HomeMy Public PortalAbout2023-55 Approving an interlocal agreement with Miami-Dade County related to the KB Coastal Storm Risk Management Feasibility StudyRE S O L U T I O N N O . 2 0 2 3 -5 5
A RE S O L U T I O N O F T H E V IL L A G E C O UN C I L O F T H E
V IL L A G E O F K E Y B I S C A Y N E , F L O RI D A , A P P R O V IN G
A N I N T E RL O C A L A G RE E M E N T W I T H M IA M I-D A D E
C O U N T Y RE L A T E D T O T H E KE Y B I S C A Y N E C O A S T A L
S T O RM RI S K M A N A G E M E N T (C R S M ) F E A S IB IL IT Y
S T U D Y ; P R O VI D I N G F O R A U T H O RI Z A T IO N ; AN D
P R O VI D IN G F O R AN E F F E C T IVE D A T E .
W H E RE A S , the Village of Key Biscayne (the "Village") seeks to evaluate the Village's
risk with respect to shoreline erosion and back bay storm surge inundation in order to reduce
damages due to coastal flooding; and
WHEREAS, the U.S. Army Corps of Engineers (the "Army Corps") has included the
Village in its Fiscal Year 2023 work plan for the Key Biscayne Coastal Storm Risk Management
(CRSM) Feasibility Study (the "Study"); and
WHEREAS, the Army Corps has proposed entering into a Federal Cost Share Agreement
(the "FCSA") with Miami-Dade County (the "County"), as the local sponsor, which establishes a
50/50 cost-share percentage between the Army Corps and the County for the total cost of the
Study; and
WHEREAS, the County has proposed entering into an interlocal agreement with the
Village, attached hereto as Exhibit "A" (the "Interlocal Agreement"), which establishes a 50/50
cost-share percentage between the County and the Village for the County's share pursuant to the
FCSA; and
WHEREAS, the Village Council desires to approve the Interlocal Agreement relating to
the Study and authorize the Village Manager to enter into the Interlocal Agreement with the
County, in substantially the form attached hereto as Exhibit "A", for the Village's share; and
WHEREAS, the Village Council finds that this Resolution is in the best interest and
welfare of the residents of the Village.
N O W , T H E RE F O RE , B E IT RE SO L V E D B Y T H E V IL L A G E C O U N C IL O F TH E
V IL L A G E O F K E Y B ISC A Y N E , F L O RI D A , A S FO L L O W S :
Section 1. R ecitals. That each of the above-stated recitals are hereby adopted,
confirm ed, and incorp ora ted herein.
Section 2. A pp roval. That the V ill age Council appro ves the Interlocal A greement
w ith the C ounty, in substantially the fo rm attached hereto as Exh ibit "A ," fo r the Study.
Section 3. A uthorization. That the V ill age M anager is hereby authorized to execute
the Interlocal A greem ent, in substantially the fo rm attached hereto as Exhibit "A ," fo r the V illage's
shar e in conn ection w ith the Study, and any required or related agreements, am endm ents, or
docum ents which are required to im plem ent the purp oses of this Resolution and the Interlocal
A greem ent, subject to the appro val of the V ill age Attorn ey as to fo rm, content, and legal
suffi ciency. The Vill age M anager is fu rther authorized to pay fo r the V illage's share pursuant to
the Interlocal A greem ent subject to budgeted fu nds.
Section 4. E ffective D ate. This Resolution shall becom e effective imm ediately upon
adoption.
PA SSE D and A D O PTED this 26th day of __ ~Se_p~te~m_b~e_r , 2023.
JO E I. RA SCO
M A Y O R
A T T E ST:
VIL LA G E CLE RK
Page 2 of3
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
~p~
WE ISS SEROTA HELFMAN COLE & BIERMAN, P.L.
