Item H09H.9
BOARD OF COUNTY COMMISSIONERS
C ounty of M onroe
Mayor David Rice, District 4
Mayor Pro Tem Sylvia J. Murphy, District 5
TheFloridaKeys
Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
County Commission Meeting
November 20, 2018
Agenda Item Number: H.9
Agenda Item Summary #4857
BULK ITEM: Yes DEPARTMENT: Sustainability
TIME APPROXIMATE: STAFF CONTACT: Rhonda Haag (305) 453-8774
N/A
AGENDA ITEM WORDING: Approval to rescind the Revised Memorandum of Understanding
and Mutual Aid Agreement with the Florida Department of Environmental Protection (DEP) for $6
million for clearing of marine debris from canals and other navigable waterways within
unincorporated Monroe County.
ITEM BACKGROUND: This item is to rescind a Revised Memorandum of Understanding
(MOU) with the State Department of Environmental Protection (DEP) for DEP to conduct the
marine debris cleanup, and for the County to reimburse DEP for its efforts. The Revised MOU was
approved at the May 2018 BOCC meeting. The Revised MOU was requested by DEP, but never
signed by DEP after BOCC approval. The Revised MOU is no longer required as work under the
DEP marine debris program terminated and new marine debris clearing work with USDA NRCS
took its place.
If the Revised MOU is rescinded, the original MOU will remain in place. Both the original MOU
and the Revised MOU essentially provide that DEP will do the work (using its contractors and
paying for the work) and then the County will reimburse DEP upon presentation of an invoice.
None of the modifications in the Revised MOU changes that requirement.
The three modifications included in the Revised MOU that had been requested by DEP were the
following:
1) Amending language in Section 10, to allow the County to modify the list of canal
priorities in Exhibit 6 without needing formal amendment of the parties. (The same
graphic was included in the original MOU as Exhibit 5. Exhibit 5 said at the top that the
County could modify the list of canals without formal approval of the parties, but DEP
wanted to add language in Section 10 specifically providing for this.)
2)
Management Site Policies and Fo
3) Revision to Section 1 to add words saying that the requirements for DDMS permits may
change over time, without the need for an MOU amendment.
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H.9
PREVIOUS RELEVANT BOCC ACTION:
11/18/17: BOCC approval of Resolution 297-2017 authorizing additional temporary emergency
staging areas, on parcels of land, as approved by Monroe County, for the collection, storage, and
handling of vessels and marine debris related to Hurricane Irma, effective October 18, 2017, for a
duration of up to 180 days.
10/18/17: A public hearing to declare that an emergency exists in accordance with F.S. 125.66(3)
and approval to enact an Ordinance retroactive to September 4, 2017 amending chapter 11-
Emergency Management and Emergency Service of the Monroe County Code to amend Sec. 11-2 to
provide for disaster generated debris from canals in order to protect public health and safety.
12/13/17: \[Pulled from the Agenda\] Approval of a no cost Memorandum of Understanding and
Mutual Aid Agreement, for clearing of navigable waterways within unincorporated Monroe County,
with the Florida Department of Environmental Protection and Florida Fish and Wildlife
Conservation Commission, retroactive to the last date executed by the parties.
02/21/18: Ratification of a Memorandum of Understanding and Mutual Aid Agreement with the
Florida Department of Environmental Protection (DEP) for $6 million for clearing of marine debris
from canals and other navigable waterways within unincorporated Monroe County, to be reimbursed
by the County to DEP, retroactive to the last date executed by the parties.
05/16/18: Approval of a Revised Memorandum of Understanding and Mutual Aid Agreement with
the Florida Department of Environmental Protection (DEP) for $6 million for clearing of marine
debris from canals and other navigable waterways within unincorporated Monroe County, to be
reimbursed by the County to DEP.
