Agreement with Surfside to Provide Sewage Conveyance Services Ro a?° Y.?,
AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND
THE TOWN OF SURFSIDE, FLORIDA,
TO PROVIDE SEWAGE CONVEYANCE SERVICES
THIS AGREEMENT is made and entered into this day of �►\
2015 (Effective Date), y �
( ) by and between the City of Miami Beach, Florida ("City"), and
the Town of Surfside ("Surfside").
WHEREAS, the City operates a sewage conveyance system (the City System)
for the use and benefits of its inhabitants, and has also historically provided sewage
conveyance for disposal services to the neighboring Town of Surfside; most recently,
pursuant to an agreement entered into between the City and Surfside, dated August 2,
1972, and approved by the City pursuant to Resolution No. 826 (the "1972 Agreement");
and
WHEREAS, on December 5, 1979, pursuant to Resolution No. 79-16114 (and in
anticipation of the connection of the City System to the Virginia Key Treatment facility),
the City exercised its right to terminate the 1972 Agreement; notwithstanding such
termination, however, the City and Surfside's intent was not to discontinue the City's
provision of the services to Surfside, but rather to continue to provide them on a month
to month basis until new terms including, without limitation, new rates under an
appropriate rate setting procedure (after the City's costs could be determined for
operation under the new system) could be established; and
WHEREAS, the City and Surfside now wish to enter into a new agreement
("Agreement") for sewage conveyance for disposal services (hereinafter, the
"Services"); particularly insofar as memorializing the new rate of compensation to be
paid by Surfside to the City is concerned.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the City and Surfside hereby agree as follows:
1. The City shall continue to provide the Services to Surfside, to the extent capacity
is available, by means of an existing transmission main from Surfside to the City-
owned meters located in the City owned parking lot at 72nd Street, located in the
City of Miami Beach. The Interlocal Contract Between Miami-Dade County and
City of Miami Beach, Florida, dated December 17, 2014, -and approved and
authorized by the City pursuant to Resolution No. 2014-28655, acknowledges
that the sanitary sewage received by the County from the City flows from
Surfside, in addition to the Village of Bal Harbour and Town of Bay Harbor
Islands. Future flows (i.e. future capacity) from Surfside under this Agreement
shall be determined in accordance with, and subject to, the Interlocal Agreement.
2. Notwithstanding the City's agreement to provide the Services, or any other term
or condition of this Agreement, Surfside acknowledges that any obligation that
the City has to render such Services to Surfside pursuant to this Agreement shall
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be limited to, subject and subordinate to, and conditioned upon any agreements,
terms, covenants, conditions, and obligations between the City and Miami-Dade
County, Florida (the County), whether existing as of the Effective Date or as may
exist in the future, pertaining to the County's responsibility to provide sewage
disposal service to the City's existing sewer service area (which service area
includes and takes into account the flow from Surfside), by means of the existing
transmission main from the City to the County's Central District Wastewater
Treatment Plant located on Virginia Key (where the combined flow is metered).
Surfside further recognizes and acknowledges that the City's standards for the
Services provided to Surfside pursuant to this Agreement are also limited to,
subject and subordinate to, and conditioned upon any modification(s) as a result
of (i) changes to the City's agreement with the County to provide sewage
disposal services to the City; and/or (ii) changes to existing or future federal,
State, County, and local laws, rules, and regulations.
3. Surfside agrees, and hereby warrants to the City, that it will abide by and be
bound by all present and future federal, State, County, and City laws, standards,
rules, regulations, permit conditions and other requirements related to sewer
service. Surfside acknowledges that the responsibility of the City to provide the
Services under this Agreement shall be limited to the flow from Surfside's
existing sewer service area(s) (i.e. the flow existing as of the Effective Date of
this Agreement).