VILLAGE ATT ORN EY
Page 3 of3
IN T E RL O C A L A G RE E M E N T
betw een
THE VILLAGE OF KEY BISCAYNE
AND
MIAMI-DADE COUNTY
FOR
COASTAL STORM RISK MANAGEMENT FEASIBILITY STUDY
MIAMI-DADE COUNTY
(305) 375-2531
111 NW 1st STREET 29th FLOOR ' MIAMI, FL 33128
INTERLOCAL AGRE EM ENT
BETW EEN
THE VILLAGE OF KE Y BISCAYNE (VILLAGE)
AND
M IAM I-DADE COUNTY (COUNTY)
FOR THE KEY BISCAYNE, FLORIDA COASTAL STORM RI SK M ANAGEM ENT
(CSRM ) FEASIBILITY STUDY
THIS INTERL OCAL AGRE EMENT, (the "Interlocal Agreement") by and between
Miami-Dade County, a political subdivision of the State of Florida (hereinafter the "County" or
the "Non-Federal Sponsor"), and the Village of Key Biscayne, a municipal corporation of the State
of Florida (the "Village") is entered into as follows:
WITNESS ETH
WHEREAS, Public Law 84-71, June 15, 1955 (69 Stat. 132), as modified, authorizes the
Secretary of the Army, acting though the Chief of Engineers, to conduct an investigation into
coastal storm risk management along the eastern and southern seaboard of the United States with
respect to hurricanes; and
WHEREAS, the County has been asked by the Department of the Army (the "Federal
Governm ent") to serve as the Non-Federal Sponsor to the Federal Governm ent for the Key
Biscayne Coastal Storm Risk Management (CSRM ) Feasibility Study; and
WHEREAS, for this Key Biscayne CRSM Feasibility Study, the Federal Governm ent has
cost-sharing requirements with which the County, as the Non-Federal Sponsor, would need to
comply; and
WHEREAS, before the Federal Governm ent will begin the Key Biscayne CSRM
Feasibility Study, the Federal Governm ent will require the County, as Non-Federal Sponsor, to
enter into a separate agreement (hereinafter the "Non-Federal Sponsor Agreement")with the
Federal Governm ent by which the County would be required to contribute fifty percent (50%) of
the study costs for the Key Biscayne CRSM Feasibility Study; and
WHEREAS, the Village is anticipated to benefit from the Key Biscayne CRSM Feasibility
Study; and
WHEREAS, it is the intent of the County and the Village to enter into this Interlocal
Agreement in order have the Village cost-share the Non-Federal Sponsor contribution for the Key
Biscayne CSRM Feasibility Study; and
WHEREAS, the Village wishes to contribute twenty five percent (25%) of the total study
costs of the Key Biscayne CRSM Feasibility Study, which is also equivalent to half of what the
County will be required to contribute to the Federal Governm ent pursuant to its Non-Federal
Sponsor Agreement; and
WHEREAS, pursuant to this Interlocal Agreement between the County and the Village,
the Village is agreeing to make such financial contributions, which shall be paid to the County to
2 of 10
a s s is t w ith th e C o u n ty 's c o s t-s h a r in g r e q u ir e m e n ts a s N o n -F e d e ra l S p o n s o r fo r th e K e y B is c ay n e
C R S M F e a s ib ility S t u d y ; a n d
WHEREAS, the County is entering into the Non-Federal Sponsor Agreement with the
Federal Government in reliance upon the representations and financial commitments by the
Village that are contained in this Interlocal Agreement.
Now, therefore, in consideration of the mutual promises and covenants contained herein
and the mutual benefits to be derived from this Interlocal Agreement, the parties hereto agree as
follows:
ARTICLE I - DEFINITIONS
A. The term "Interlocal Agreement" shall mean this document, including any written
amendments, attachments, and other written documents, which are expressly incorporated
by reference.
B. The term "written notice" shall mean written communication between the parties.
C. The term "Study" means the activities and tasks required to identify and evaluate
alternatives and the preparation of a decision document that, as appropriate, recommends
a coordinated and implementable solution for preventing storm damages primarily due to
coastal flooding because of hurricanes and storms from the coastal and back bay areas at
Key Biscayne, Miami-Dade County, Florida.
