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2012-136-1731 - Stormwater Billing Agreement  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 Fund 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  Short  Title: A  RESOLUTION  OF  THE  CITY  COUNCIL  OF  THE  CITY  OF  MIAMI  GARDENS, FLORIDA, AUTHORIZING  THE  MAYOR  AND  CITY  CLERK  TO  EXECUTE  AND  ATTEST  RESPECTIVELY, THAT  CERTAIN  REVISED  AGREEMENT  FOR  THE  BILLING  OF  STORMWATER  CHARGES  BETWEEN  MIAMI ‐DADE  COUNTY  AND  THE  CITY  OF  MIAMI  GARDENS  FLORIDA, A  COPY  OF  WHICH  IS  ATTACHED  HERETO  AS  EXHIBIT  “A”; PROV IDING  FOR  INSTRUCTIONS  TO  THE  CITY  CLERK; PROVIDING  FOR  THE  ADOPTION  OF  REPRESENTATIONS; PROVIDING  FOR  AN  EFFECTIVE  DATE.  Staff  Summary:  Background   March  14, 2012, City  Council  passed  Resolution  #2012 ‐48 ‐1643  in  which  the  City  executed  an  interlocal  agreement  with  Miami  Dade  County  to  collect  the  City’s  stormwater  utility  user  fees  and  maintain  records  (to  justify  charges, expenses, and  costs) for  a  fee  of  $0.81  per  bill.   ITEM K-17) CONSENT AGENDA RESOLUTION Stormwater Billing Agreement   1515  NW  167  Street, Building  5  Suite  200    Miami  Gardens, Florida  33169   With  the  collection  of  the  fees, the  County  will  also  deduct  two  Stormwater  Utility  Debt  Service  bonds  (1999  and  2004) for  stormwater  drainage  improvements. Per  year  cost  of  the  bonds  is  $672,555, which  expires  in  2029.   Current  Situation   After  the  passing  on  Resolution  #2012 ‐48 ‐1643  by  City  Council  in  March  14, 2012, Miami  Dade  County  requested  changes  to  the  interlocal  agreement.  These  changes  include  (underlined  below):   Section  2: In  the  event  the  CITY  revises  its  schedule  of  rates, the  CITY  shall  deliver  to  the  COUNTY, its  revisions  of  such  schedule  of  rates  by  furnishing  to  the  Department’s  Assistant  Director  of  Finance  a  certified  copy  of  the  ordinance  or  other  action  of  the  CITY  promulgating  said  revised  schedule  of  rates  a  minimum  of  thirty  (30) calendar  days  in  advance  of  the  effective  date  of  the  revised  rates.  Until  the  COUNTY  is  so  furnished  with  a  revised  schedule, the  COUNTY  shall  act  upon  the  prior  delivered  schedule.  The  stormwater  utility  service  charge  shall  be  prorated  in  accordance  with  the  revised  schedule  of  rates. No  security  deposits  shall  be  collected  by  the  COUNTY  nor  shall  delinquent  penalty  charges  be  imposed  by  the  COUNTY  on  the  stormwater  utility  charge.    Section  4: The  COUNTY  agrees  to  observe  the  same  diligence, policy  and  procedure  in  the  billing  and  collection  of  stormwater  utility  service  accounts  as  is  used  by  the  COUNTY  in  billing  and  collecting  its  water  and/or  sewer  service  accounts, except  that  the  COUNTY  shall  not  terminate  water  and/or  sewer  service  for  non ‐payment  of  stormwater  utility  service  charges, except  when  account  balances  exceed  an  amount  to  be  determined  by  the  Department.  Additionally, the  COUNTY  will  not  institute  or  maintain  suits  at  law  for  collection  of  stormwater  utility  service  charges. The  COUNTY  may  provide  water  and/or  sewer  service  to  customers  irrespective  of  said  customer’s  failure  to  pay  the  applicable  stormwater  utility  charge.  The  COUNTY  will  not  be  responsible  for  billing  of  accounts  that  are  inactive.  Upon  the  CITY’s  request, the  COUNTY  will  provide  the  CITY  with  a  report  of  inactive  accounts  to  allow  the  CITY  to  bill  the  customer  directly  when  the  COUNTY  is  not  collecting  the  fee.  The  COUNTY  will  not  file  any  liens  on  property  for  the  collection  of  the  stormwater  utility  charges.  Legal  actions  for  non ‐payment  of  stormwater  utility  charges  shall  be  the  sole  responsibility  of  the  CITY.  City  staff  has  reviewed  the  revised  language.   Proposed  Action: It  is  recommended  that  the  City  Council  approve  the  proposed  resolution  supporting  the  addition  of  new  language  in  Sections  #2  and  #4  of  the  existing  interlocal  agreement  with  Miami  Dade  County  for  the  collection  of  stormwater  utility  fees.  Attachments:  Attachment  #1: 2012  Resolution# 2012 ‐48 ‐1643  Attachment  #2: County  Revised  Billing  Agreement    Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 1 AGREEMENT FOR THE BILLING OF STORMWATER CHARGES BETWEEN MIAMI -DADE COUNTY AND CITY OF MIAMI GARDENS THIS AGREEMENT, entered into this ____ day of ________, 20 12 , by and between the CITY OF MIAMI GARDENS, FLORIDA, a municipal corporation of the Sta te of Florida (the “CITY”), and MIAMI -DADE COUNTY, a political subdivision of the State of Florida (the "COUNTY"). W I T N E S S E T H: WHEREAS, the COUNTY, through its Miami -Dade Water and Sewer Department (the "Department"), operates the water and sew er utility systems within the CITY; and WHEREAS, effective March 1, 2007, the CITY has been exclusively responsible for operat ing and maintain ing the stormwater utility system within the CITY boundaries ; and WHEREAS, on