04/20/2022 Agreement
DATE: April 28, 2022
TO: Brittany Burtner, Sr. Administrator
Marine Resources
FROM: Liz Yongue, Deputy Clerk
SUBJECT: April 20th BOCC Meeting
Attached is an electronic copy of the following executed item.
K1 Interlocal Agreement between the Monroe County Board of County
Commissioners and the Village of Islamorada for Derelict Vessel Removal Services with Florida
Keys Stewardship Act funding provided by the Florida Department of Environmental Protection.
Should you have any questions please feel free to contact me at (305) 292-3550.
cc: County Attorney
Finance
File
INTERLOCAL AGREEMENT BETWEEN MONROE COUNTY,
FLORIDA, AND ISLAMORADA, VILLAGE OF ISLANDS,
FLORIDA, FOR DERELICT VESSEL REMOVAL SERVICES
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THIS INTERLOCAL AGREEMENT (Agreement) is entered into as of this day of
___________, 2022, between the Board of County Commissioners of Monroe County, Florida, a
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political subdivision of the State of Florida (“COUNTY” or “BOCC”) and Islamorada, Village of
Islands, a municipal corporation of the State of Florida (“CITY” or “VILLAGE”).
WITNESSETH:
WHEREAS, the COUNTY conducts derelict vessel removal services throughout waters
of the Florida Keys of Monroe County including within the various municipalities; and
WHEREAS, the COUNTY utilizes pre-qualified marine contractors for these services
who have specialized equipment, personnel and expertise for these technical services; and
WHEREAS, the COUNTY is authorized to conduct said services within the Florida Keys
National Marine Sanctuary (“FKNMS”) pursuant to FKNMS Letter of Authorization #2019-001-
A1; and
WHEREAS, in 2018, the VILLAGE received Florida Keys Stewardship Act funding from
the Florida Department of Environmental Protection (“FDEP”) via Grant Agreement No. LP44052
(“Grant”) for Hurricane Irma-related marine debris and sediment removal from canals located
within the VILLAGE; and
WHEREAS, the VILLAGE executed Amendment No. 5 to this Grant with FDEP on or
about November 23, 2021, to expand the work/scope of said project to include work to removal of
non-Hurricane Irma derelict vessels (Task 4) within the canals and nearshore waters of the Village
of Islamorada through an Interlocal Agreement with Monroe County; and
WHEREAS, the Grant also specifies that the VILLAGE shall also provide project
management (Task 3) for the above-referenced work including overseeing the VILLAGE’s
activities thereto and managingthe marine debris site; and
WHEREAS, the Grant provides funding in the amount of $305,299.46 for non-hurricane
related derelict vessel removal and $33,922.16 in non-hurricane related project management to the
VILLAGE for services performed between July 1, 2018 – March 31, 2024; and
WHEREAS, the VILLAGE has requested to partner with the COUNTY in connection
with provision of derelict vessel removal services, by utilizing the COUNTY’S existing contracts
with pre-qualified marine contractors in order to render its own derelict vessel removal services
under the County’s letter of authorization from the FKNMS to conduct said services and activities
thereto; and
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WHEREAS, it has been determined that it is in the interest of the residents of and visitors
to the County that an interlocal agreement for derelict vessel removal services be entered into with
the VILLAGE for the provision of said services and activities thereto; and
WHEREAS, the COUNTY shall be responsible for initiating the competitive procurement
for services from its pre-qualified marine contractors in the form of Invitations for Quotes and
awarding work via Task Order to the lowest bid as outlined in Resolution No. 194-2021; and
WHEREAS, the VILLAGE shall be and is responsible for encumbering funds and direct
payment of invoices to the hired/selected pre-qualified marine contractors with funding provided
by the Grant; and
WHEREAS, the COUNTY finds that this interlocal agreement (hereinafter “ILA” or
“Agreement”) is necessary to advance a valid public purpose, including but not limited to the
COUNTY’s valid health, safety, and welfare police power interests;
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, it is agreed between the COUNTY and the VILLAGE as follows:
Section 1. Recitals. The foregoing recitals are true and correct and are hereby
incorporated as if fully stated herein.
Section 2. Term.
2.1 The term of this Agreement shall run from the date on which the Agreement is
executed by both the Parties (“Effective Date”), and shall continue in full force
and effect through the Task No. 4 End Date of March 31, 2024, as specified in
FDEP Agreement No. LP44052 and up to and including October 31, 2024, unless
subject to earlier unilateral termination by Monroe County, or unless otherwise
subject to earlier termination by one or the other party as provided elsewhere
herein (cumulatively, “Term”).