CONTRACT/AGREEMENT CHANGES:
Rescission
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
2018.3.20-Monroe MOU For Clearing of Private and Public Waterways-4
Exhibits 1-2 Revised
Exhibit 3
Exhibit 4 Revised
Exhibit 5 Revised
Exhibit 6 Revised (Rev per CH 5 1 18)
FINANCIAL IMPACT:
Effective Date: Upon BOCC approval
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Expiration Date: N/A
Total Dollar Value of Contract: (Original MOU) $6,000,000
Total Cost to County: NTE $6,000,000
Current Year Portion: N/A
Budgeted: No
Source of Funds: State DEP, County to reimburse
CPI: N/A
Indirect Costs: Staffing time to manage the local coordination efforts, anticipated to be
reimbursable by FEMA.
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant: Mutual Aid Agreement
County Match: Under current FEMA limits, the County will be responsible for the non-Federal
share (currently 25% - $1,500,000) and for 100% reimbursement to DEP within 24 months
Insurance Required: No
Additional Details:
REVIEWED BY:
Rhonda Haag Completed 10/17/2018 4:47 PM
Cynthia Hall Completed 10/23/2018 3:20 PM
Budget and Finance Completed 10/23/2018 3:34 PM
Maria Slavik Completed 10/24/2018 7:37 AM
Kathy Peters Completed 10/24/2018 2:37 PM
Board of County Commissioners Pending 11/20/2018 9:00 AM
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AMENDED MEMORANDUM OF UNDERSTANDING AND PUBLIC
ASSISTANCE AGREEMENT FOR CLEARING OF PUBLIC AND
PRIVATE WATERWAYS
THIS MEMORANDUM OF UNDERSTANDING AND PUBLIC ASSISTANCE
AGREEMENT is made and entered into as of the date last signed by the parties
below, between Monroe County Board of County Commissioners
(the ),
each one constituting a public agency as defined in Section 163.01(3)(b), Florida Statutes
(2017).
WITNESSETH:
WHEREAS, on September 10, 2017, Hurricane Irma made landfall in the Florida Keys
and the County as a Category 4 storm with maximum sustained winds of approximately 130
m.p.h.
WHEREAS, Hurricane Irma caused significant and widespread damage throughout
Monroe County.
WHEREAS
United States National Marine Sanctuary and must be preserved for future generations.
WHEREAS, because of the impact of Hurricane Irma, Monroe County has expended all
its resources and revenues in preparation, mitigation, and cleanup actions.
WHEREAS, the County now has no resources available to clear non-hazardous and
hazardous debris from private and public waterways (including canals and nearshore waterways
below the mean high water line).
WHEREAS, debris, including, but not limited to vegetation, hazardous waste,
construction and demolition debris, propane tanks, white goods, e-waste, docks, non-marine
vehicles, seawalls, and houses or portions of houses pose a direct threat to the health, safety, and
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welfare of the residents of the County and the State of Florida.
WHEREAS, pursuant to Section 252.45, Florida Statutes the Governor of the State of
Florida, when he deems it in the public interest, enter into a contract on behalf of the state
for the lease or loan to any political subdivision of the state, on such terms and conditions as she
Furthermore, this loaning power is delegated by the Governor to DEP as
administrative unit\[s\] within the the definitions in
Section 20.03, Florida Statutes.
WHEREAS, pursuant to Sections 125.01(1)(p), 252.40, and 403.061(21), Florida
Statutes, and Section 9, Article IV of the Constitution of Florida, by and through this MOU, DEP
agrees to assist the County with the clearing, removal, and disposal of debris from privateand
public waterways.
WHEREAS, the County has adopted Ordinance 023-2017 on October 18, 2017
(incorporated herein as Exhibit 1). This ordinance details that debris removal from public and
private property (including waterways and canals) is necessary to protect the public health and
safety in a declared emergency. Furthermore, that the County has the legal authority and
repository to remove the debris, and that it is necessary for the public interest to eliminate an
immediate threat to life, public health, and safety. Finally, federal and state governments are held
harmless and indemnified for all claims or loss or damages resulting from the work.
WHEREAS, the Federal Emergency Management Agency in its Public
Assistance Program and Policy Guide (2018) provides debris on private property may be
removed and eligible under the doctrine of public assistance. Through this MOU, debris removal
on private property must be in the public interest to qualify according to for Public Assistance
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Program and the criteria of Public Assistance Program and Policy Guide (2018). There also must
be a written request to FEMA for this doctrine to go into use. Accordingly, the Countyhas
adopted Ordinance 023-2017
Public Assistance Program and Policy Guide (2018). This ordinance, upon verbal consent of
FEM the requirement for a written request and authorization. On
February 1, 2018, the County has submitted a request for approval of its marine debris removal
program to FEMA through the State of Florida, Division of Emergency Management.
