAIMS
The Local Sponsor shall hold and save the Government free
from all damages related to the Project, except for damages due
to the fault or negligence of the Government or its contractors.
ARTICLE XI - MAINTENANCE OF RECORDS
The Government and Local Sponsor shall keep books, records,
documents, and other evidence pertaining to costs and expenses
incurred pursuant to this Agreement to the extent and in such
detail as will properly reflect total project costs for the term
of this Agreement. The Government and the Local Sponsor shall
make such books, records, documents, 'and other evidence available
at their offices for inspection and audit by authorized
representatives of the parties to this Agreement .
Page 9
ARTICLE XII - FEDERAL AND STATE LAWS
In acting under its rights and obligations hereunder, the
Local Sponsor agrees to comply with all applicable Federal and
State laws and regulations, including but not limited to, the
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Public Law 91-646) , Section 601 of Title VI
of the Civil Rights Act of 1964 (Public Law 88-352) and
Department of Defense Directive 5500 . 11 issued pursuant thereto
and published in part 300 of Title 32, Code of Federal
Regulations, as well as Army Regulation 600-7 entitled
"Nondiscrimination on the Basis of Handicap in Programs and
Activities Assisted or Conducted by the Department of the Army. "
In addition, the Local Sponsor agrees to apply and include
provisions consistent with the following statutes in all
construction contracts:
a. Buy American, 41 U.S.C. Section 10a;
b. Clean Air Act, 41 U.S .C. Section 7606;
c. Clean Water Act, 33 U.S .C. Section 1368;
d. Contract Work Hours, 40 U.S.C. Section 327 et . seq. ;
e. Convict Labor, 18 U.S .C. Section 4082;
f . Copeland Anti-Kickback, 40 U.S.C. Section 276c;
g. Davis Bacon Act, 40 U.S .C. Section 276, et. seq. ;
h. Equal Opportunity, 42 U.S.C. Section 2000d;
i . Jones Act, 46 U.S.C. Section 292;
j . Rehabilitation Act (1973) , 29 U.S.C. Section 794;
k. Shipping Act, 46 U.S.C. Section 883;
1 . Utilization of Small Business, 15 U.S.C. Section 631,
644;
M. Vietnam Veterans, 38 U.S .C. Section 2012;
n. Walsh-Healey, 41 U.S.C. Section 35, et. seq.
ARTICLE XIII - Relationship of Parties.
The parties to this Agreement act in an independent capacity
in the performance of their respective functions under this
Agreement, and neither party is to be considered the officer,
agent, or employee of the other.
Page 10
ARTICLE XIV - OFFICIALS NOT TO BENEFIT
No member of or any delegate to Congress, or Resident
Commissioner, shall be admitted to any share or part of this
Agreement, or to any benefit that may arise therefrom.
ARTICLE XV - COVENANT AGAINST CONTINGENT FEES
The Local Sponsor warrants that no person or selling agency
has been employed or retained to solicit or secure this Agreement
upon agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees or
bona fide established commercial or•selling agencies maintained
by the Local Sponsor for the purpose of securing business. For
breach or violation of this warranty, the Government shall have
the right to annul this Agreement without liability, or, in its
discretion, to subtract from the reimbursement price the full
amount of such commission, percentage, brokerage, or contingent
fee.
ARTICLE XVI - NOTICES
a. All notices, requests, demands, and other communications
required or permitted to be given under this Agreement shall be
deemed to have been duly given if in writing and delivered
personally, given by prepaid telegram, or mailed by first-class
(postage_prepaid) , registered, or certified mail, as follows:
If to the Local Sponsor: Chairman
Board of County Commissioners
301 North Olive Avenue
West Palm Beach, Florida 33401
If to the Government: District Engineer
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 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 such time as it is personally delivered or seven
calendar days after it is mailed, as the case may be.
ARTICLE XVII - CONFIDENTIALITY
To the extent permitted by the laws governing each party,
the parties agree to maintain the confidentiality of exchanged
Page 11
information when requested to do so by the providing party.