Section 3. Payment and Scope of Services.
3.1 The VILLAGE shall directly provide, issue, and make any and all payments
to any and all pre-qualified marine contractors for derelict vessel removal
services rendered in connection with this ILA or FDEP Grant Agreement No.
LP44052. The VILLAGE shall make such direct provision, issuance, or
making of any and all such payments, in accordance with the written direction
of the COUNTY Marine Resources Office Senior Administrator. The
VILLAGE shall not be entitled to receive from the COUNTY, and the
COUNTY is not obligated to pay to the VILLAGE, or any natural or legal
person, any costs, damages, fees, expenses, or monies claimed, invoiced, or
incurred with respect to any derelict vessel removal services or activity/work
thereto rendered by any natural or legal person in connection with this ILA or
FDEP Grant Agreement No. LP44052.
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3.2 The COUNTY shall be responsible for initiating the competitive procurement
for services from its pre-qualified marine contractors in the form of Invitations
for Quotes and awarding work via Task Order to the lowest bid as outlined in
Monroe County Resolution No. 194-2021. Upon selection of low bidder by the
COUNTY, the COUNTY shall forward the competitive solicitation documents
and the quote for services to the VILLAGE. The VILLAGE shall promptly
encumber the necessary funds and provide the COUNTY with a copy of the
purchase order upon which the COUNTY will issue a Task Order to the hired
contractor granting the authorization to proceed. Upon completion of services
and approval of the work by the COUNTY, the COUNTY shall forward the
contractor’s invoice packet to the VILLAGE for payment processing. The
COUNTY shall be responsible for all coordination of activities with law
enforcement. The VILLAGE’s payments shall bemade in accordance with the
Local Government Prompt Payment Act. Invoices and requests for payment
must be in a form satisfactory to the Clerk. Payment invoices/requests must
describe in detail the services performed and the payment amount.
3.3 The VILLAGE shall be responsible for debris monitoring services as specified
in FDEP Grant Agreement No. LP44052.
3.4 The COUNTY will specify in Task Orders that the hired contractorshall
adhere to the terms and conditions specified in FDEP Grant Agreement No.
LP44052 including coordination with the VILLAGE for required project
monitoring services.
Section 4. Termination and Default.
4.1 The COUNTY is entitled to unilaterally terminate this ILA, with or without
cause, and shall not be required to provide written notice in advance thereof. In
addition, as provided herein, the Agreement may be terminated by the
VILLAGE, with or without cause, upon thirty (30) days’ written notice to the
COUNTY. The Agreement may also be terminated by mutual written agreement
of the parties. The VILLAGE shall remain liable for all compensation, payment,
and monies claimed for any and all work performed in connection with this
Agreement up to and including the date of termination, including any vendor
termination fees that may apply. This Agreement is subject to and conditional
upon funding provided by FDEP. In the event that funding from the FDEP is
withdrawn, reduced, altered, or limited in any way after the Effective Date of this
Agreement but prior to completion of the Agreement, the COUNTY may
terminate the Agreement, subject to renegotiation, at the discretion of the
COUNTY, under new funding limitations and conditions.
4.2 In the event of any failure of compliance by either party hereto with any of its
material obligations to the other party as provided for herein such action shall
constitute a default under this Agreement.
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4.3 Upon any such default, the non-defaulting party shall provide to the defaulting
party a written Notice ofsuch default, which Notice (“Default Notice”) shall
state in reasonable detail the actions the defaulting party must take to cure the
same.
4.4 The defaulting party shall cure any such default, within 30 days following the
date of the Default Notice.
4.5 Notwithstanding the provisions of this Section, if any such default by the
defaulting party remains uncured at the conclusion of any specified 30 day
cure period, and if the nature of the defaulting party’s obligations are such that
more than 30 days is required to effect cure, then the defaulting party shall not
be in default hereunder and the non-defaulting party shall not have the right to
exercise its termination rights granted herein as a result of any such default, if
the defaulting party commences cure within the applicable cure period and
thereafter diligently pursues cureto completion of performance.
4.6 In the event the defaulting party fails to affect any required cure as provided
for herein, the defaulting party shall be deemed to be in uncured default
hereunder, and the non-defaulting party shall have the right, but shall not be
obligated, upon written Notice to the defaulting party, to terminate this
Agreement.
4.7 If such Notice is given, this Agreement shall terminate on the date set forth in
the Notice and the parties shall be relieved of all rights and obligations
hereunder, except for any rights and obligations that expressly survive
termination.