D. The term "study costs" means all costs incurred by the Government and Non-Federal
Sponsor after the effective date of the FCSA that are directly related to performance of the
Study and cost shared in accordance with the terms of the FCSA. The term includes the
Government's costs for preparing the PMP; for plan formulation and evaluation, including
costs for economic, engineering, real estate, and environmental analyses; for preparation
of a floodplain management plan if undertaken as part of the Study; for preparing and
processing the decision document; for supervision and administration; for Agency
Technical Review and other review processes required by the Government; and for
response to any required Independent External Peer Review; and the County's creditable
costs for in-kind contributions, if any. The term does not include any costs for dispute
resolution; participation by the Government, the County, and the Village in the Study
Coordination Team to discuss significant issues and actions; audits; an Independent
External Peer Review panel, if required; or negotiating the FCSA and this Interlocal
Agreement.
E. The term "Non-Federal Sponsor" shall mean Miami-Dade County.
F. The term "PMP" means the project management plan, and any modifications thereto,
developed by the Government in consultation with the County, that specifies the scope,
cost, and schedule for Study activities and tasks, including the County's in-kind
contributions, and that guides the performance of the Study.
3 of 10
G. The term "fiscal year" means one year beginning on October l " and ending on September
30th of the following year.
ARTICLE II-OBLIGATIONS OF THE PARTIES
A. The Village shall be responsible for 25 percent (25%) of the study costs (equal to 50 percent
of the Non-Federal Sponsor cost-share), as provided in this Interlocal Agreement, and such
funds shall be paid to the County in accordance with the provisions and payment schedule
as provided herein.
B. The Village acknowledges and agrees that ultimately, the contents of solicitations, award
of contracts, execution of contract modifications, and resolution of contract claims shall be
exclusively within the control of the Federal Governm ent per the FCSA.
C. The Village shall not use Federal program funds to meet any of its obligations under this
Interlocal Agreement unless the Federal agency providing the funds verifies in writing that
the funds are authorized to be used for the Study. Federal program funds are those funds
provided by a Federal agency, plus any non-Federal contribution required as a matching
share therefor.
ARTICLE III-INITIAL PAYM ENT OF FUN DS BY THE VILLAGE TO THE
COUN TY
A. According to the Federal Governm ent, the study costs are currently estimated to be $3
million, with the Federal Governm ent's share of such costs projected to be $1.5 million,
the County's share of such costs projected to be $750,000.00, and the Village's share of
such costs projected to be $750,000.00. The Village's $750,000.00 share shall be referred
to herein as the Village's initial share. The Federal Governm ent has represented that the
dollar amounts in this paragraph A are only estimates that are subject to adjustment by the
Federal Government and as such, cannot be construed as the total financial responsibilities
of the Federal Government, the County, and the Village.
B. Within 15 days of the Effective Date of this Interlocal Agreement, the Village shall pay
$12,500.00 to the County. The County will transfer said funds to the Federal Governm ent
upon request by the Federal Government.
C. With respect to funds beyond the $12,500 referenced in paragraph B, the Federal
Government will advise the County, as the Non-Federal Sponsor, with written notice of
the amount of funds required. Pursuant to the County's Non-Federal Sponsor Agreement
with the Federal Government, the County would need to provide the full amount of such
requested funds to the Federal Government within 15 calendar days of such written notice.
It is anticipated that the Federal Government could provide multiple such notices.
D. With respect to the balance of the Village's $750,000.00 initial share, the County shall
request payment from the Village, of its twenty-five percent (25%) share, with respect to
any requests or notifications for funds from the Federal Governm ent for the Key Biscayne
4 of 10
CRSM Feasibility Study. The total amount requested from the Village for the initial share
shall not exceed $750,000. Payment by the Village is to be made as requested in the bill
presentation. Failure to pay the agreed-upon costs to the County in accordance with this
Agreement shall be deemed default by the Village.
ARTICLE IV - SUBSEQUENT PAYMENTS OF FUNDS BY THE VILLAGE
TO THE COUN TY
A. This Article relates to the Village's required cost-share payments to the County, which
shall be in addition to the Village's $750,000.00 initial share that is due to the County
pursuant to Art icle III above.
B. The Federal Governm ent projects that the Key Biscayne CRSM Feasibility Study may cost
over the initial $3 million, and the Village shall be responsible for twenty-five percent
(25%) of the total study costs, as determined by the Federal Government.