ARTICLE XVIII - HAZARDOUS SUBSTANCES
a. After execution of this Agreement and upon direction by
the Contracting officer, the Local Sponsor shall perform, or
cause to be performed, such environmental investigations as are
determined necessary by the Government or the Local Sponsor to
identify the existence and extent of any hazardous substances
regulated under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) , 42 USC 9601-9675, on
lands, easements, rights-of-way, including suitable borrow and
dredged material disposal areas necessary for the Project . All
actual costs incurred by the Local Sponsor which are properly
allowable and allocable to performance of any such environmental
investigations shall be included in total project costs and cost
shared as a construction cost in accordance with Section
103 (c) (5) of Public Law 99-662 .
b. in the event it is discovered through an environmental
investigation or other means that any lands, easements, rights-
of-way, including suitable borrow and dredged material disposal
areas to be acquired or provided for the Project contain any
hazardous substances regulated under CERCLA, the Local Sponsor
and the Government shall provide prompt notice to each other, and
the Local Sponsor shall not proceed with the acquisition of
lands, easements, rights-of-way, or disposal areas until mutually
agreed.
c. The Government and the Local Sponsor shall determine
whether to initiate construction of the Project, or if already in
construction, to continue with construction of the Project, or to
terminate construction of the Project for the convenience of the
Government in any case where hazardous substances regulated under
CERCLA are found to exist on any lands necessary for the Project.
Should the Government and the Local Sponsor determine to proceed
or continue with construction after considering any liability
that may arise under CERCLA, as between the Government and the
Local Sponsor, the Local Sponsor shall be responsible for any and
all necessary clean up and response costs, 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 as defined in this
Agreement . In the event the Local Sponsor fails to provide any
funds necessary to pay for clean up and response costs or to
other-wise discharge its responsibilities under this paragraph
upon direction by the Government, the Government may either
terminate or suspend work on the Project or proceed with further
work.
d. The Local Sponsor and the Government shall consult with
Page 12
R92 12830
each other under the Construction Phasing and Management Article
of this Agreement to assure that responsible parties bear any
necessary cleanup and response costs as defined in CERCLA. Any
decision made pursuant to paragraph c of this Article shall not
relieve any party from any liability that may arise under CERCLA.
e. The Local Sponsor shall operate, maintain, repair,
replace, and rehabilitate the Project in a manner so that
liability will not arise under CERCLA--
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
THE DEPARTMENT OF THE ARMY PALM EACH COUNTY, FLORIDA
BY:
ar T. Marcus
Assistant Secretary SEP
Nancy P. Dorn hair 2 2
5
of the Army (Civil Works) Board of County
Commissioners
DATE: SEP 2 2 1992
DATE:
AS TO FORM
ApgR-OCL SUFFICIENCY
AN G
—COUNTY AT ITORNEY
M1(. T. BAU-ER
11L T-r, A E
S"
S
;oard of U rie
OU y Co,-Board of ounty C iss,
lts)s�
DEPUTY C
DEPUTY CLERK
Page 13
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
1352, 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.
1 K ren T. Marcus
Ch i r
0 r of County Ch ir
Bo rd of County Cofrmi' ss.ioneis
Palm Beach County,
'%,�l atdogT. 'AUER' CLERK
patd o C04rr �Go Winer Page 14
DEPUTY CLERK
CERTIFICATE OF AUTHORITY
I, Joe Mount, do hereby certify that I am the Principal
Legal officer of Palm Beach County, Florida and that the Palm
Beach County, Florida is a legally constituted public body with
full authority and legal capability to perform the terms of the
Agreement between The Department of the Army and the Palm Beach
County, Florida in connection with the Project and to pay
damages, if necessary, in the event of the failure to perform in
accordance with Section 221 of Public Law 91-611 and that the
person who has executed the Agreement on behalf of Palm Beach
County, Florida has acted within his statutory authority.
IN WITNESS WHEREOF I have made and xecuted this
A
Certificate this f day of 199-A—.