4. Surfside further agrees and hereby warrants to the City that it shall operate and
maintain its sewage collection system (hereinafter referred to as the Surfside
System, and which system includes, without limitation, any and all transmission
pipe lines, main pipe lines, force mains pumps, pumping stations, meters, and
any and all other facilities and equipment appurtenant thereto), and any system
extensions thereof, in accordance with the requirements of all applicable federal,
State, County, and City laws, rules, regulations, and permit conditions. The
operation and maintenance of the Surfside System shall be the sole
responsibility and cost of Surfside. The City reserves the right to inspect the
Surfside System, as deemed necessary by the City, in its sole discretion and
judgment, but at no cost to Surfside, to verify that the Surfside System is being
properly maintained and operated in accordance with the above standards and
industry standards as outlined in Wastewater Collection Systems Management,
WEE Manual of Practice No. FD-7, 2009; and Recommended Standards for
Wastewater Facilities, Health Education Services (a Division of Health Research,
Inc.), 2004. The City shall request permission from Surfside to inspect the
Surfside System, which permission shall not be unreasonably withheld,
conditioned, or delayed. The City shall request permission from Surfside three
(3) business days prior to inspection of the Surfside System and shall allow
Surfside's representation at City's inspections. Said inspections shall be made at
reasonable times and in such manner so as to least disturb Surfside's normal
operations.
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5. Surfside shall not allow or permit construction or installation of any connections
of stormwater mains which allow stormwater to enter the Surfside System. Upon
notice or discovery of such interconnections, Surfside shall, at its sole cost and
expense, immediately effectuate the lawful disconnection of such
interconnections to the City's satisfaction and, at a minimum, in accordance with
applicable federal, State, County, and City laws, rules, regulations, and permit
conditions. . Surfside hereby agrees to pursue and maintain best efforts, on a
regular timely basis, to reduce infiltration and inflow to comply with all local,
State, and/or federal ordinances, laws and regulations regarding infiltration and
inflow connection or reduction as now in effect or as may be enacted in the
future. Surfside agrees that in the event any undue infiltration develops in the
Surfside System, it shall make such repairs as may be required by the City in
order to remedy such condition.
6. The quantity (i.e. the flow) of sewage handled by the City System for Surfside
hereunder shall be measured prior to the entry point to the City System by City
owned meters, or any subsequent replacement meters installed by the City, in its
sole and reasonable discretion (hereinafter referred to individually as a "Meter" or
collectively as the "Meters"). The Meters have been installed in structures
located within the Town of Surfside right of way at 501 93rd Street and 701 89th
Street. The City and Surfside shall have the right and opportunity to inspect the
Meters. The City shall notify Surfside three (3) business days prior to inspection
of the. Meters and shall allow Surfside to attend the City's inspections. Said
inspections shall be made at reasonable times and in such manner so as to least
disturb Surfside's normal operations.
7. The City shall own, operate and maintain the Meters, at its sole cost and
expense. The City shall also, at its sole expense, test the accuracy of each
- Meter, at a minimum, once every three (3) months, or at such other time intervals
as it may deem appropriate. The City shall notify Surfside three (3) business
days prior to testing of the Meters and shall allow Surfside's representation at
City's testing. Said tests shall be made at reasonable times and in such manner
so as to least disturb Surfside's normal operations. The City shall provide the
results of the tests to Surfside no later than thirty (30) days after each meter is
tested.
8. The Meters- shall indicate flow with an error not to exceed plus or minus five
percent (5%) of full scale reading (true accuracy). If found to be in error — i.e.
anything exceeding five percent (5%) of true accuracy - the Meters shall be re-
calibrated by the City. If such error of more than five percent (5%) is discovered,
bills for the three (3) periods following the prior Meter accuracy test shall be
adjusted to reflect the quantity of over-read or under-read flow. In calculating
such billing adjustment, it will be assumed by the parties that the inaccuracy
existed for the entire time interval between accuracy tests. The billing •
adjustment(s) shall be made at the same rate in effect during the time interval.
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9. Surfside may request, and the City agrees to perform, additional Meter accuracy
tests, upon reasonable notice to City and at a reasonable time acceptable to both
parties. Said additional testing shall be completed at reasonable times. If the
Meter(s) is (are) found to be in error exceeding five percent (5%) true accuracy, it
shall be recalibrated by the City as described in the preceding Paragraph 8, and
the entire cost for such testing and recalibration shall be paid for by the City. If
the Meter(s) is (are) found performing within five percent (5%) true accuracy, the
Meter accuracy test shall be paid by Surfside no later than thirty (30) days from
receipt of an invoice from the City.