WHEREAS, as a result of the passage of Ordinance 023-2017, the County is empowered
for cleaning up private and public waterways.
WHEREAS, the County is also permitted to ask for additional assistance under the
suffic
WHEREAS, in the present case, the State will provide aid and assistance to the County
directly
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, the Parties agree to the following:
Section 1- Responsibilities: DEP will use its resources, funds, and contracts to
remove non-hazardous and hazardous debris resulting from the 2017 Hurricane Irma from the
private and public waterways, including nearshore waterways below the mean high water line,
within the unincorporated boundaries. This MOU does not include the cleaning up of
derelict vessel debris.
If the public or private waterway extends into a municipality, the State will cease work at
the borderline of the unincorporated Monroe County and the municipality. Work by the State in
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the municipalities of Monroe County will be dealt with in subsequent and individual MOUs, as
needed or wanted by each municipality. Private and public waterways, including nearshore
waterways below the mean high water line, for the purposes of MOU, are
defined by and identified in Exhibit 1. For the purposes of this MOU,
average height of the high
waters over a 19-Section 177.27(14), Florida Statutes (2017) goes on
high waters after corrections are applied to eliminate known variations and to reduce the result to
the equivalent of a mean 19-
Section 177.27(15), Florida Statutes (2017) and for the purposes of this MOU is the intersection
The documentation identifying public and private waterways, including nearshore
waterways below the mean high water line, in unincorporated Monroe County, which are subject
to this MOU are incorporated as Exhibit 2. Exhibit 2 may be modified by in writing by mutual
agreement of the DEP and the County.
As part of its responsibilities, the County shall have the responsibility to locate and secure
appropriate sites and/or transfer stations for debris, and shall secure all necessary permits,
including disaster debris management site (DDMS) permits. This includes compliance with all
instructions, requirements, and policies laid out in Exhibit 3. Furthermore, due to the duration
and quantity of work, the requirements for DDMS permits may change over time. Changes to
these permits and their requirements will be allowed under this MOU consistent with the
and rules, as needed without the need to amend the entire MOU. Rather,
changes should be placed in writing and sent to the other party within ten (10) days of the
proposed change. Also, the County shall provide any public lands that are available and
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appropriate as DDMS sites and shall provide any other help to assist the State in locating and
securing the necessary sites. Finally, the State does not guarantee a minimum or maximum of
amount of aid under this MOU.
Section 2- Standards: The State and County will follow all applicable Federal Emergency
Management Agency, federal, Florida, and local laws, rules, policies, and procedures to ensure work is
done properly, efficiently, and to maximize reimbursement opportunity from Federal Emergency
Management Agency. This MOU and all related documents will comply all federal procurement
requirements under 2 C.F.R. § 200.326 (2014), including Appendix II to Part 200, as incorporated by
reference into this MOU as Exhibit 4.
This MOU prohibits Time-and-Material Contracts (T&M), which are discouraged by the
Federal Emergency Management Agency. If DEP elects to use a T&M Contract, either for a contractor
or subcontractor, there must be a prior written explanation provided to the County as to itsuse,
justification, and why the other types of contracts do not work in the present situation.
It is understood and agreed that each party operates under its own legal authorities,
policies, MOU are thereby limited. It
shall be the responsibility of each party to interpret its own authorities and policies and make
decisions as required under law and policies applicable to each.
Section 3 Scope of Work and Priority List: The State and County shall do,
perform, and carry out the duties described in the Scope of Work, attached hereto as Exhibit 5.
Exhibit 6. These exhibits are incorporated into this MOU as any other term or provision of this
MOU.
Section 4 Repayment: Under
to reimburse DEP for all costs, activities, fees, and expenditures associated with this MOU and
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its exhibits. The County is responsible for paying the entire local share in accordance with the
dollar amounts. These monies will be paid
independently from the monies provided under this MOU.