Mount MounVt
Co onty A orney
m County,P m Beach County, Florida
Page 15
CERTIFICATION OF LEGAL REVIEW
The draft Local Cooperation Agreement for the Delray Beach
Segment of the 1962 Palm Beach: County, Florida Shore Protection
Project has been fully reviewed by the Office of Counsel, USAED
Jacksonville.
dZ4 V�e
Jas'/` istric Counsel
Page 16
f%
K U U
INTERLOCAL AGREEMENT
BETWEEN
PALM BEACH COUNTY
AND
THE CITY OF DBLR8Y BEACH
THIS AGREEMENT is oom]c and cuicrcd into on the V�� �ay o 7013 by and
between P \ .K BEACH COUNTY, o political subdivision of the St ,Florida`
(the
"COUNTY"), and the CITl, OF [)ET.RA\, BEACH, a municipal corporation in the State of
Florida, (the "CITY"), each one constituting a public agency as defined in Part I of Chapter 163,
Florida Statutes, hereinafter referred to collectively as the "parties".
WITNESSETB
WHEREAS, Section 163.01, Florida Statutes, kuono) as the "Florida Iuter|oco|
Cooperation Act ofl464" ootbnrizcx local governments to make the most efficient use of their
pop/cm by enabling them tu cooperate with other localities ooabasis of mutual advantage and
thereby to provide services and facilities that will boru\ooizc geographic, economic, population
and other factors influencing the needs and development of local communities; and
WHEREAS, Part lufChapter 163` Florida Statutes, permits public agencies ox defined
therein to enter into io1cr\ocol agreements with each other to jointly exercise any power, privilege,
or authority that such agencies share in common and that each might exercise separately; and
WHEREAS, pursuant to Chapter 125.01, Florida Statutes, the Board of County
Commissioners is empowered to establish administer programs of beach erosion control and to
co1cr into ogrccrucots with other govern-mental agencies within or outside the boundaries of the
COUNTY for joint performance, ur performance ut one unit oo behalf ot the other, ut any oteither
gurcznmcnto| entity's authorized functions; and
WHEREAS,pursuant to Chapter 166, Florida Statutes,the CITY is empowered to exercise
any governmental, corporate, and proprietary power for municipal purposes, except when
expressly prohibited by law; and
WHEREAS,the CITY and COUNTY intend to make the most efficient use of their powers
by cooperating with each other in the maintenance and repair of the Delray Beach Segment of the
Pu|oo Bcoub County, Florida Shore Protection Project (9}l()]IlCT) which includes the area
described in attached Exhibit"/\",within the municipal liruituofthe[itYof[}clruyBtocb`F\oridu;
and
WHEREAS, the Department ot the Army (Federal Govcrnuncnt) and Palm Beach County,
acting as the Non-Federal Sponsor, entered into an agreement dated January 23, l973 pursuant io
Section 102 of the Rivers and Harbors Act ofl962` Public T.ovv 87-874, providing for Federal
participation iu the costs incurred for construction of the PROJECT; and
WHEREAS, the CITY and COUNTY entered into an Intergovernmental Agreement on
February 27, 1973, as amended by Addendum Agreement dated August lb, 1977, and
supplemented by agreements dated November 8, 1983 and October 13, 1992, and October 4, 1994
which provide for joint funding of the PROJECT; and
WHEREAS,in 197') the CITY completed the first beach restoration PROJECT for the City
of Delray Beach municipal beach. Thereafter, the CITY performed maintenance nourishments in
1978, 1984, 1992, 2002, and 2013; and
WHEREAS, the Federal Government and COUNTY entered into an agreement dated
September 23, 1992 pursuant to Section 102 of the Rivers and Harbors Act of 1962, Public Law
87-874 that includes the extension of Federal participation in the PROJECT for a period of 50
years beginning from the date of initiation of construction; and
WHEREAS, the CITY and the COUNTY previously entered into an Interlocal Agreement
on October 4, 1994 (R94-1357D) to provide a mechanism for construction, monitoring and
funding the PROJECT, and this Agreement replaces said Interlocal Agreement,
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations herein, the parties agree as follows:
1. Purpose of the Agreement. The purpose of this Agreement is to provide a
mechanism for construction, monitoring and funding of the PROJECT and to set forth the terms,
conditions and obligations of each of the respective parties hereto. The parties agree that this
Agreement is contingent on the COUNTY entering into the Project Partnership Agreement (PPA)
attached hereto as Exhibit "B", which provides that the Federal Government will construct all
iterations of the PROJECT during the term of the PPA and will cost-share with the COUNTY for
the PROJECT expenses.