March 27, 200 7 , the COUNTY and th e CITY entered into an agreement providing for the billing of stormwater charges by the COUNTY on the CITY ’s behalf and has been administering, billing and collecting a stormwater utility service charge simultaneously with the issuance of the COUNTY’s bill s for water and /or sewer service, and WHEREAS, the CITY desires the COUNTY to continue to administer, bill and collect the stormwater utility charge on behalf of the CITY ; and WHEREAS, the COUNTY has agreed to continue to administer, bill and collect t he stormwater utility service charges on behalf of the CITY ; and WHEREAS, the COUNTY needs to retain, from the stormwater utility service charges it collects for the CITY, on a monthly basis, the CITY’s pro -rata share of debt service on the Stormwater Ut ility Revenue Bonds, Series 1999 and Series 2004 (the “Stormwater Bonds”) outstanding on the Exemption Date of the City from the Miami -Dade County Stormwater Utility; NOW, THEREFORE, in consideration of mutual advantages, it is agreed: Section 1. The CI TY , jointly with the COUNTY, will designate and cause to be identified from time to time the water and /or sewer service accounts of the Department which thereafter, under the rules and regulations of the CITY , shall be billed for stormwater utility service charges. The CITY shall designate the rate classifications applicable thereto in writing in a format acceptable to the COUNTY. The COUNTY shall act thereon until such designations and classifications are changed in writing by the CITY . The CITY underst ands and accepts that the COUNTY shall consider the person or persons whose names appear on the COUNTY's water and /or sewer service account as the person or persons responsible for the stormwater utility service charges at the location involved. Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 2 Section 2 . In the event the CITY revises its schedule of rates, the CITY shall deliver to the COUNTY, its revisions of such schedule of rates by furnishing to the Department’s Assistant Director of Finance a certified copy of the ordinance or other action of the CI TY promulgating said revised schedule of rates a minimum of thirty (30) calendar days in advance of the effective date of the revised rates . Until the COUNTY is so furnished with a revised schedule, the COUNTY shall act upon the prior delivered schedule. The stormwater utility service charge shall be prorated in accordance with the revised schedule of rates. No security deposits shall be collected by the COUNTY nor shall delinquent penalty charges be imposed by the COUNTY on the stormwater utility charge. Section 3. The COUNTY agrees, through its regular and periodic billing procedures, to cause to be billed and collected from each water and sewer customer under said accounts, as an added and designated separate item on the bill, the stormwater utility service charge, according to the schedule of rates established by the CITY for such customer. During the term of this Agreement, this shall be the exclusive method for billing stormwater utility service charges by the County; no separate bills shall be is sued, except for those bills that may be generated by the CITY . The CITY authorizes and empowers the COUNTY to render such billing for the CITY 's account , and on the payment thereof , to give receipt and acquittance to the CITY , either by endorsement of pa yment upon such billings or by separate receipt. Upon the initial billing by the COUNTY to each user of stormwater utility service and , at any time during the term of this A greement, as deemed necessary by the COUNTY or the CITY , the CITY shall , at its so le cost and expense , and independent of this Agreement, advise such stormwater utility user of the method and arrangement between the CITY and the COUNTY for the billing and collection of said charge s by the COUNTY for and on behalf of the CITY as the CITY 's agent. Furthermore, the CITY shall notify its stormwater utility users of future rate increases. The COUNTY shall not be responsible for notifying new owners, occupants or tenants that there is a stormwater utility service charge. Section 4. The COUN TY agrees to observe the same diligence, policy and procedure in the billing and collection of stormwater utility service accounts as is used by the COUNTY in billing and collecting its water and/or sewer service accounts, except that the COUNTY shall not terminate water and/or sewer service for non -payment of stormwater utility service charges, except when account balances exceed an amount to be determined by the Department . Additionally, the COUNTY will not institute or maintain suits at law for collecti on of stormwater utility service charges. The COUNTY may provide water and /or sewer service to customers irrespective of said customer’s failure to pay the applicable stormwater utility charge. The COUNTY will not be responsible for billing of accounts th at are inactive. Upon the CITY’s request, the COUNTY will provide the CITY with a report of inactive accounts to allow the CITY to bill the customer directly when the COUNTY is not collecting the fee. The COUNTY will not file any liens on property for th e collection of the stormwater utility charges. Legal