HomeMy WebLinkAbout2012-128-1723 - Stormwater Systems 1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 City of Miami Gardens Agenda Cover Memo Council Meeting Date: September 12, 2012 Item Type: Resolution Ordinance Other X Fiscal Impact: Yes No Ordinance Reading: 1 st Reading 2 nd Reading X Public Hearing: Yes No Yes No Funding Source: Stormwater Advertising Requirement: Yes No X Contract/P.O. Required: Yes No RFP/RFQ/Bid #: X Strategic Plan Related Yes No Strategic Plan Priority Area: Enhance Organizational Bus. & Economic Dev Public Safety Quality of Education Qual. of Life & City Image Communication Strategic Plan Obj./Strategy: (list the specific objective/strategy this item will address) X Sponsor Name Dr. Danny O. Crew, City Manager Department: Public Works/Stormwater Short Title: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE CITY MANAGER AND THE CITY CLERK TO EXECUTE AND ATTEST RESPECTIVELY, THAT CERTAIN INTERLOCAL AGREEMENT WITH MIAMI ‐DADE COUNTY AND OTHER DADE COUNTY MUNICIPALITIES TO PROVIDE SERVICES TO IDENTIFY AND CONTROL POLLUTANT DISCHARGES IN MUNICIPAL STORMWATER S YSTEMS, IN ACCORDANCE WITH THE NATIONAL POLLUNTANTS DISCHARGE ELIMINATION SYSTEM STORMWATER PROGRAM, FOR A FIVE (5) YEAR TERM, IN THE ANNUAL AMOUNT OF EIGHTEEN THOUSAND, FOUR HUNDRED SEVENTY DOLLARS ($18,470.00), A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT “A”; PROVIDING FOR INSTRUCTIONS TO THE CITY CLERK; PROVIDING FOR THE ADOPTI ON OF REPRESENTATIONS; PROVIDING FOR AN EFFECTIVE DATE Staff Summary: Background The National Pollutants Discharge Elimination System (NPDES) Stormwater Program regulates stormwater discharges from three potential sources: municipal separate storm sewer systems (MS4s), construction activities, and industrial activities. Most stormwater discharges are considered point ITEM K-8) CONSENT AGENDA RESOLUTION Interlocal Agreement w/ Miami-Dade County
1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 sources, and operators of these sources may be required to receive an NPDES permit before they can discharge. This permitting mechanism is designed to prevent stormwater runoff from washing harmful pollutants into local surface waters such as canals, rivers, or lakes. Stormwater Management is important to our City and neighboring communities. The Florida Department of Environmental Protection is authorized by the Environmental Protection Agency (EPA) to administer the NPDES program through permits. The permits are issued for (5) five years and the City of Miami Gardens has been named as a co ‐permitee through Miami ‐Dade County. As co ‐permitees Miami Dade County performs special EPA required services for an annual fee. Current Situation This proposed interlocal agreement covers the annual cost ($18,470) for Miami Dade County to provide two activities that are essential to the EPA NPDES Requirements. These two activities shall involve testing and monitoring of stormwater discharges into surface waters (Activity #1) and the Best Management Practices (Activity #2) mandated by EPA regulations. Proposed Action: It is recommended that City Council authorize the City Manager to execute the Five Year Interlocal Agreement with Miami Dade County to provide services to identify and control pollutants discharges in the shared municipal separate stormwater sewer system per EPA NPDES requirements. Attachment: Attachment A – Miami Dade County 5 ‐Year NPDES Co ‐Permittee Interlocal Agreement
INTERLOCAL AGREEMEN T BETWEEN ALL CO-PERMITTEES NAMED IN NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT NO. FLS000003-003 AND MIAMI-DADE COUNTY PROVIDING FOR PERFORMANCE OF PROF ESSIONAL SERVICES BY MIAMI-DADE COUNTY, AND ALSO BETWEEN ALL CO-PERMITTEES PROVIDING FOR IDENTIFICATION AND CONTROL OF POLLUTANT DISCHARGES IN SHARED MUNICIPAL SEPARATE STORM SEWER SYSTEMS, AND TO NEGOTIATE AND EXECUTE CHANGES TO THE SELECTION OF ACTIVITY PARTICIPATION BY CO-PERMITTEES This Interlocal Agreement ("Agreement") is made and entered into by, and between, all CO-PERMITTEES named in Florida Department of Environmental Pr otection Permit Number FL S000003-003, Authorization to Discharge under the National Pollutant Discharge E limination System. This Agreement provides for identification and control of discharg es from any and all Municipal Separate Storm Sewer Systems (MS4s) that may be shared by any of the parties to this Agreement, as