2. The PROJECT. The PROJECT consists of the restoration of the City of Delray
Beach municipal beach, which is more particularly described in Exhibit "A".
3. Term. This Agreement shall commence upon execution by both parties and shall
expire on June 1, 2023 unless otherwise terminated as provided herein.
4. COUNTY Obligations.
A. The COUNTY shall enter into the PPA attached hereto as Exhibit "B", which
provides for Federal construction of the Delray Beach Segment of the PROJECT for the remaining
authorized period of periodic nourishment as described in the PPA.
B. The COUNTY shall enter into the Cooperation Agreement (CA)attached hereto as
Exhibit "C" with the Federal Government to provide for PROJECT rehabilitation in accordance
with 33 U.S.C. 701n.
C. The COUNTY shall serve as the non-federal sponsor under the PPA and public
sponsor under the CA and assume the responsibility for local cooperation in the PROJECT.
D. The COUNTY shall appropriate funds and be responsible for the non-Federal costs
as detailed in the PPA and CA.
E. The COUNTY shall reimburse the CITY for any expenses incurred by the CITY
that are eligible for cost share under the terms of the PPA or CA.
5. CITY Obligations.
A. The CITY shall establish and maintain a dedicated funding source to fulfill its
obligations under this Agreement,
B. The CITY shall cooperate with the COUNTY and shall take whatever steps are
necessary to ensure that the COUNTY is able to timely and satisfactorily comply with all terms
and conditions of the PPA and CA.
C. The CITY shall obtain all state and federal permits necessary for the PROJECT
unless notified in writing by the Director of Palm Beach County Department of Environmental
Resources Management that the Federal Government will handle permitting for an iteration of the
PROJECT and shall fully comply with any permits obtained by the CITY, including but not
limited to completing all monitoring, surveys and reporting.
6. Joint Responsibilities. The CITY and the COUNTY shall endeavor to be joint
applicants for State funding for the PROJECT. The COUNTY will support CITY's funding
requests in the same manner as if the request came from the COUNTY, and the CITY will support
the COUNTY's funding requests in the same manner as if the request came from the CITY.
7. Party Representatives. The COUNTY's representative/contract monitor during the
term of this Agreement shall be the Director of the Palm Beach County Department of
Environmental Resources Management,whose telephone number is(561)233-2400. The CITY'S
representative/contract monitor during the term of this Agreement shall be Mr. Paul Dorling,
whose telephone number is (561) 243-7040.
8. Notices. All formal notices between the parties shall be hand-delivered or sent by
certified mail, return receipt requested, to the following recipients:
Chairperson
Board of County Commissioners City Manager
Palm Beach County City of Delray Beach
301 N. Olive Avenue 100 N.W. 1St Avenue
West Palm Beach, FL 33401 Delray Beach, FL 33444
And With a copy to:
Director
Palm Beach County Department of City Attorney
Environmental Resources Management City of Delray Beach
2300 N. Jog Road, 4"' Floor 100 N.W. 1St Avenue
West Palm Beach, FL 33411 Delray Beach, FL 33444
With a copy to:
Palm Beach County Attorney's Office
ERM Attorney
301 N. Olive Ave., 6 t Floor
West Palm Beach, FL 3')401
All notices required by this Agreement shall be considered delivered upon receipt. Should any
Party change its address, written notice of such new address shall promptly be sent to the other
Party.