Section 5. Hold Harmless and Indemnification.
5.1 The VILLAGE agrees to hold harmless the COUNTY and its officers and
employees, from liabilities, damages, losses, fees, and costs, including but not
limited to, all fines, suits, claims, demands, actions, costs, obligations, and
attorney’s fees, or liability of any kind, arising out of, related to, or in
connection with this ILA, including but not limited to the negligence,
recklessness, or intentional wrongful conduct of any person or party engaged
in any derelict vessel removal services arising out of, related to, or in
connection with this ILA, including but not limited to the work or activities of
any subcontractors.
5.2 To the extent permitted by law and subject to the provisions and monetary
limitations of Section 768.28, Florida Statutes, the VILLAGE, to the extent of
the COUNTY’S potential liability pursuant to section 768.28, Florida Statutes,
does hereby agree to defend, indemnify and hold the COUNTY, its officers,
agents, or employees, harmless from and against any and all liability, damages,
costs or expenses (including reasonable attorneys’ fees, costs, and expenses at
both the trial and appellate levels) arising from the acts or omissions of the
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VILLAGEor any third party vendor contracted by the VILLAGE in connection
with this Agreement.
Section 6. Notices.
6.1 All notices, requests, demands, elections, consents, approvals and other
communications hereunder must be in writing and addressed as follows, or to any
other address which either party may designate to the other party by mail:
If to Monroe County: Roman Gastesi, Jr.
County Administrator
Monroe County
Historic Gato Building
1100 Simonton Street
Key West, Florida 33040
With copies to: Robert B. Shillinger, Esq.
Monroe County Attorney
Monroe County Attorney’s Office
th
1111 12 Street, Suite 408
P.O. Box 1026
Key West, Florida 33041-1026
Emily Schemper
Senior Director, Monroe County Planning and
Environmental Resources Department
C/O Celia Hitchins
Senior Administrator, Monroe County Marine Resources
Office
2798 Overseas Highway
Marathon, FL 33050
And electronically to:Celia Hitchins, Senior Administrator, Monroe County
Marine Resources Office, at: Hitchins-
Celia@MonroeCounty-FL.gov
If to VILLAGE:Maria Bassett
Acting Village Manager/Finance Director
Islamorada, Village of Islands
86800 Overseas Highway
Islamorada, FL 33036
With a copy to: Roget V. Bryan, Esq.
VillageAttorney
Islamorada, Village of Islands
86800 Overseas Highway
Islamorada, FL 33036
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Section 7. Regulatory Powers.
7.1 Nothing contained herein shall be construed as waiving either party’s
regulatory approval or enforcement rights or obligations as it may relate to
regulations of general applicability, which may govern the Agreement.
7.2 Nothing herein shall be deemed to create an affirmative duty of either party to
abrogate its sovereign right to exercise its police powers and governmental
powers by approving or disapproving or taking any other action in accordance
with ordinances, rules and regulations, federal laws and regulations and state
laws and regulations.
Section 8. Attorneys’Fees and Waiver of Jury Trial.
8.1 In the event of any litigation arising out of this Agreement, the prevailing party
shall be entitled to recover its attorneys’ fees and costs, including the fees and
expenses of any paralegals, law clerks and legal assistants, and including fees
and expenses charged for representation at both the trial and appellate levels.
8.2 In the event of any litigation arising out of this Agreement, each party hereby
knowingly, irrevocably, voluntarily and intentionally waives its right to trial
by jury.
Section 9. Governing Law.
9.1 This Agreement shall be construed in accordance with and governed by the
laws of the State of Florida. Exclusive venue for any litigation or mediation
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arising out of this Agreement shall be in the 16 Judicial Circuit in and for
Monroe County, Florida. This Agreement is not subject to arbitration.
Section 10. Access to Records and Audits.