The County will be responsible for repaying DEP fifty (50) percent of all the monies
expended by DEP, no later than the last day of the nineteenth month following the date of
To determine the amount to be
repaid, which repayment shall occur by no later than the last day of the eighteenth month
following the Date of Execution, DEP will issue to the County an accounting in writing, showing
all monies expended up to the last day of the seventeenth (17) month following the Date of
Execution, together with detailed backup. The backup shall be in a form that shall conform with
requirements for submission to FEMA as part of all Project Worksheet (P.W.) requestsfor
reimbursement. The remaining work will continue until the last day of the twenty-third (23) month
the Date of Execution, DEP shall submit to the County a final accounting, showing all monies
expended on the project covered by this MOU. Thereafter, the County will then be required to
repay the Department the balance of the money outstanding by the last day of the twenty-forth
(24) from the Date of Execution. Finally, all monies repaid to DEP will be made in accordance
with instructions and guidance.
On or before the third day of each month covered by this MOU, the County shall submit a
snapshot report showing revenue and expenditures for the County for the previous month. This
will be done in writing to the and in generally
accepted accounting principles.
Section 5- Administration and Monitoring: The State (or its Contractors) shall
exclusively administer and monitor its work within the County, but will consider counsel from
County as needed. Specifically, the Florida Department of Environmental Protection will be
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responsible for the administration and monitoring of marine debris clearing, removal, and
disposal. The County will be responsible for providing a list of priority of work the County is
requesting the State to perform, in consultation with the State.
Section 6 Local Governments: This MOU applies solely to the private and public
waterways of unincorporated Monroe County, excluding those in the five (5) municipalities
within Monroe County.
Section 7- Sovereign Immunity: Nothing herein shall be deemed a waiver, express or
implied of any pFlorida Statutes (2017) or
considered a waiver of immunity or the limits of liability beyond any statutory limited waiver or
limits of liability which may have been adopted by the Florida Legislature in Section 768.28,
Florida Statutes (2017) or other state statutes. To the extent that a Court of competent jurisdiction
should determine that anything contained in this MOU constitutes a waiver of sovereign
immunity, such terms and conditions shall be interpreted to the fullest extent possible to
effectuate the intent of the parties (and their contractors), but deleting any terms or conditions
which would constitute a waiver of sovereign immunity.
Section 8- Cleanup Measures: The County may take its own measures to
clear debris, so long as it does not interfere with or duplicate work performed by the State or its
contractors. The County shall consult with the State for any waterway debris removal to be
performed by the County to prevent overlapping projects and operations.
Section 9- Termination: This MOU shall commence when it is executed by all parties
and shall continue until terminated as provided herein, amended, or replaced with a new MOU.
The MOU can also be terminated via amendment or replacement. During the major
disaster declaration period, that commenced on September 4, 2017, and has subsequently been
extended, none of the parties may terminate the MOU until this state declaration expires or is
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lifted by the Governor of the State of Florida or his designee. Except as provided herein, this
MOU may be terminated with or without cause by DEP and the County upon a thirty (30) day
written notice to all other parties. If a terminated party desires to re-enter the MOU, it must be
upon consent of the remaining parties and in writing in accordance instructions laid out in this
MOU.
Section 10- Modification: No modification to this MOU is effective unless the parties
agree, consent, and join in writing thereto, and any modification to this MOU must be executed by
representatives of the undersigned parties duly authorized to bind the parties.
The exception to this provision is the ability for the County to modify Exhibit 6 upon
receiving further information regarding the amounts of debris within the waterways (including
canals) subject to this agreement. In order to amend Exhibit 6, the party wishing to amend the
exhibit will notify the other party of the change via email to the persons listed in Section 12 of this
agreement.
Section 11- Public Records: If any party to this MOU
Section 119.0701(1)(a), Florida Statutes , the Contractor shall:
(1) Keep and maintain public records required by DEP, the County and FEMA to perform the
service.
(2) Upon request, provide DEP with a copy of requested public records or allow the public records
to be inspected or copied within a reasonable time at a cost that does not exceed the cost
provided in Chapter 119, Florida Statutes, or as otherwise provided by law.