required by the State of Florida Department of Environmental Protection (hereinafter referred to as DEP) pursuant to Section 403.0885, Florida Statutes, and DEP Rule 62-624, Florida Administrati ve Code, and the Environmental Protection Agency (hereinafter referred to as the "EPA") National Pollutant Discha rge Elimination System (hereinafter referred to as "NPDES") Permit Regulations for Storm Water Discharges Final Rule (hereinafter referred to as "NPDES Final Rule"). This Agreement further provides for the pr ofessional services required to accomplish the tasks set forth in the NPDES Final Rule and the NPDES MS4 Oper ating Permit that may be initiated and performed by Miami-Dade County on behalf of both the CO-PERMITTEES and MIAMI-DADE COUNTY . This Agreement also provides for the negotiation and execution of changes to the selection of activity participation by CO-PERMITTEES . Section I Definitions For purposes of this Agreement, the following terms shall apply: AGREEMENT shall mean this document, including any wr itten amendments theret o, and other written documents or parts thereof which are expres sly incorporated herein by reference. CO-PERMITTEE or CO-PERMITTEES shall mean the following municipalities and agencies named in NPDES Permit No. FLS000003-003 as CO-PERMITTEES : City of Aventura, Bal Harbour Village, Town of Bay Harbor Islands, City of Coral Gables, Town of Cutle r Bay, City of Doral, Village of El Portal, Town of Golden Beach, City of Hialeah Gardens, City of Home stead, Indian Creek Village, Village of Key Biscayne, Town of Medley, City of Miami B each, City of Miami Gardens, Town of Miami Lakes, Village of Miami Shores, City of Miami Springs, City of North Bay Villa ge, City of North Miami, City of North Miami Beach, City of Opa-locka, Villag e of Palmetto Bay, Village of Pinecrest, City of South Miami, City of Sunny Isles Beach, Town of Surfside, Village of Virginia Garden s, City of West Miami, Florida Department of Transportation (FDOT) District VI, Florida Department of Transporta tion (FDOT) Turnpike Enterprise, Miami-Dade Expressway Authority (MDX), and Miami-Dade County. COUNTY shall mean Miami-Dade County
2 FORCE MAJEURE shall mean an act of God, epidemic, li ghtning, earthquake, fire, explosion, hurricane, flood or similar occurrence, strike, an act of a public enemy, or blockade, insurrection, riot, general arrest or restraint of government and people, ci vil disturbance or simila r occurrence, which has had or may reasonably be expected to have a material adverse effect on the rights or obligati ons under this Agreement. MS4 shall mean municipal separate storm se wer system, as set forth in 40C.F.R.122.26. In all other instances, terms used in this Agreement shall have the definitions contained in the EPA NPDES Final Rule 40 CFR Parts 122, 123 and 124. Section II Term of Agreement This Agreement shall become effective, and supersede the current interlocal agre ement, on October 1, 2012. This Agreement shall expire on September 30, 2017, or un til a replacement interlocal agreement is executed, whichever is later. Section III Scope of Work The parties hereto agree that the EPA is requiring as part of the NPDES MS4 Operating Permit the sampling, monitoring, and analysis of a vari ety of storm sewer systems throughout Miami-Dade County. The parties hereby agree that the water monitoring annual costs (Activity 1) attributable to this operating permit shall be shared by those CO-PERMITTEES who elect to participate in this Acti vity, and the costs sh all be based on a percentage rate obtained by dividing the number of outfalls which dr ain to United States bodies of water existing in the geographical boundaries of each CO-PERMITTEE by the total number of outfalls existing within the geographic boundaries of all CO-PERMITTEES . The parties further agree that the be st management practices (BMP) (Activ ity 2) and basin management action plan (BMAP/WTW) (Activity 3) costs attributable to this operating permit shall be shared by those CO-PERMITTEES who elect to participate in thes e Activities, and the costs shall be based on a percentage rate obtained by dividing the roadway MS4 drainage ar ea existing in the geogr aphical boundaries of each CO-PERMITTEE by the total roadway MS4 drainage area exis ting within the geogra phic boundaries of all CO-PERMITTEES . These costs are included in Attachment “A” of this Agreement. Furthermore, 40 CFR 122.26(d)(2)(i)(D) requires control of pollutants through interl ocal agreements, making each NPDES CO-PERMITTEE responsible for discharges from their MS4 to the MS4 of another NPDES CO-PERMITTEE or to the waters of the United States. This Agreement sets forth the agreement of the CO-PERMITTEES and the COUNTY and between all of the CO-PERMITTEES with respect to shared responsibilities in the identification and contro l of discharges from one MS4 to another. Section IV COUNTY's Obligations 1. Compliance with NPDES MS4 Operating Permit The COUNTY shall perform monitoring and sampling activities as required in Miami-Da de County's NPDES MS4 Operating Permit.
3 2. Permits The COUNTY shall obtain all applicable federal, stat e and local permits an d approvals (with the exception of permits and approvals required by CO-PERMITTEES , if any, which shall be obtained by the respective CO-PERMITTEE ), which are required to perform ac tivities under the NPDES MS4 Operating Permit. 3. Report The COUNTY shall provide the CO-PERMITTEES with a report, on an annual basis, with the results of the monitoring and sampling activitie s required under the NPDES Operating Permit. 4. Notice of COUNTY Meeting The COUNTY shall provide the CO-PERMITTEES with oral or written notice of all regular meetings held by COUNTY staff for the purpose of revi ewing the compliance status with the NPDES MS4 Operating Permit. Section V CO-PERMITTEES' Obligations 1. Prevention of Theft of COUNTY Equipment The CO-PERMITTEES shall take reasonable steps to prevent theft or vandalism of COUNTY equipment located within the CO-PERMITTEE'S geographic boundary. The CO-PERMITTEES agree that such equipment may be placed within each CO-PERMITTEE'S geographic boundary for extended periods of time, as necessary to complete the sampling and monitoring tasks contemplated by this Agre ement and the NPDES MS4 Operating Permit. 2. Compensation Each CO-PERMITTEE will reimburse the COUNTY for costs of activities performed over the preceding fiscal year in accordance with A ttachment “A”, and as spec ified in the Execution in Counterparts form for that fiscal year. The COUNTY will bill each CO-PERMITTEE annually, within six (6) months after the end of the fiscal year, fo r actual amounts expended during the prior fiscal year. Payment by the CO-PERMITTEE is to be made not later than forty-five (45) days after the bill presentation. Failure to pay the agreed-upon costs to the COUNTY in accordance with this Agreement shall be deemed default by the CO-PERMITTEE that fails to pay pursuant to this Agreement. The expenditures for the final fiscal year that this Agreement is valid will be invoiced by the COUNTY and paid by the CO-PERMITTEES during the following fiscal year. 3. Access The CO-PERMITTEES shall provide the COUNTY with reasonable access at all times as necessary to perform the sampling and monitoring requi red by this Agreement of any storm sewer systems which may be located within the CO-PERMITTEE'S geographic boundary. Section VI Indemnification The CO-PERMITTEE shall indemnify and hold harmless the COUNTY and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorn ey’s fees and costs of defense, which the COUNTY or its officers, employees, agents or in strumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature aris ing out of, relating to or resulting from the performance of this Agreement by the CO-PERMITTEE or its employees, agents, servants, partners, principa ls or subcontractors. The CO-PERMITTEE shall pay all claims and losses in connection therewith and shall investigate and defend all cl aims, suits or actions of any kind or nature in the name of the COUNTY , where applicable, including appellate proc eedings, and shall pay all costs, judgements