10.1 The VILLAGE shall comply with all public records and records retention
requirements mandated by Section 24, Article I, of the Florida Constitution,
and Chapter 119, Florida Statutes, and shall keep such records as are necessary
to document the performance of the Agreement and expenses as incurred, and
give access to these records at the request of COUNTY, the State of Florida,
the Federal Government, or authorized agents and representatives of said
government bodies. The VILLAGE shall also provide access to the personal
property reports, permits, and equipment purchased or utilized under this
Agreement. It is the responsibility of VILLAGE to maintain appropriate
records in accordance with generally accepted accounting principles
consistently applied to insure a properaccounting of all funds and
expenditures. Records shall be kept for a period of five (5) years following
execution of this Agreement. The VILLAGE understands that it shall be
responsible for repayment of any and all audit exceptions which are identified
by the Auditor General for the State of Florida, the Clerk of Court for Monroe
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County, the Board of County Commissioners for Monroe County, or their
agents and representatives. The COUNTY shall bill VILLAGE for the amount
of the audit exception and VILLAGE shall promptly repay any audit
exception. However, COUNTY warrants and represents that it has full
authority to fund the services and work described herein under the terms and
conditions specified herein. The COUNTY and VILLAGE shall allow and
permit reasonable access to, and inspection of, all documents, papers, letters
or other materials in its possession or under its control subject to the provisions
of Chapter 119, Florida Statutes, and made or received by the COUNTY and
VILLAGE in conjunction with this Agreement; and the COUNTY has the right
to unilaterally cancel this Agreement upon violation of this provision by
VILLAGE.
10.2 The COUNTY may cancel this Agreement for refusal by the VILLAGE, or
any party or person involved in the services or work thereto contemplated
herein, to allow access by the County Administrator or his designee to any
Records pertaining to work performed under this Agreement that are subject
to the provisions of Chapter 119, Florida Statutes.
10.3 The term “public records” and “records” shall be the same as such term has
been defined in Chapter 119, Florida Statutes, including but not limited to any
documents, books, data (electronic or hard copy), papers and financial records
that result from the VILLAGE’s performance of the services and work thereto
contemplated herein.
10.4 If the inspection or audit discloses that COUNTY funds paid to the VILLAGE
under this Agreement were used for a purpose not authorized by this
Agreement, then the VILLAGE must refund the funds improperly spent with
interest calculated pursuant to Section 55.03, Florida Statutes, with interest
running from the date the COUNTY paid the improperly spent funds to the
VILLAGE. This paragraph will survive the termination of this Agreement.
10.5 The COUNTY and VILLAGE shall allow and permit reasonable access to, and
inspection of, all documents, records, papers, letters, or other “public record”
materials in its possession or under its control subject to the provisions of
Chapter 119, Florida Statutes, and made or received by the COUNTY and
VILLAGE in conjunction with and in connection with this Agreement and
related to Agreement performance. The COUNTY has the right to unilaterally
cancel this Agreement upon violation of this provision by the VILLAGE.
Failure of the VILLAGE to abide by the terms of this provision shall be
deemed a material breach of this Agreement and the COUNTY may enforce
the terms of this provision in the form of an adversarial administrative
proceeding or court action and shall, as a prevailing party, be entitled to
reimbursement of all attorneys’ fees and costs associated with such
proceeding(s) or action(s). This provision shall survive any termination or
expiration of the Agreement.
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10.6 The VILLAGE is encouraged to consult with its counsel regarding theFlorida
Public Records Act in order to comply with this provision. Pursuant to F.S.
119.0701 and the terms and conditions of this Agreement, the VILLAGE is
required to:
(1) Keep and maintain public records that would be required by the COUNTY
to perform the service.
(2) Upon receipt from the COUNTY’s custodian of records, provide the
COUNTY with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed
the cost provided in this chapter or as otherwise provided by law.
(3) 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 Agreement term and following
completion of the Agreementif the VILLAGE does not transfer the records
to the COUNTY.
(4) Upon completion of the Agreement, transfer, at no cost, to the COUNTY
all public records in possession of the VILLAGE or keep and maintain
public records that would be required by the COUNTY to perform the
service. If the VILLAGE transfers all public records to the COUNTY upon
completion of the Agreement, the VILLAGE shall destroy any duplicate
public records that are exempt or confidential and exempt from public
records disclosure requirements. If the VILLAGE keeps and maintains
public records upon completion of the Agreement, the VILLAGE shall
meet all applicable requirements for retaining public records. All records
stored electronically must be provided to the COUNTY, upon request from
the COUNTY’s custodian of records, in a format that is compatible with
the information technology systems of the COUNTY.
(5) A request to inspect or copy public records relating to a COUNTY
Agreement must be made directly to the COUNTY, but if the COUNTY
does not possess the requested records, the COUNTY shall immediately
notify the VILLAGE of the request, and the VILLAGE must provide the
records to the COUNTY or allow the records to be inspected or copied
within a reasonable time.
If the VILLAGE does not comply with the COUNTY’s request for records,
the COUNTY shall enforce the public records Agreement provisions in
accordance with the Agreement, notwithstanding the COUNTY’s option and
right to unilaterally cancel this Agreement upon violation of this provision by
the VILLAGE. If the VILLAGE fails to provide public records to the
COUNTY or pursuant to a valid public records request from a third-party
within a reasonable time may be subject to penalties under Chapter 119,
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Florida Statutes, the COUNTY has the right to unilaterally terminate this
Agreement.