9. Funding_Contingency. The County's performance and obligations under this Agreement
and any amendment hereto are contingent upon an annual appropriation by the Board of County
Commissioners. The City's performance and obligations under this Agreement and any
amendment hereto are contingent upon an annual appropriation by the City Council.
10. Termination for convenience. Either party may terminate this Agreement for convenience
by giving ninety (90) days prior written notice to the other party. If the CITY terminates this
Agreement for convenience,the CITY shall compensate the COUNTY for all costs incurred by the
COUNTY as a result of such termination.
11. Default and Opportunity to Cure. If a Party fails to fulfill its obligations under this
Agreement in a timely and proper manner, the Party not in default shall have the right to terminate
this Agreement and/or to bring an action for breach by giving written notice of any deficiency and
its intent to terminate and/or to bring an action for breach. The Party in default shall then have
thirty (3)0) days from receipt of notice to correct the stated deficiency. If the defaulting Party fails
to correct the deficiency within such time and unless otherwise agreed by the Parties, the Party not
in default may terminate this Agreement and/or bring an action for breach.
12. Indemnification. Each party shall be liable for its own actions and negligence and, to the
extent permitted by law, the CITY shall indemnify, defend and hold harmless the COUNTY
against any actions, claims or damages arising out of the CITY's negligence in connection with
this Agreement, and the COUNTY shall indemnify, defend and hold harmless the CITY against
any actions, claims or damages arising out of the COUNTY's negligence in connection with this
Agreement. The foregoing indemnification shall not constitute a waiver of sovereign immunity
beyond the limits set forth in Section 768.28, Florida Statutes, nor shall the same be construed to
constitute agreement by either party to indemnify the other party for such other party's negligent,
willful or intentional acts or omissions.
13. Insurance. Each party shall maintain a fully funded program of self-insurance pursuant to
Section 768.28, Florida Statutes.
14. Maintenance of Records. The parties shall maintain, in accordance with
generally-accepted governmental auditing standards, all financial and nonfinancial records and
reports directly or indirectly related to the negotiation or performance of this Agreement or any
amendment hereto, including supporting documentation for any service rates, expenses, research
or reports. The parties shall have the right to examine in accordance with generally-accepted
governmental auditing standards all records directly or indirectly related to this Agreement or any
amendment hereto. Such examination may be made only upon reasonable notice,time and place.
In the event the parties should become involved in a legal dispute with a third party arising from
performance under this Agreement or any amendment hereto,the parties shall extend the period of
maintenance for all records relating to this Agreement or any amendment hereto until the final
disposition of the legal dispute, and all such records shall be made readily available to the other
party.
15. Enforcement Costs. Except as otherwise provided herein, any costs or expenses
(including reasonable attorney's fees) associated with the enforcement of the terms and/or
conditions of this Agreement shall be borne by the respective parties. This provision pertains
only to the parties to the Agreement.
16. Delegation. Nothing contained herein shall be deemed to authorize the delegation of the
constitutional or statutory duties of state, county, or city officers.
17. Filing. A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and
for Palm Beach County.
18. Equal Opportunity. The COUNTY and the CITY agree that no person shall, on the grounds
of race, color, sex, age, national origin, disability, religion, ancestry, marital status, familial status,
sexual orientation, gender identity, or gender expression be excluded from the benefits of, or be
subjected to any form of discrimination under, any activity carried out by the performance of the
Agreement.
19. Severability. In the event that any section,paragraph, sentence, clause, or provision hereof
is held by a court of competent jurisdiction to be invalid, such shall not affect the remaining
portions of this Agreement and the same shall remain in full force and effect.
20. Waiver of Breach. The failure to insist on strict performance of or the waiver of any
covenant, condition, or provision of this Agreement by any party shall not relieve the other party
from performing any other obligation strictly in accordance with the terms of this Agreement. No
waiver shall be effective unless in writing and signed by the party against whom enforcement is
sought. Such waiver shall be limited to provisions of this Agreement specifically referred to
therein and shall not be deemed a waiver of any other provision. No waiver shall constitute a
continuing waiver unless the writing states otherwise.
