Okaloosa County BOCC — May 20, 2014 — C12-1950-TDC

EXHIBIT B CONTRACT, LEASE, AGREEMENT CONTROL FORM Date: MAY 1, 2012 Contract/Lease Control #: #C12-1950-TDC Bid #: NA Contract/Lease Type: INTERLOCAL Award To/Lessee: CITY OF DESTIN Lessor/Owner: OKALOOSA COUNTY Effective Date: 04/17/2012 Expiration Date: 06/01/2014 Description of Contract/Lease: WESTERN BEACH RESTORATION PROJECT Department Manager: TDC Department Monitor: M. BELLINGER Monitor's Telephone #: 651-7131 Monitor's FAX # OR E-Mail: MBELLINGER@CO.OKALOOSA.FL.US Date Closed: Remarks: Cc: Finance Dept Contracts & Grants Division free "y rr C XHIBIT D | 1 CONTRACT & LEASE INTERNAL COORDINATION SHEET Contract/Lease Number: Tracking Number: 4 DL. Contractor/Lessee Name: (ify ot Deky Purpose: /, / bas A Date/Term: vue, t 20/4 1. [OV GREATER THAN $50,000 | Amount__ 73 2p, 02). © ZL] GREATER THAN $25,001 Department: Tae: 3, [1 $25,000 OR LESS Dept. Monitor Name: Lu. Lee lling Li. Lili r a Purchasing Review POPS -, pate: WZ. Coffffacts & Lease Coordinator Risk Management Review Approved as written: | Kost sz a | ; vite rae : as Risk Management Director NJ i - County Attorney Review Date: 4. [0 -|2— CoWnty Attorney Following Okaloosa County approval: Contract & Grant Document has been received: Date: Contracts & Grants Manager INTERLOCAL AGREEMENT FOR WESTERN DESTIN BEACH RESTORATION PROJECT THIS AGREEMENT is made and entered into on the effective date below, by and between OKALOOSA COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as “the County”) and THE CITY OF DESTIN, a municipality of the State of Florida (hereinafter referred to as “the City”). WHEREAS, Okaloosa County has designed and permitted a beach restoration project to improve approximately 1.7 miles of beach which includes areas located within both unincorporated Okaloosa County and within the City limits of the City of Destin (hereinafter referred to as the “Western Destin Project” or “Project”); and WHEREAS, the Western Destin Project Construction Permit (Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0286575-001-JC) has been issued to the County and the City has agreed to enter into this Interlocal Agreement authorized pursuant to Section 163.01(4), Florida Statutes, to provide for (1) the City to assume primary responsibility for the Western Destin Project permit, as sole permitee or as co-permitee with the County, (2) for the City to administer all aspects of the Project including design, permitting, construction, management and monitoring and (3) to establish amounts and procedures for County funding for the Project; and WHEREAS, the Okaloosa County Tourist Development Council and the Board of County Commissioners have approved and budgeted funds in the amount necessary to fund the Western Destin Project costs for this Project, together with such additional funds as are necessary to cover legal services, including litigation; and WHEREAS, the County is currently involved in litigation that was instituted by various property owners who oppose the beach restoration project. That litigation is styled MACLA Ltd. et. al. vs. Okaloosa County and the Florida Department of Environmental Protection, Case No. 1D11-4975 ( Fla. App. 1 DCA). Upon the City’s assumption of the permit, the City, after consultation with the County, will be responsible for actions required in that litigation and any other future legal action related that may be instituted related to the Permit or the Project; and WHEREAS, the beaches within the City limits are a vital part of County’s economic development and the County has agreed to provide financial assistance to offset the legal expenses the City may incur in defending beach restoration permit related litigation; and NOW, THEREFORE, acting pursuant to their statutory authority and in consideration of the mutual covenants and agreements of the parties, the County and the City agree as follows: CONTRACT # C12-1950-TDC CITY OF DESTIN WESTERN BEACH RESTORATION PROJECT EXPIRES: 06/01/2014 Page 1 of 10 SECTION I. AUTHORITY 1.1 This Interlocal Agreement is entered into pursuant to the provisions of Chapter 163.01, Florida Statutes, and other applicable provisions of law. SECTION II. PARTIES 2.1 The parties to this Interlocal Agreement are the County and the City. SECTION ITI. FINDINGS 3.1 The recitals set forth above are hereby approved and incorporated herein. SECTION IV. CITY TO ASSUME PROJECT RESPONSIBILITY 4.1 The parties agree that the City will apply to the State Department of Environmental Protection (“FDEP”) to transfer the Project permits exclusive to the City. The County shall assist and cooperate in the efforts of the City to assume responsibility for the permits. Upon approval by the FDEP, the City will assume primary responsibility for the Project. In the event that the FDEP will not transfer the Project permits exclusively to the City, the County will agree to participate jointly with the City as co-permitees. 