4 and attorney’s fees which may issue thereon. Provided, however, this indemnifica tion shall only be to the extent of and within the limitations of Section 768.28 Fla Stat., and subject to the provisions of that Statute whereby the CO-PERMITTEE shall not be held liable to pay a pers onal 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 j udgement paid by the CO-PERMITTEE 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 CO-PERMITTEE , provided further that any CO-PERMITTEE’s liability hereunder shall be based on that CO-PERMITEE’s performance of this Agreement only, and no CO-PERMITTEE shall be liable for indemnification based on another CO-PERMITTEE’s performance of this Agreement. The COUNTY shall indemnify and hold harmless the CO-PERMITTEE and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorn ey’s fees and costs of defense, which the CO-PERMITTEE or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, su its, causes of actions or proceedings of a ny kind or nature arising out of, relating to or resulting from the perfor mance of this Agreement by the COUNTY or its employees, agents, servants, partners, principals or subcontractors. The COUNTY shall pay all claims and lo sses in connec tion therewith and shall investigate and defend all claims, suits or actions of any ki nd or nature in the name of the CO-PERMITTEE , where applicable, including ap pellate proceedings, and shall pay all costs, judgements and attorney’s fees which may issue thereon. Provided, howev er, this indemnification sh all only be to the extent and within the limitations of Sectio n 768.28 Fla Stat., subject to the provi sions of that Statute whereby the COUNTY shall not be held liable to pa y a personal injury or property da mage claim or judgement by any one person which exceeds the sum of $200,000, or any claim or judgement or portions ther eof, which, when totaled with all other claims or judgement paid by the COUNTY 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 COUNTY . Section VII County Event of Default Without limitation, the failure by the COUNTY to substantially fulfill any of its material obligations in accordance with this Agreement, unless justif ied by Force Majeure, shall constitute a "COUNTY event of Default". If a COUNTY event of default should occur, the CO-PERMITTEE shall have all of the following rights and remedies which it may exercise singly or in combination: 1. The right to declare that this Agreem ent together with all rights granted to COUNTY hereunder are terminated, effective upon such date as is designated by the CO-PERMITTEE ; 2. Any and all rights provided under federal laws and the laws of the State of Florida.
5 Section VIII Co-Permittee Event of Default Without limitation, the failure by the CO-PERMITTEE to substantially fulfill any of its material obligations in accordance with this Agreement, unless just ified by Force Majeure, shall constitute a " CO-PERMITTEE Event of Default". If a CO-PERMITTEE Event of Default should occur, the COUNTY shall have all of th e following rights and remedies which it may exercise si ngularly or in combination: 1. The right to declare that this Agr eement together with all rights granted to CO-PERMITTEE hereunder are terminated, effective upon such date as is designated by the COUNTY ; 2. Any and all rights provided under federal laws and the laws of th e State of Florida. Section IX General Provisions 1. Authorization to Represent the CO-P ERMITTEE in NPDES MS4 Operating Permit The CO-PERMITTEE hereby authorizes the COUNTY to act on its behalf only with respect to: the activities under this Agreement; and compli ance with requirements of thos e monitoring, sampling, BMP, and BMAP portions under the NPDES MS4 Operating Permit. 2. Attendance at COUNTY Permit Review Meetings. The CO-PERMITTEE may, but is not required to, attend any or all regular meetings held by COUNTY staff for the purpose of reviewing the status of the NPDES MS4 Operating Permit. 3. Responsibility for Discharges The CO-PERMITTEES shall each be responsible for the control, investigation of and remedi al activities relating to discharges of pollutants from within their respective MS4 or boundaries to the municipal separate storm sewer system of another NPDES MS4 CO-PERMITTEE , pursuant to the requirements of 40CFR 122.26(d)(2)(i)(D). 4. Identification of Discharges Both the CO-PERMITTEE whose stormwater system generates a pollutant discharge that impacts another CO-PERMITEE’S system and the impacted CO-PERMITTEE agree to cooperate by providing the staff and equipment necessary to identify the source of pollutant discharges emanating from the separate storm sewer system of one CO-PERMITTEE to the separate storm sewer system of another CO-PERMITTEE . 5. Notification When pollutant discharges to a shared sepa rate storm sewer system are discovered, the CO-PERMITTEES, or COUNTY , or any of the foregoing, as applicable, which are the source of the discharge(s) agree to report said discharges to the other affected pa rties sharing the particular MS4. The COUNTY shall assist, as needed, in any inve stigation and identification of a source of the discharge. If the COUNTY discovers a discharge in the separate storm sewer system of a CO-PERMITTEE or the COUNTY , the COUNTY will investigate the source of the disc harge and report its findings to the affected NPDES CO-PERMITTEES . When an investigation specifically identifies a NPDES CO-PERMITTEE as the source of a pollutant discharge, then that CO-PERMITTEE shall be responsible