(3) A Contractor who fails to provide the public records to DEP within a reasonable time may be
subject to penalties under Section 119.10, Florida Statutes.
(4) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
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Contract term and following completion of the Contract if the Contractor does not transfer the
public records to DEP.
(5) Upon completion of the Contract, transfer, at no cost, to DEP all public records in possession of
the Contractor or keep and maintain public records required by the State to perform the service.
If the Contractor transfers all public records to DEP upon completion of the MOU, the
Contractor shall destroy any duplicate Public Records that are exempt or confidential and
exempt from public records disclosure requirements. DEP will be responsible for the
maintenance and retention of these records for FEMA reimbursement and other purposes in
conformity with federal and state regulations, laws, and rules. If the Contractor keeps and
maintains public records upon completion of the MOU, the Contractor shall meet all applicable
requirements for retaining public records. All public records stored electronically must be
provided to the State, upon request from the custodian of public records, in a format
specified by the State as compatible with the information technology systems ofDEP. These
formatting requirements are satisfied by using the data formats as authorized in the Contract or
Microsoft Word, Outlook, Adobe, or Excel, and any software formats the Contractor is
authorized to access.
(6) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES AND ALL APPLICABLE FLORIDA
DEPARTMENT OF STATE RULES
PUBLIC RECORDS RELATING TO THE CONTRACT, CONTACT
CUSTODIAN OF PUBLIC RECORDS AT:
Telephone: (850) 245-2118
Email: public.services@dep.state.fl.us
Mailing Address: Department of Environmental Protection
ATTN: Office of Ombudsman and Public Services
Public Records Request
3900 Commonwealth Boulevard, MS 49
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Tallahassee, Florida 32399
Section 12- Parties, Notices, and Delegations: Notice and correspondences related to
this MOU shall be directed to the attention of the public officials identified below.
Monroe County
Mayor David Rice, Monroe County Board of County Commissioners
1100 Simonton Street, Suite 205
Key West, Florida 33040
Florida Department of Environmental Protection
Deputy Secretary David A. Clark, Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS #44
Tallahassee, Florida 32399
Each party reserves the right to designate another official to be the point of contact without
formal amendment to this MOU. This designation must be done ten (10) days before the desired
date of substitution by email, facsimile, or U.S. Mail. Confirmation of this transfer and its receipt
must be maintained, and if sent by U.S. Mail there must be a mail receipt. The designated official
shall be responsible for all material actions, oversight, and coordination in the performance of this
MOU.
All notices must be in writing and are only effective: (i) when deposited in the U.S. mail,
certified mail, return receipt requests, and postage prepaid, or (ii) when sent via overnight
delivery. Notice will be deemed delivered on the date of the receipt (or on the receipt is refused)
as shown on the certification of receipt or the records or manifest of the U.S. Postal Service or
overnight delivery.
Section 13- Severability and Choice of Venue: If any provision of this MOU is adjudged
by a court of competent jurisdiction to be void and unenforceable, that judgment shall not affect:
(a) any other provision of this MOU; (b) the application of such provision in any other
circumstances; and (c) the validity or enforceability of this MOU, subject to the law of
severability under Florida law. Any action in connection herewith, in law or equity, shall be
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brought in Leon County, Florida, to the exclusion of all other lawful venues.
Section 14- Monetary Limitations: The signatories of this MOU acknowledge that DEP has a
finite amount of resources for the clean-up of not only the above-referenced waterways but also for the
state lands and possibly waterways within the five (5) municipalities in Monroe County. Therefore,
DEP sets a limitation of six million dollars ($6,000,000.00) for this MOU, state lands, and the other
for Land and Recreationwill
evaluate current and future projects, as well as available funding resources to determine whether to
continue with clean-up operations. This decision will be made in consideration of input from the
decision. This decision will be made and sent in writing to the County within ten (10) days of reaching
the $6,000,000.00 cap.
Section 15 - Non-Reliance by Third-Parties: No person(s) or entity(ies) shall be entitled
to rely upon the terms of this MOU to enforce or attempt to enforce any third-party claim(s) or
entitlement(s) to or benefit(s) from any service(s), term(s), project(s), program(s), or task(s)
contemplated hereunder.