4.2 In performing its primary role, the parties agree that the City will include the Executive Director and the Coastal Management Coordinator of the Okaloosa County Tourist Development Council, and their designated consultants (the “County Representatives”), if any, in all project management meetings, as well as in all substantive project management decisions. Substantive management decisions include, but are not limited to; project design and regulatory decisions, initiating and conducting Project related bid or RFP processes; negotiating, executing and managing professional service contracts, construction contracts, insurance contracts and supply contracts; preparation and approval of requests for payment to the County and payment of Project contractors and professionals. 4.3. The parties agree that, upon issuance of any required permit approval, modification or transfer, as may be appropriate, the City will, subject to the participation requirements provided above, have full authority and responsibility to undertake the Project and accomplish all activities relating thereto including contracting for necessary Project services for such things as design, permitting, construction, monitoring and management, and any other related and necessary services for the Project. 4.4 The City shall acquire or obtain all necessary easements, permits, property interests and titles as are required for the completion of the Project and to comply with all requirements of the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization. Page 2 of 10 4.5 Other than this Interlocal Agreement, the Interlocal Agreement for Beach and Dune Restoration and Management executed October 12, 2006 and any settlement agreement which may be entered into to resolve existing challenges to the Project, the County will not be a party to any agreements relating to the Project including those agreements to design, construct or manage the Project nor in any way be considered to be in privity with the Project contractors and consultants. SECTION V. FUNDING FOR PROJECT 5.1 The County agrees to the following funding commitments in order to enable the City to enter into, without limitation, agreements for design, permitting, construction, monitoring, and management of the Project between the City and the contractor or service providers of the City’s choice: A. CONSTRUCTION FUNDING: (1) The County will take all necessary and prudent actions to ensure that it secures a source of funds up to a maximum of eight million dollars ($ 8,000,000), either utilizing of existing funds, securing a public bond issue or by securing a loan commitment or some combination of these methods so that these funds are available when required by the City under the terms of the Project Permit, Project construction and services contracts, or as otherwise provided or required by this Interlocal Agreement. (2) Upon the request of the City, the County shall provide sufficient evidence, in a form acceptable to the City that it has secured such funds in the amount referred to above such that the City can have assurance that such funds are available before the City enters into contracts for design, permitting, construction, monitoring and management of the Project. (3) The County will, upon presentation of requests for payment and the provision of substantiation for the request, meeting the form and procedures required under this agreement, disburse those funds to the City for the payment of Project costs for design, permitting, construction, monitoring and management, and any and all additional reasonable and incidental costs relating thereto. Page 3 of 10 B. LITIGATION FUNDING: (1) The County agrees to assist the City in the funding of legal expenses related to the beach restoration project and the pending litigation, by providing financial assistance not to exceed Two hundred thousand dollars ($ 200,000) to offset legal expenses incurred by the City in defending the beach restoration litigation. (2) The County will, upon presentation of requests for payment and substantiation of expenditures from the City, disburse those funds to the City for payment. 5.2 In the event of unforeseen circumstances, the Parties may mutually agree in writing to additional funding for these purposes. SECTION VI. TERM OF AGREEMENT 6.1 This Interlocal Agreement shall take effect upon adoption by both the governing bodies of both Okaloosa County and the City of Destin and, absent extension approved in writing between the parties, shall expire on June, 1, 2014. SECTION VII. RECORDS AND REPORTING 7.1 For the Project, the City shall: A. Maintain books, records, documents, and other evidence according to generally accepted governmental accounting principles, procedures, and practices which sufficiently and properly reflect all costs and expenditures of any nature, incurred by the City in connection with the Project or otherwise paid or to be paid from either incremental revenues or the proceeds of increment obligations, and said books, records, documents and other instruments shall be retained by the City for a period of three full years after termination of this