C. In the event that the Federal Governm ent determines that more than $3 million is needed
in total study costs for the Key Biscayne CRSM Feasibility Study, the Federal Governm ent
will advise the County, as the Non-Federal Sponsor, wi th written notice of the amount of
funds required. Pursuant to the County's Non-Federal Sponsor Agreement with the Federal
Governm ent, the County would need to provide the full amount of such requested funds to
the Federal Governm ent within 15 calendar days of such written notice. It is anticipated
that the Federal Government could provide multiple such notices.
D. The County shall provide wr itten notice to the Village of its twenty-five percent (25%)
share, with respect to any requests or notifications for funds from the Federal Governm ent
for the Key Biscayne CRSM Feasibility Study. The County shall request payment from the
Village, of its twenty-five percent (25%) share, with respect to any requests or notifications
for fun ds from the Federal Governm ent for the Key Biscayne CRSM Feasibility Study.
Payment by the Village is to be made as requested in the bill presentation. Failure to pay
the agreed-upon costs to the County in accordance with this Agreement shall be deemed
default by the Village.
E. The County shall provide to the Village the monthly reports generated by the Federal
Governm ent setting forth estimated study costs and the Federal Government's and the Non
Federal Sponsor's estimated shares of such costs as defined in the FCSA.
ARTICLE V -TERM INATION
A. Notwithstanding anything herein to the contrary, either party shall have the right to
terminate this Interlocal Agreement, by giving written notice of termination to the other
party, in the event that the other party is in material breach of this Interlocal Agreement.
B. Termination of this Interlocal Agreement by any Party is not effective until five (5)
business days following receipt of the written notice of termination.
5 of 10
C. In the event of term ination of this Interlocal Agreement, the Village shall be responsible
fo r 50 percent (50%) of any remaining payments due by the County to the Federal
G overnm ent fo r any w ork or costs or obligation incurred through the date such termination
is effective. The County shall invoice the Village pursuant to Article IV. The requirements
of this para gra ph shall survive termination of this Interlocal Agreement.
A RTICLE VI - GOVERNING LAW
This Interlocal A greem ent shall be governed by and construed in accordance with the laws of the
State of Florida. The County and the Village agree to submit to service of process and jurisdiction
of the State of Fl orida fo r any contro versy or claim arising out of or relating to this Agreement or
a breach of this Interlocal A greem ent. Venue for any court action between the parties for any such
contro versy arising from or related to this Interlocal Agreement shall be in the Eleventh Judicial
C ircuit in and fo r M iam i-D ade County, Florida, or in the United States District Court for the
Southern D istrict of Flor ida, in M iami-Dade County, Florida.
A RTICLE VII - ENTIRE TY OF AGRE EM ENT
The parties agree that there are no commitments, agreements, or understandings concerning the
subject m atter of this Interlocal A greement that are not contained in this Interlocal Agreement, and
that this Interlocal A greement contains the entire agreement between the parties as to all matters
contained herein. A ccordingly, it is agreed that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or wr itten. It is further
agreed that any oral representations or m odifications concerning this Interlocal Agreement shall
be of no fo rce or effect, and that this Interlocal Agreement may be modified, altered or amended
only by a w ritten am endment duly executed by both parties hereto or their authorized
representatives.
AR TICLE V III- MAIN TENACE OF RE CORD S AND AUDIT
A. The County and the V illage shall maintain books, records, documents, or other evidence
pertaining to costs and expenses for a m inimum of thr ee (3) years after the final accounting
and m ake such m aterials reasonably available for examination, audit, or reproduction by
either party and by the Federal Government.
B. The Federa l G overnm ent m ay conduct, or arrange for the conduct of, audits of such books,
records, docum ents, or other evidence.
A RTICLE IX RE LATI ONSHIP OF THE PARTIE S
The parties agree that the V illage and the County are each an independent entity and neither is to
be considered the offer, agent, or em ployee of the other. No party or its offi cers, elected or
appointed officials, em ployees, agents, independent contractors or consultants shall be considered
em ployees or agents of any other party, nor to have been authorized to incur any expense on behalf
of any other party, nor to act for or to bind any other party , nor shall an employee claim any right
in or entitlem ent to any pension, workers' compensation benefit, unemployment compensation,
civil service or other em ployee rights or privileges granted by operation oflaw or otherwise, except
thr ough and against the entity by whom they are employed.