6 for ceasing the discharge and remediating the effects of the discharge by restoring the affected MS4 in accordance with applicable standards. 6. Dispute Resolution When the parties sharing a MS4 cannot agree on the source of a discharge to their shared MS4, the State of Florida Department of Environmental Protection, Bureau of Watershed Management, shall be the final arbiter in determin ing jurisdiction and responsibility for cessation of discharge, remediation, and final resolution. 7. Termination Each party may terminate that particular pa rty's participation in this Agreement without cause by providing sixty (60) days prior written noti ce of termination to the other parties to this Agreement. CO-PERMITTEES shall be entitled to reimbursement of monies paid to the COUNTY only in the event of termination without cause by the COUNTY , and the CO-PERMITTEE shall then be entitled to such reimbursement only to the extent that services providing information useful to the NPDES MS4 Permit have not been rendered by the COUNTY . Upon termination by any party, the NPDES MS4 Operating Permit status of that party sh all be the sole responsibility of that party. 8. Entire Agreement; Prior Agreements Superseded; Amendment to Agreement This Agreement incorporates and includes all prior negotiations , correspondence, conversat ions, agreements, and understandings applicable to th e matters contained herein. The parties agree that there are no commitments, agreements, or understandings concerni ng the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement between the parties as to matters contained here in. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any pr ior representations or agreements, whether oral or written. It is further agreed that any oral repres entations or modifications concerning this Agreement shall be of no force or effect, and that this Agreement may be modified, altered or amended only by a written amendment duly executed by the parties he reto or their representatives. 9. Headings Captions and headings in this Agreement ar e for ease of reference only and do not constitute a part of this Agreement and shall not affect the meaning or interpretation of any provisions herein. 10. Notices and Approval Notices and approvals required or cont emplated by this Agreement shall be written and personally served or mailed, registered or certified United States mail, with return receipt requested, addressed to the parties listed in Section I of this Agreement. 11. Performance by Parties Except as otherwise provide d in this Agreement, in the event of any dispute arising over the provisions of this Agreement, the pa rties shall proceed with the timely performance of their obligations during the pendency of any legal or other similar procee dings to resolve such dispute. 12. Rights of Others Nothing in the Agreement express or implie d is intended to confer upon any person other than the parties hereto a ny rights or remedies under or by reason of this Agreement. 13. Time is of Essence It is mutually agreed that time is of th e essence in the performance of all terms and conditions to be met and performe d pursuant to this Agreement. 14. Governing Law This Agreement shall be governed by and c onstrued in accordance with the laws of the State of Florida and the United States. The COUNTY and the CO-PERMITTEE agree to submit to service of process and jurisdiction of the State of Florida for any controvers y or claim arising out of or relating to this Agreement or a breach of this Agreement. Venue for any court action between the parties for any such controversy ar ising from or related to this Agreement shall be in the Eleventh