21. Legal actions; remedies. Any and all legal actions to enforce this Agreement and any
amendment hereto shall be brought in Palm Beach County, Florida. This Agreement and any
amendment hereto shall be governed by the laws of the State of Florida. No remedy herein
conferred upon any party is intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by
any party of any right, power, or remedy hereunder shall preclude any other or further exercise
thereof.
No provision of this Agreement is intended to, or shall be construed to, create any third party
beneficiary or to provide any rights to any person or entity not a party to this Agreement,including
but not limited to any citizen or employees of the County and/or the City.
22. Independent Contractor. Each party recognizes that it is an independent contractor and
not an agent or servant of the other party. No person employed by any party to this Agreement
shall, in connection with the performance of this Agreement or any services or functions
contemplated hereunder, at any time, be considered the employee of the other party, nor shall an
employee claim any right in or entitlement to any pension, worker's compensation benefit,
unemployment compensation, civil service, or other employee rights or privileges granted by
operation of law, except through and against the entity by whom they are employed.
23. Construction. No party shall be considered the author of this Agreement since the parties
hereto have participated in drafting this document to arrive at a final agreement. Thus,the terms of
this Agreement shall not be strictly construed against one party as opposed to the other party based
upon who drafted it.
24. Captions. The captions and section designations herein set forth are for convenience only
and shall have no substantive meaning.
25. Palm Beach County Office of the Inspector General. Palm Beach County has established
the Office of the Inspector General in Palm Beach County Code, Section 2-421 - 2-440, as may be
amended. The Inspector General's authority includes but is not limited to the power to review
past, present and proposed County contracts, transactions, accounts and records, to require the
production of records, and to audit, investigate, monitor, and inspect the activities of any party
contracting with the COUNTY and its officers, agents, employees and lobbyists in order to ensure
compliance with contract requirements and detect corruption and fraud.
Failure to cooperate with the Inspector General or interfering with or impeding any investigation
shall be in violation of Palm Beach County Code, Section 2-421 - 2-440, and punished pursuant to
Section 125.69, Florida Statutes, in the same manner as a second degree misdemeanor.
26. Entirety of Agreement. The CITY and COUNTY agree that this Agreement, together with
any attached exhibits, sets forth the entire agreement between the parties, and that there are no
promises or understandings other than those stated herein. None of the provisions, terms or
obligations in this Agreement may be added to, modified, superseded, or otherwise altered, except
by written instrument executed by the parties hereto.
IN WITNESS WHEREOF,the County of Palm Beach, Florida has caused this Agreement
to be signed by the Mayor of the Board of County Commissioners and the seal of said Board to be
affixed hereto and attested by the Clerk of said Board,pursuant to authority granted by said Board,
and the City of Delray Beach has caused this Agreement to be signed in its corporate name by its
mayor and its corporate seal to be affixed hereto, attested by its City Clerk, the date and year first
above written.
R 2 13 0
ATTEST: PALM BEACH COUNTY, FLORIDA, BY
ITS BOARD OF COUNTY
COMMISSIONERS
Sharon R. Bock, Clerk o oiler
BY: M ' ' BY:
Deputy e: ,a p -� even L. Abrams, Mayor
DATE: 01 i Qt3 DATE: JUL 16 2013
(SEAL)
APPROVED AS TO FORMT AND APPROVED AS TO TERMS AND
LEGAL SUFFICIENCY: CONDITIONS:
BY: u
x a
Assistant County Attorney Robert Robbins, Director
Palm Beach County Dept. of
DATE:__ Environmental Resources Management
ATTEST: CITY OF DELRAY BEACH, FLORIDA,
BY ITS COMMISSION
BY: � � � BY:
City Clerk or
DATE: DATE:
(SEAL)
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
BY: -
City Attorney
DATE: l