actions for non -payment of stormwater utility charges shall be the sole responsibility of the CITY . Section 5. The COUNTY will keep correct and proper books of accounts, showing monthly gross billing s of stormwater utility service charges, and shall provide to the CITY a monthly statement in writing, showing the net amount owed the CITY by the COUNTY for the month covered by such statement. The COUNTY shall provide this statement and the remittance d ue the CITY within sixty (60) days of the end of each monthly period. Based on such statement, the COUNTY shall make payment to the CITY of the amount due, less the COUNTY's compensation for the billing and collection of said charges and less any other pa yments or deductions as hereinafter specifically pr ovided in Sections 6, 9 and 10 of this Agreement. Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 3 The CITY agrees that the COUNTY shall remit monthly payments based on the collection of stormwater utility service charges, when the COUNTY’s billings sy stem is capable of this method of remittance on all accounts . Section 6 . Adjustments for uncollected stormwater billings shall be made on a regular basis, at least annually or when write -offs occur , as a deduction provided in Section 5. Section 7 . Upon written request from the CITY , the COUNTY shall make available for inspection or audit by the CITY and its representatives at any reasonable time all of its records pertaining to the COUNTY's actions under this Agreement as agent for the CITY an d shall also furnish to the CITY such information concerning the administration of this Agreement as the CITY may reasonably request, including information as to delinquent stormwater utility charges and accounts not currently being billed. Should the CITY , in any audit of the COUNTY’s records, find a discrepancy between the amount of funds remitted to the CITY and the actual billing and collection by the COUNTY, the COUNTY shall within 30 days of receipt of written notification from the CITY , remit to the CITY the sums owed upon the COUNTY’s agreement with the audit findings . Section 8 . Both the CITY and the COUNTY recognize that in the billing and collection of stormwater utility service charges involving thousands of custome rs, numerous situation s arise that require discretion. The CITY agrees that the COUNTY may use its best judgment in such instances. The COUNTY's method or manner of handling such situations shall not be considered negligence under , or independent of , the terms and conditions o f this Agreement n or shall it constitu t e a breach of this Agreement, and the COUNTY shall not be liable or responsible to the CITY for any loss in stormwater utility service charge revenues by reason of the COUNTY's discretionary handling of such situation s. Specifically, the COUNTY shall have the right to remove or adjust the stormwater utility service charge from a customer’s bill if the customer provides proof acceptable to the COUNTY that he or she was not the owner, occupant or tenant of the property on the date that the stormwater utility service charge was applied. However, the COUNTY shall advise the CITY of all adjustments to the CITY accounts as part of the monthly statements provided pursuant to Section 5. Except as otherwise specified in this S ection , any adjustments to accounts assessed a stormwater utility service charge shall be initiated solely by the CITY and provided to the COUNTY in writing. Section 9 . The CITY agrees to pay to the COUNTY , and the COUNTY shall receive from the CITY , by means of deduction from payments for monthly billings, compensation determined as follows: A. For the period from the effective date of this A greement, until the A greement is modified pursuant to Section 11 herein after, a charge in the amount of eighty -one cents ($0.8 1 ) per bill for all accounts to be charged the CITY ’s stormwater utility service charge; and B. For all costs and expenses incurred and paid by the COUNTY during the preceding month in defending legal actions brought against the COUNTY by any per son, firm or corporation, excluding the CITY , involving billing or collection of stormwater utility service charges on behalf of the CITY , or involving the COUNTY's administration of the terms and conditions of this Agreement. The COUNTY shall notify the CITY in writing of any legal claims filed against the COUNTY pertaining to the COUNTY’s billing and collection of the CITY ’s stormwater fees within thirty (30) w orking days of receipt of any claim. The Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 4 CITY shall have the option to defend the COUNTY on an y such claims and settle or compromise the same , unless such a claim involves employee dishonesty or theft , in which case, the COUNTY will defend said claim . Section 10 . The CITY agrees to pay to the COUNTY , and the COUNTY shall receive from the CITY , by means of deduction from payments for monthly billings of stormwater utility service charges collected by the COUNTY for the CITY , the CITY ’s pro -rata share of debt service on : (i) the Stormwater Bonds until they are paid in full or provision made for thei r payment pursuant to Article IX of Ordinance No. 98 -187, enacted by the Board