Agreement. However, notwithstanding the above, no books, records, documents or other evidence reflecting all costs and expenditures incurred in the Project shall be destroyed until proper authorization for the disposal has been received pursuant to Florida Law. B. The City agrees to provide the County, upon presentation of a request for payment of Project construction costs pursuant to this Agreement, with a standard AIA Request for Payment Form in a format substantially similar to the one attached here as Exhibit A to this Agreement. This Request shall provide the required documentation of costs which are to be paid and a certification from a professional engineer licensed to practice in the State of Florida, that the percentage of the improvements presented for payment has been completed according to the plans and specifications approved for such Project under the Project contracts. Page 4 of 10 SECTION VIII. AUDIT 8.1. The County shall have the right from time to time at its sole expense to audit the compliance by the City with the terms, conditions, obligations, limitations, restrictions and requirements of this Agreement and such right shall extend for a period of three (3) years after termination of this Agreement. 8.2. The County shall have full access, for inspection, review, and audit purposes, to all items referred to in Section VIII above. SECTION IX. REPRESENTATIONS AND WARRANTIES 9.1 The County does hereby represent and warrant to the City that it has all requisite power, authority, and authorization to enter into this Agreement, has taken all necessary actions required to enter into this Agreement, and to fulfill any and all of its obligations, duties, and responsibilities provided for or required of it by this Agreement, whether exercised individually or collectively. 9.2 The City does hereby represent and warrant to the County that it has all requisite power, authority, and authorization to enter into this Agreement, has taken all necessary actions required to enter into this Agreement, make any payment contemplated hereby, and to fulfill any and all of its obligations, duties, and responsibilities provided for or required of it by this Agreement, whether exercised individually or collectively. SECTION X. AMENDMENTS 10.1 Neither this Agreement nor any portion of it may be modified or waived orally. The provisions hereof may be amended or waived only pursuant to an instrument in writing, approved by the City Council, and the County’s Board of County Commissioners, and jointly executed by the parties hereto. This Agreement shall be enforced and be binding upon, and insure to the benefits of, the parties hereto and their respective successors and assigns, if any. Any party to this Agreement shall have the right, but not obligation, to waive any right or rights, limitation or limitations, or condition or conditions herein reserved or intended for the benefit of such party without being deemed to have waived other rights, limitations, or conditions. However, any such waiver shall be valid only if expressly granted in writing as described above. SECTION XI. DISPUTE RESOLUTION 11.1 The parties shall attempt to resolve any disputes that arise under this Agreement in good faith and in accordance with the provisions of the “Florida Governmental Conflict Resolution Act”. 11.2 To the extent that the parties are unable to resolve this dispute through the provisions of the "Florida Governmental Conflict Resolution Act," then within thirty (30) days, the parties shall Page 5S of 10 be required to participate in mediation. The cost of the mediation shall be borne equally between the parties. 11.3 In the event that the matter is not resolved through the mediation process, each party shall be free to pursue any of its available remedies. SECTION XII. SEVERABILITY 12.1. If any one or more of the covenants, agreements or provisions of this Agreement shall be held contrary to any express provision of law or contrary to any policy of express law, then the remainder of this agreement shall remain in full force and effect. SECTION XIII. CONTROLLING LAW 13.1. All covenants, stipulations, obligations and agreements of the County and the City contained in this Agreement shall be deemed to be covenants, stipulations, obligations and agreements of each of the County and the City to the full extent authorized by the Act and provided by the Constitution and laws of the State of Florida. The laws of the State of Florida shall govern any and all provisions of this Agreement and any proceeding seeking to enforce or challenge any provision of this Agreement. Venue for any proceeding pertaining to this Agreement shall be exclusively in Okaloosa County. SECTION XIV. NOTICE 14.1 If written notice to a party is required under this Agreement, such notice shall be given by hand delivery, recognized overnight delivery service, or by first class mail, registered and return receipt requested, to the County as follows: James Curry County Administrator Okaloosa County 1804 Lewis Turner Blvd. Suite 400 Fort Walton Beach, FL 