6 of 10
A R TICLE X - N O TICES
A ny notice, consent, or other com m unication required to be given under this Interlocal A greement
shall be in w riting, and shall be considered given w hen delivered in person or sent by facsimile or
electro nic m ail (pro vided that any notice sent by facsim ile or electro nic m ail shall simultaneously
be sent personal delivery, overn ight cour ier or certified m ail as provided herein), one (1) business
day aft er being sent by reputable overn ight carrier or thr ee (3) business days after being m ailed by
certified m ail, return receipt requested, to the parties at the addresses set fo rth below ( or at such
other address as a party m ay specify by notice given pursuant to this Section to the other party):
T he C ounty :
DERM Director
701 N W pt C ourt 4th Floor ' M iam i, FL 3313 6
The V ill age:
K ey Biscayne V illage M anager
88 W . M cIntyre Street, Suite 210
K ey Biscayne, FL 3 314 9
A party m ay change the recipient or address to w hich such com m unications are to be directed by
giving wr itten notice to the other party in the m anner pro vided in this Art icle.
A RTICLE X I - CON FID EN TIA LITY
To the extent perm itted by the law s govern ing each party , the parties agree to m aintain the
confidentiality of exchanged info rm ation w hen requested to do so by the pro viding party.
A RTI CLE X II -T H IRD PA R TY RI G H TS, BEN EFITS, OR LI A BILI TIE S
N othing in thi s Interlocal A greem ent is intended, nor m ay be construed, to create any rights, confer
an y benefits, or relieve any liability , of any kind w hatsoever in any third person not a party to this
Interlocal A greem ent.
A RTICLE XIII-M O D IFICA TI ON AN D A M EN D M EN T
Except as expressly perm itted herein to the contra ry, no m odification, am endm ent, or altera tion in
the term s or conditions contained herein shall be effective unless contained in a w ritten document
executed w ith the sam e fo rm ality and equal dignity herew ith.
A RTICLE X IV - W A IY ER
T here shall be no w aiver of any right related to this Interlocal A greem ent unless in w riting and
signed by the part y w aiving such right. N o delay or failur e to exercise a right under this Interlocal
A greem ent shall im pair such right or shall be constru ed to be a w aiver thereof. A ny w aiver shall
be lim ited to the part icular right so w aived and shall not be deemed a w aiver of the sam e right at
a later tim e or of any other right under this Interlocal A greem ent. W aiver by any party of any
breach of any pro vision of this A greem ent shall not be considered as or constitute a continuing
w aiver or a w aiver of any other breach of the sam e or any other pro vision of this Interlocal
A greem ent.
7 of 10
ARTICLE XV -RE PRE SENTATION OF THE VILLAGE
The Village represents that this Interlocal Agreement has been duly authorized, executed, and
delivered by Mayor and Council, as the governing body of the Village of Key Biscayne, Florida
and it has granted the Manager of the Village of Key Biscayne, or designee, the required power
and authority to execute this Interlocal Agreement.
ARTICLE XVI -RE PRE SENTATION OF THE COUN TY
The County represents that this Interlocal Agreement has been duly approved, executed, and
delivered by the Board, as the governing body of the County, and it has granted the Miami-Dade
County Mayor or Mayor's designee the required power and authority to execute this Interlocal
Agreement.
ARTICLE XVII - INVALIDITY OF PROVISIONS, SEVERA BILI TY
Wherever possible, each provision of the Interlocal Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this Interlocal Agreement
shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Interlocal Agreement, provided that the material purpose of this
Interlocal Agreement can be determined and effectuated.