of County Commissions on December 15, 1998 in accordance with the debt service schedule set forth in Exhibit “A ” to this Agreement , and (ii) any obligations associated with cost -sharing Stormwater Management Projects that may include, but not be limited to, canal dredging, canal maintenance and drainage projects that may be agreed to subsequent to the date of this Agreement for which payment will be based on a mutually agreed fra ction. For any payments pursuant to (ii) above , the COUNTY, through its Department of Permitting, Environment and Regulatory Affairs (PERA) with a copy to be sent to the Miami -Dade Water and Sewer D epartment, will inform the CITY thirty (30) calendar days prior to the beginning of each Fiscal Year, of the amount of s tormwater utility service charges the County will retain each month in addition to those retained pursuant to Exhibit “A ” to this Agreement . Upon written agreement by both the CITY and the COU NTY , this Agreement may be modified to include any additional CITY share of debt service due to future CITY annexations. Section 1 1 . The COUNTY reserves the right to review and revise the c harges provided for in Section 9 (A ) hereinabove , and the CITY ag rees to be bound thereby, provided the COUNTY provides ninety (90) days notice to the CITY of said proposed revised charges . Section 1 2 . All telephone calls and correspondence from customers regarding the stormwater utility shall be the responsibility o f the CITY . The COUNTY shall cause the telephone number for the CITY , as provided by the CITY , to be printed on the COUNTY's regular bill stock. Se ction 13 . The CITY agrees that the COUNTY shall not be held liable for a ny damage, delay or other loss tha t the CITY may experience as a result of the COUNTY’s practices in administering this Agreement, unless such loss arises solely as a result of negligence by the COUNTY, its employees or agents. Section 1 4 . It is understood and agreed between the CITY and the COUNTY that the COUNTY's obligation is limited to billing and collection of stormwater utility service charges as specifically provided for in this Agreement. Section 15 . The CITY shall not allow or permit construction or installation of any con nectio ns of stormwater mains that allow stormwater to enter the COUNTY's sanitary sewer system. The CITY agrees to use its best efforts to detect and lawfully disconnect all stormwater connections to the COUNTY's sanitary sewer system within the CITY 's jurisdic tion and submit , within ninety (90) days of the execution of this Agreement , a timetable for the elimination of such stormwater connections , which is reasonably acceptable to the COUNTY. Section 16 . This Agreement shall be binding upon the respective succ essors and assigns of both the CITY and the COUNTY. Section 17 . All references to the CITY under this Agreement that require direction to the COUNTY shall mean the CITY Manager or his designee. Whenever written notice to the CITY is required, it shall be sent by Certified Mail, Return Receipt Requested, to : Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 5 CITY of Miami Gardens 1515 N.W. 167th Street Miami Gardens, Florida, 200 (Attention: City Manager) Whenever written notice to the COUNTY is required , it shall be sent by Certified M ail, Return Rec eipt Requested to : Miami -Dade County Miami -Dade Water and Sewer Department 3071 S. W. 38 th Avenue Miami, Florida 33146 (Attent ion: Assistant Director -Finance) Section 18 . This Agreement shall remain in full force and effect for a period of ten (1 0) years after its date of execution. This Agreement may be extended for an additional ten (10) year period by written request from the City Manager to the Department’s Director and mutual agreement by the Department, without which it shall terminate. Not withstanding the above provisions, this Agreement shall terminate and be cancelled without further writings between the CITY and the COUNTY upon either party providing six (6) months notice in writing to the other party so advising the other party. Notwit hstanding the provisions of this paragraph, should the COUNTY fail to timely bill the CITY ’S customers in accordance with the agreed -upon billing cycles and rates or fail to remit payment to the CITY consistent with the tim eframes specified in Section 5 , t he CITY may terminate this Agreement on thirty (30) days written notice to the COUNTY. Notwithstanding the above, this Agreement may not be terminated at any time without a COUNTY -approved alternate method of payment by the CITY to the COUNTY of the CITY ’s outstanding debt service obligation for the Stormwater Bonds. (The rest of this page is intentionally left blank) Stormwater Billin g Agreement City of Miami Gardens 04/25/2012 09/12/2012 6 IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. MIAMI -DADE COUNTY ATTEST: BY :________________________ BY:__________________________ Clerk County Mayor ATTEST: CITY OF MIAMI GARDENS BY:__________________________ BY: ________________________ CITY Clerk Mayor Approved as to form and legal Approved as to form and legal sufficiency: sufficiency: _________________________ _____________________________ Assistant County Attorney Attorney for C ity of Miami Gardens