32547 Page 6 of 10 As to the City as follows: Maryann Ustick City Manager City of Destin 4200 Indian Bayou Trail Destin, FL 32541 SECTION XV. NO MEMBER LIABILITY 15.1 Neither the members of the governing body of the County, the City, nor any official executing this Agreement, shall be liable personally or shall be subject to any accountability for reason of the execution by the County, the City or any executing authority of the County or the City for any act pertaining thereto. SECTION XVI. FORCE MAJEURE 16.1 A party’s timely performance of its obligations under this Agreement, only to the extent it is specifically affected thereby, shall be suspended, without forfeiture of any performance bond or the incurring of any financial liability, when and only for as long as performance of such obligations is prevented by reasons of any of the following cases: (i) acts of God, including without limitation severe weather events, (ii) operation of law, and (iii) any other event beyond the reasonable control of the party whose performance is affected, to the extent not caused by such party’s willful or negligent acts or omissions, except in those cases where the party could not have reasonably foreseen and reasonably avoided the occurrence. The party affected by any such event shall give written notice thereof to the other party as soon as practicable after it becomes aware of such an event and, to the extent practicable, shall specify the anticipated length of the delay. The affected party shall use reasonable efforts to minimize the impact of that delay on that party’s performance. Neither party shall be liable to the other for damages caused by such events. This provision shall not apply to obligations to make payments under Section V of this Agreement. SECTION XVII. FILING 17.1. The County and the City are hereby authorized and directed after approval of this Agreement by the County and the City and the execution thereof by the duly qualified and authorized officers of each of the parties hereto, to file this Agreement with the Clerk of the Circuit Court of Okaloosa County, Florida for recording in the public records of Okaloosa County, Florida as provided in Section 163.01(11), Florida Statutes. Page 7 of 10 SECTION XVIII. SOVEREIGN IMMUNITY 18.1 The parties further agree that nothing contained herein is intended to nor shall be construed a waiver of the County or City’s rights and immunities under the common law or Section 768.28, Florida Statutes, as amended from time to time. SECTION XIX INSURANCE, LIABILITY AND INDEMNIFICATION 19.1 During the term of this Agreement, the City shall have in force general liability insurance with limits of at least $3,000,000.00 per occurrence and $6,000,000.00 aggregate naming the County as an Additional Insured and Certificate Holder covering any liability, claim, damage or lawsuit, excluding claims for a taking of property or inverse condemnation, resulting from the actions of the City or its employees, officers or agents in the performance of its responsibilities under this Agreement. 19.2. The County and City each agree to be fully responsible for all claims, liabilities, damages, costs, actions, suits or proceedings at law or in equity which may occur as a result of the wrongful or negligent acts of their respective officers, employees, representatives, and agents. 19.3. Any contractor or consultant engaged by the City for work on the Project shall be required to protect, defend, indemnify and hold the City and County harmless from all claims, demands, causes of action or liability resulting from injury to or death of persons or damage to or loss of property sustained as a consequence of the Project and arising from the said contractor’s or vendor’s operations or as a proximate result of the acts or omissions of the contractor, consultant or their employees. Such agreement by the contractor or consultant shall include their indemnification as to any assessment of an administrative fine or penalty by a governmental entity for a violation of conditions of the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization related to their actions or failure to act in carrying out their contractual duties The City shall require the provisions of this section to be included in all contracts between the City and its contractors and consultants for work or services to occur on the Project. SECTION XX. CONSTRUCTION 20.1 The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provision of this Agreement. IN WITNESS WHEREOF, the parties hereto, by and through the undersigned, have entered into this Interlocal Agreement on the date and year first above written. Page 8 of 10 BOARD OF COUNTY COMMISSIONERS.-C OKALOOSA COUNTY, FLORIDA /°-— By EAL CLesseth Don R. Amunds Its: Chairman Dated: “Wee LY, Ltd ATTEST: By: Mas (). GY Its: Deputy Clerk John R. Dowd Its: County Attorney Page 9 of 10 CITY OF DESTIN, FLORIDA By: Sw Q aw Satat Seat Seay Seeyérd Its: Mayor Dated: Rey SS Its: Clerk Dated: Approved as to st Scott Sieg j Its: Land Use tine / Page 10 of 10