ARTICLE XVIII - INDEMN IFICATION
The Village shall indemn ify and hold harm less the County and its officers, employees, agents and
instrumentalities from any and all liability, losses or damages, including attorney's fees and costs
of defense, which the County or its officers, employees, agents or instrumentalities may incur as a
result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out
of, relating to or resulting from the perform ance of this Agreement by the Village or its employees,
agents, servants, partners, principals or subcontractors. The Village shall pay all claims and losses
in connection therewith and shall investigate and defend all claims, suits or actions of any kind or
nature in the name of the County, where applicable, including appellate proceedings, and shall pay
all costs, judgements and attorney's fees which may issue thereon. Provided, however, this
indemnification shall only be to the extent and within the limitations of Section 768.28 Fla. Stat.,
subject to the provisions of that Statute whereby the Village shall not be held liable to pay a
personal injury or property damage claim or judgement by any one person which exceeds the sum
of $200,000, or any claim or judgement or portions thereof, which, when totaled with all other
claims or judgement paid by the Village arising out of the same incident or occurrence, exceed the
sum of $300,000 from any and all personal injury or property damage claims, liabilities, losses or
causes of action which may arise as a result of the negligence of the Village.
The County shall indemnify and hold harmless the Village and its offi cers, employees, agents and
instrumentalities from any and all liability, losses or damages, including attorney's fees and costs
of defense, which the Village or its offi cers, employees, agents or instrumentalities may incur as a
result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out
of, relating to or resulting from the negligence of the County or its employees, agents, servants,
partners, principals or subcontractors. The County shall pay all claims and losses in conn ection
8 of 10
th e re w ith a n d sh a ll in v e stig a te a n d d e fe n d a ll cl a im s, su its or actio n s of an y k in d o r n a tu re in th e
n a m e o f th e V ill a g e , w h e re a p p lic a b le , in cl u d in g ap p e ll a te p ro c e e d in g s, an d sh a ll p ay a ll co sts,
ju d g e m e n ts a n d a tt o rn e y 's fe e s w h ic h m a y issu e th ereo n . P ro v id ed , h o w ev er, th is in d e m n ifi ca tio n
sh a ll o n ly b e to th e e x te n t a n d w ith in th e lim ita tio n s o f S e c tio n 7 6 8 .2 8 F la . S tat., su bje c t to th e
p ro v is io n s o f th a t S ta tu te w h e re b y th e C o u n ty sh a ll n o t b e h e ld lia b le to p a y a p e rso n a l inju ry or
p ro p e rty d am a g e cl a im o r ju d g e m e n t b y an y o n e p e rso n w h ic h ex ce e d s th e su m o f $2 0 0 ,0 0 0 , o r
a n y cl a im o r ju d g e m e n t o r p o rt io n s th ereo f, w h ic h , w h en to ta le d w ith all oth e r cl a im s o r ju d g e m e n t
p a id b y th e C o u n ty a risin g o u t o f th e sa m e in cid e n t o r o c c u rr e n ce , ex ce e d th e su m o f $3 0 0 ,0 0 0
fr o m an y a n d a ll p e rso n a l injur y o r p ro p e rt y d a m a g e cl a im s, lia b ilitie s, lo sse s or ca u se s o f actio n
w h ic h m a y a rise a s a re su lt o f th e n eg lig en c e o f th e C o u n ty .
IN W IT N E S S T H E RE O F , th e p a rt ie s thr o u g h th e ir d u ly a u th o riz ed rep re se n ta tiv e s h e reb y
e x e c u te th is IN T E RL O C A L A G RE E M E N T w ith an effec tiv e d ate o f ----------
2023.
Attest: VILLAGE OF KEY BISCAYNE, FLORIDA
88 W. McIntyre Street, Suite 210
Key Biscayne, Florida 33149
Attn: Steve Williamson, Village Manager
Village Clerk Date
Authorized signature on behalf
of the Village of Key Biscayne, Florida.
By:----------
Village Manager Date
MIAMI-DADE COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
By:---------
Mayor or Mayor's
Designee
Date
Stephen P. Clark Center
111 N.W. 1 Street
Miami, Florida 3 3128
9 of 10
ATTEST: Juan Fernandez-Barquin,
Clerk of the Court and Comptroller
By:
(Deputy Clerk Signature)
Print Name:
Date:
10 of 10