The VILLAGE shall not transfer custody, release, alter, destroy or otherwise
dispose of any public records unless or otherwise provided in this provision or
as otherwise provided by law.
IF THE VILLAGE HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES,
TO THE VILLAGE’S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS,
BRIAN BRADLEY AT PHONE# 305-292-3470 BRADLEY-
BRIAN@MONROECOUNTY-FL.GOV, MONROE
COUNTY ATTORNEY’S OFFICE 1111 12TH Street, SUITE
408, KEY WEST, FL 33040.
Section 11. Non-Assignability
11.1 This Agreement shall not be assignable by either party unless such assignment
is first approved by both parties.
Section 12. No Third-Party Beneficiaries.
12.1 Nothing contained herein shall create any relationship, contractual or
otherwise, with or any rights in favor of, any third party. No person or entity
shall be entitled to rely upon the terms, or any of them, of this Agreement to
enforce or attempt to enforce any third-party claim or entitlement to or benefit
of any service or program contemplated hereunder, and the VILLAGEand the
COUNTY agree that neither the VILLAGE nor the COUNTY or any agent,
officer, or employee of either shall have the authority to inform, counsel, or
otherwise indicate that any particular individual or group of individuals, entity
or entities, have entitlements or benefits under this Agreement separate and
apart, inferior to, or superior to the community in general or for the purposes
contemplated in this Agreement.
Section 13. Non-Waiver of Immunity.
13.1 Notwithstanding the provisions of Section 768.28, Florida Statutes, the
participation of the VILLAGEand the COUNTY in this Agreementand the
acquisition of any commercial liability insurance coverage, self-insurance
coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity to the extent of liability coverage, nor shall any
contract entered into by the VILLAGE or COUNTY be required to contain any
provision for waiver.
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Section 14. Privileges and Immunities.
14.1 All of the privileges and immunities from liability, exemptions from laws,
ordinances, and rules and pensions and relief, disability, workers’
compensation, and other benefits which apply to the activity of officers,
agents, or employees of any public agents or employees of the COUNTY,
when performing their respective functions under this Agreement within the
territorial limits of the COUNTY shall apply to the same degree and extent to
the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the COUNTY.
Section 15.
15.1 The VILLAGE and its employees, volunteers, agents, vendors, and similar
natural or legal persons, shall be and remain independent VILLAGE and not
agents or employees of the COUNTY with respect to all of the acts and
services performed by and under the terms of this Agreement. This Agreement
shall not in any way be construed to create a partnership, association or any
other kind of joint undertaking, enterprise or venture between the parties.
Section 16. Severability.
16.1 If any term, covenant, condition or provision of this Agreement (or the
application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining
terms, covenants, conditions and provisions of this Agreement, shall not be
affected thereby; and each remaining term, covenant, condition and provision
of this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the
accomplishment of the original intent of this Agreement. The COUNTY and
VILLAGE agree to reform the Agreement to replace any stricken provision
with a valid provision that comes as close as possible to the intent of the
stricken provision.
Section 17. Survival of Provisions.
17.1 Any terms or conditions of either this Agreement that require acts beyond the
date of the term of the Agreement, shall survive termination of the Agreement,
shall remain in full force and effect unless and until the terms or conditions are
completed and shall be fully enforceable by either party.
Section 18. Waiver.
18.1 The failure of either party to this Agreement to object to or to take affirmative
action with respect to any conduct of the other which is in violation of the
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terms of this Agreement shall not be construed as a waiver of the violation or
breach, or of any future violation, breach or wrongful conduct.
Section 19. Funding.
19.1 The parties agree that the VILLAGE’s responsibility under this Agreement is
to provide funding.
Section 20. Authority.
20.1 Each party represents and warrants to the other that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary
County and corporate action, as required by law.
Section 21. Section Headings.
21.1 Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provision of this Agreement.
Section 22. Execution in Counterparts.
22.1 This Agreement may be executed in any number of counterparts, each of which
shall be regarded as an original, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section 23. Entire Agreement/Modification/Amendment.
23.1 This writing contains the entire Agreement of the parties and supersedes any
prior oral or written representations. No representations were made or relied
upon by either party, other than those that are expressly set forth herein.
23.2 No agent, employee, or other representative of either party is empowered to
modify or amend the terms of this Agreement, unless executed with the same
formality as the parties’ preceding duly-executed Agreement.
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