7 Judicial Circuit in and for Miami-Dade County, Florid a, or in the United States District Court for the Southern District of Florida, in Miami-Dade County, Florida. 15. Severability The invalidity of one or more of the phrases, sentences, clauses, or Sections contained in this Agreement shall not affect the validity of the remaining portion of the Agreement, provided the material purposes of this Agreement can be determined and effectuated. 16. Waiver There shall be no waiver of any right related to this Agreem ent unless in writing signed by the party waiving such right. No delay or failure to exercise a right under this Agreement shall impair such right or shall be construed to be a waiver thereof. Any waiver shall be limited to the particular right so waived and shall not be deemed a wa iver of the same right at a later time, or of any other right under this Agreement. 17. Number of Outfalls The COUNTY will review and adjust on an annual basis the number of outfalls and MS4 drainage area of each CO-PERMITTEE during the month of March for each fiscal year the Agreement is in effect. Adjustments made, if any, w ill be in effect for the upcoming fiscal year, to recalculate each CO-PERMITTEE’S share of the total annual costs. CO-PERMITTEES may submit relevant outfall information to be included in the review during a two month period, from January1 st to February 28 th of the year immediately preceding the start of the fiscal year of the intended changes. An updated Attachment “A” shall be provided to CO-PERMITTEES annually by March 31 st for budgetary purposes. 18. Maximum Annual Costs Each CO-PERMITTEE’S maximum (not to exceed) financial commitment under this Agreement is shown in Attachment “A”. It should be noted that the CO-PERMITTEE’s cost share may change (+/-) based on any changes made to the Number of Outfalls or Drainage Area during the annual reviews. Such changes shall be re flected in an updated Attachment “A”. Actual annual expenditures invoiced by the COUNTY for water monitoring, sampling, BMP, and BMAP activities performed, will not exceed the CO-PERMITTEE’S total annual cost shown in Attachment “A” for that fiscal year.
8 Execution in Counterparts This Agreement shall be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and th e same agreement. IN WITNESS WHEREOF, _____________________________________________________, FLORIDA, by its Commission / Council attest, that this Agreemen t be executed in its name by the Manager or his designee, attested by the Cler k or Legal Representative. Co-Permittee selection of Activities detailed in Attachment “A”: Activity 1 (Water Monitoring) [ X ] Yes, we wish to participate [ ] No, but we reserve the right to request participation in subsequent fiscal years Activity 2 (Best Management Practices, BMP) [ X ] Yes, we wish to participate [ ] No, but we reserve the right to request participation in subsequent fiscal years Activity 3 (Basin Management Action Plan/Walk the WBID, BMAP/WTW) [ ] Yes, we wish to participate [ X ] No, but we reserve the right to request participation in subsequent fiscal years The Co-Permittee selections shown above remain in eff ect for the duration of the Agreement unless otherwise modified by the Co-Permittee. Each Co-Permittee may elect to modify their sele ctions shown above every fiscal year the Agreement remains in place. These modi fications must be formally requested between January 1 and February 28 in order to beco me effective for the following fiscal year and for the duration of the Agreement unless further modifications are made by executing a new “Execution in Counterparts” form _____________________________________________ Name of Manager (print) _____________________________________________ Signature Date _____________________________________________ Name of Clerk / Legal Representative (print) _____________________________________________ Signature Date
9 Execution in Counterparts This Agreement shall be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, Miami-Dade C ounty, Florida, has caused this Agr eement to be executed in its name by the County Mayor or his designee, attested by the Clerk of the Board of Count y Commissioners and has caused the seal of the Board of Count y Commissioners to be hereto attached. MIAMI-DADE COUNTY Stephen P. Clark Center 111 N.W. 1 Street Miami, FL 33128 ___________________________________________________ Mayor or Mayor’s Designee Date HARVEY RUVIN, CLERK Attest: ____________________________________________________ Deputy Clerk Date