Section 16 - Non-discrimination: No person, on the grounds of race, creed, color, national
origin, age, sex, or disability, shall be excluded from participation in, be denied the proceeds or
benefits of, or be otherwise subjected to discrimination in the performance of this MOU. All activities
pursuant to this MOU shall be in compliance with the requirements of Title VI of the Civil Rights Act
of 1964 (78 Stat. 252; 42 U.S.C. 2000d et seq.); Title V, Section 504 of the Rehabilitation Act of 1973
(87 Stat. 394; 29 U.S.C. 794); the Age Discrimination Act of 1975 (89 Stat. 728; 42 U.S.C. 6101 et
seq.); and with all other State and Federal laws, regulations, and policies prohibiting discrimination.
Section 17 Non-Assignment: This MOU may not be assigned in whole or in part without the
written approval of all parties. Any such assignment or attempted assignment shall be null and void.
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Section 18 No Third-Party Rights: The parties hereto do not intend, nor shall this MOU be
construed to grant any rights, privileges or interest to any person not a party to this MOU.
Section 19 Jury Trial Waiver: As part of the consideration for this MOU, the parties hereby
waive trial by jury in any action or proceeding brought by any party against any other party pertaining
to any matter whatsoever arising out of or in any way connected with this MOU, or with the services
provided under this MOU; including but not limited to any claim of quantum meruit.
Section 20 Entire Agreement: This MOU with all incorporated attachments and
exhibits represents the entire MOU between the parties.
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IN WITNESS WHEREOF, Monroe County Board of County Commissioners and Florida
Department of Environmental Protection have caused this Memorandum of Understanding to be
effective when it is executed by all parties as indicated below for uses and purposes set forth
herein.
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
______________________________________
Chair/Mayor Date
ATTEST:
_______________________________________
Deputy Clerk
APPROVED AS TO FORM AND LEGALITY
_______________________________________
Assistant County Attorney
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FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
_______________________________________
Deputy Secretary Date
ATTEST:
_______________________________________
Notary
APPROVED AS TO FORM AND LEGALITY
_______________________________________
General Counsel
Attachments:
Exhibit 1: Ordinance 023-2017, Monroe County Board of County Commissioners
Exhibit 2: Documentation Identifying Public and Private Waterways in Monroe County
Exhibit 3: Disaster Debris Management Site Policies and Forms
Exhibit 4: Contract Provisions Required by 2 CFR §200.326
Exhibit 5: Scope of Work and Responsibility of the State of Florida
Exhibit 6:
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1.Administrative, Contractual, and Legal Remedies
The following provision is required if the Agreement is for more than $150,000. In addition to
any of the remedies described in the elsewhere inthe Agreement, if the Contractormaterially
fails to comply with the terms and conditions of this Contract, including any Federal or State
statutes, rules or regulations, applicable to this Contract, the Non-Federal Entity may take one or
more of the following actions.
i.Temporarily withhold payments pending correction of the deficiency by
theContractor.
ii.Disallow (that is, deny both use of funds and any applicable matching
credit for) all or part of the cost of the activity or action not in compliance.
iii.Wholly or partly suspend or terminate this Contract.
iv.Take other remedies that may be legally available.
The remedies identified above, do not preclude the Contractorfrom being subject to debarment
and suspension under Presidential Executive Orders 12549and 12689. The Non-Federal entity
shall have the right to demand a refund, either in whole or part, of the funds provided to the
Contractorfor noncompliance with the terms of this Agreement.
2.Termination for Cause and Convenience
A.The Department may terminate this Agreement at any time in the event of the failure
of the Contractor to fulfill any of its obligations under this Agreement or if any warranty
or representation made by Contractor in this Agreement or in its application for funding
shall at any time be false or misleading in any respect. Prior to termination, the
Department shall provide thirty (30) calendar days written notice of its intent to
terminate and shall provide the Contractor an opportunity to consult with the
Department regarding the reason(s) for termination.
B.The Department may terminate this Agreement for convenience by providing the
Contractor with thirty (30) calendar days written notice. If the Department terminates
the Agreement for convenience, the Department shall notify the Contractor of such
termination, with instructions as to the effective date of termination or specify the stage
of work at which the Agreement is to be terminated. If the Agreement is terminated
before performance is completed, the Contractor shall be paid only for that work
satisfactorily performed for which costs can be substantiated.
3.Equal Opportunity Clause
-1.3:
During the performance of this Agreement, the Contractoragrees as follows:
i.The Contractorwill not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender identity,
or national origin. The Contractorwill take affirmative action to ensure that
Attachment: Exhibit 4 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
applicants are employed, and that employees are treated during employment without
regard to their race, color, religion, sex, sexual orientation, gender identity, or
national origin. Such actionshall include, but not be limited to the following:
a.Employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The Contractoragrees to post
in conspicuous places, available to employees and applicants for employment,
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notices to be provided setting forth the provisions of this nondiscrimination
clause.
ii. The Contractor will, in all solicitations or advertisements for employees placed by or
on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual
orientation, gender identity, or national origin.
iii. The Contractor will not discharge or in any other manner discriminate against any
employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant
or another employee or applicant. This provision shall not apply to instances in which
an employee who has access to the compensation information of other employees or
applicants as a part of such employee's essential job functions discloses the
compensation of such other employees or applicants to individuals who do not
otherwise have access to such information, unless such disclosure is in response to a
formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or
action, including an investigation conducted by the employer, or is consistent with the
Contractor's legal duty to furnish information.
iv. The Contractor will send to each labor union or representative of workers with which
he has a collective bargaining agreement or other Agreement or understanding, a
notice to be provided advising the said labor union or workers' representatives of the
Contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
v. The Contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary
of Labor.
vi. The Contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and
accounts by the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
vii. In the event of the Contractor's noncompliance with the nondiscrimination clauses of
this Agreement or with any of the said rules, regulations, or orders, this Agreement
may be canceled, terminated, or suspended in whole or in part and the Contractor may
be declared ineligible for further Government contracts or federally assisted
construction contracts in accordance with procedures authorized in Executive Order
11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order 11246 of September 24, 1965, or
by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by
law.
Attachment: Exhibit 4 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
viii. The Contractor will include the portion of the sentence immediately preceding
paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or
purchase order unless exempted by rules, regulations, or orders of the Secretary of
Labor issued pursuant to section 204 of Executive Order 11246 of September 24,
1965, so that such provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontractor purchase order as
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the administering agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance.
4. Davis Beacon Act
If the Agreement is a prime construction contract in excess of $2,000 awarded by the Contractor,
and if required by the Federal Legislation, the Contractor must comply with the Davis-Bacon Act
(40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29
CFR Part
laborers and mechanics at a rate not less than the prevailing wages specified in a wage
determination made by the Secretary of Labor. In addition, contractors must pay wages not less
than once a week. The Contractor must comply -
U.S.C. 3145), as supplemented by Department of Labor regulations (
and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or
contractor must be
prohibited from inducing, by any means, any person employed in the construction, completion,
or repair of public work, to give up any part of the compensation to which he or she is otherwise
entitled.
5. Contract Work Hours and Safety Standards Act
Where applicable, if the Contract is in excess of $100,000 and involves the employment of
mechanics or laborers, the Contractor must comply with 40 U.S.C. 3702 and 3704, as
supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the
Act, each contractor must be required to compute the wages of every mechanic and laborer on
the basis of a standard work week of 40 hours. Work in excess of the standard work week is
permissible provided that the worker is compensated at a rate of not less than one and a half
times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The
requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer
or mechanic must be required to work in surroundings or under working conditions which are
unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of
supplies or materials or articles ordinarily available on the open market, or contracts for
transportation or transmission of intelligence.
6. Rights to Inventions Made Under Agreement
the Contractor wishes to enter into a contract with a small business firm or nonprofit
organization regarding the substitution of parties, assignment or performance of experimental,
Contractor must comply
it
Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative
7. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33
Attachment: Exhibit 4 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
U.S.C. 1251-1387)
If the Agreement is in excess of $150,000, the Contractor shall comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and
the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be
reported to the Federal Awarding Agency and the Regional Office of the Environmental
Protection Agency (EPA).
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8. Debarment and Suspension (Executive Orders 12549 and 12689)
The Contractor certifies that it is not listed on the governmentwide exclusions in the System for
Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that
implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part
9. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)
The Contractor certifies that it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an officer or employee of any
agency, a member of Congress, officer or employee of Congress, or an employee of a member of
Congress in connection with obtaining any Federal contract, grant or any other award covered by
31 U.S.C. 1352. The Contract shall also disclose any lobbying with non-Federal funds that takes
place in connection with obtaining any Federal award.
10. Procurement of Recovered Materials
The Contractor must comply with Section 6002 of the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act as described in 2 CFR part 200.322.
Attachment: Exhibit 4 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
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H.9.e
Section 1- Work: Monroe County is currently recovering from the devastating effects of
Hurricane Irma, a Category 4 storm that directly impacted the Florida Keys. Hazards impeding
the use of public and private navigable waters are needed to be removed to continue with recovery
from the storm. This debris includes, but not limited to vegetative, hazardous waste, non-marine
vehicles, construction and demolition, vehicles, white goods, and e-waste. This MOU does not
encompass the cleaning up of derelict vessel debris. Other limitations on operations and debris
cleanup are detailed in Section 2 of this document.
Debris will be gathered by Department of Environmental Protection or its contractors to an
offload location for transportation to a permitted final disposal facility and/or transfer facility. At
this collection point, the debris will be sorted in accordance with applicable policies, rules,
practices, and laws.
Finally, regarding staging, storage, and disposal of these debris, the County will have the
responsibility to locate and secure appropriate sites and/or transfer stations for debris management
and shall secure all necessary permits, including disaster debris management site (DDMS) permits.
The Florida Department of Environmental Protection will clean up hazardous and non-hazardous
debris in private and public waterways (including canals). The County shall provide any public
lands that are available and appropriate as DDMS sites and shall provide any other help to assist
the State in locating and securing the necessary sites.
Section 2- Limitations on the Responsibility of the State of Florida: The State of Florida
and its contractors will be only responsible for the cleanup of public and private waters, including
Attachment: Exhibit 5 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
nearshore waterways below themean high water line, up to the limits set forth in Federal
Emergency Management Agency’s Public Assistance Program and Policy Guide (2018). The
Federal Emergency Management Agency’s Public Assistance Program and Policy Guide (2018)
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explains that “maintenance of a navigable waterway, removal and disposal of debris that obstructs
the passage of vessels is eligible to a maximum depth of \[two (2)\] feet below the low-tide draft of
the largest vessel that utilized the waterway prior to the incident” are to be covered under the Public
Assistance Program. Furthermore, any debris extending into this zone may be removed as well.
Therefore, any debris, even if a result of Hurricane Irma, found below this limit shall be not the
responsibility of the State of Florida or its contractors. Because of the numerous waterways
throughout unincorporated Monroe County, it is near impossible to calculate this depth limitation
for each of waterways. Therefore, in accordance with Federal Emergency Management Agency’s
attorneys, the depth for this entire cleanup operation will be calculated based on the average depth
of five (5) vessels with the deepest draft in Monroe County. Photographic and depth records of
these vessels will be collected with the help of Monroe County and retained by the Department of
Environmental Protection for the purposes of later reimbursement activities.
Finally, this MOU does not govern the clean-up of federally maintained navigable
waterways. These restrictions are outlined in Federal Emergency Management Agency’s Public
Assistance Program and Policy Guide (2018).
Section 3-Sonar Use:The Department or its contractors will only be permitted to use side
scan sonar when there is an identifiable and documentable threat to life, public health, safety, or to
the economic recovery of the community at large. This means that the side scan sonar cannot be
used to locate which waterway or canal contain debris. Rather it can only be used for locating
debris within a waterway or canal where it is discernible from non-sonar means that there is debris
Attachment: Exhibit 5 Revised (RESCISSION of Amended Marine Debris MOU with DEP)
in a given waterway. This debris also must pose a threat to life, public health, safety, or to the
economic recovery of the community at large.
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