10. In the event of complete or partial failure of any Meter(s) to register, both parties
shall mutually agree to establish consumption based on historic monthly average
flows for the most recent wet or dry period as defined by the latest Miami-Dade
County rate schedule in effect during the Term of this Agreement. The most
recent actual readings for a period of three (3) consecutive months of a wet or
dry period will be used to represent that corresponding period until the Meter(s) is
(are) repaired. The City shall use reasonable commercial efforts to repair a failed
Meter within sixty (60) days of a determination by the City that the Meter has
completely or partially failed.
11. The City will be under no obligation at any time to perform any re-pumping of
sewage delivered to the City System by Surfside.
12. Surfside agrees to pay to the City an amount, as determined by the City, to cover
all costs associated with the sewage flow from the Surfside System, per 1,000
gallons of sewage passing through the City's System; which sum shall be
payable monthly. The cost of service shall include direct costs of operation,
maintenance, depreciation, debt service, and a one and a half percent (1.5%)
administrative fee. The actual amount shall be calculated and presented in a
written report to the City of Miami Beach Commission during its budget approval
process, and approved by City Resolution; provided, however, that the City shall
make reasonable commercial efforts to transmit the aforementioned written
report to Surfside at least fourteen (14) calendar days prior to the date of the
public meeting at which the written report is presented to the City Commission.
The City shall also make reasonable commercial efforts to transmit the proposed
Resolution to Surfside at least fourteen (14) calendar days prior to the date of the
City Commission meeting at which the proposed Resolution is presented to the
City Commission. The adopted Resolution shall be transmitted to Surfside as
written notice of change of cost of service with an effective date.
13. Billing for services provided in accordance with this Agreement shall be rendered
monthly. Invoices will be mailed by the tenth (10th) day of the month following
the month for which service has been provided, based on readings of the Meters
taken by the City. Amounts billed on such invoices are due when rendered. In
the event Surfside disputes a bill, Surfside shall provide the City with written
notice of the reasons for non-payment within thirty (30) days of receipt of the bill,
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and shall escrow such portion of the bill that is disputed in an interest-bearing
account. The parties shall promptly meet and use reasonable good faith efforts
to resolve the dispute within forty-five (45) days of the City's receipt of Surfside's
notice. Except for any portion of a bill disputed, payment not received by the City
on or before twenty-five (25) days after the postmark date of the bill shall be
considered past due. All past due invoices shall be subject to a late charge, as
established by the City (such charge to reimburse the City for costs in processing
and otherwise administering late payments). In addition, per annum interest shall
accrue on the past due charges including the late charges at the maximum legal
rate provided by Florida law for contracts in which no interest rate is specified, for
each day, including Saturdays, Sundays and holidays, from the past due date
until the date of receipt by the City. For purposes of this paragraph, date of
receipt shall be the date of actual receipt by the City if hand delivered or mailed,
or date of transfer to the City's bank, if electronic funds transfer is used.
14. Neither party shall be liable to the other for any failure to perform under this
Agreement to the extent such performance is prevented by an event of force
majeure, including, but not limited to, war, riots, natural catastrophe, or any other
event beyond the control of the non-performing party and which could not have
been avoided or overcome by the exercise of due diligence; provided that the
party claiming the excused performance has (i) promptly notified the other party
of the occurrence and its estimated duration; (ii) promptly remedied or mitigated
the effect of the occurrence to the extent possible; and (iii) resumed performance
as soon as possible.
15. To the extent provided by Florida law, both parties mutually agree to indemnify,
defend, and hold harmless each other and their respective officers, agents,
contractors, and employees, from any claim, loss, damage, cost, charge, or
expense arising out of any acts, action, error, neglect, or omission by such
officers, agents, contractors, or employees during the performance of the
Agreement, except that neither party, nor its respective officers, agents,
contractors, or employees, will be liable under this paragraph for damages
arising out of injury or damage to persons or property directly caused by or
resulting from the negligence of the other party, or any of its respective officers,
agents, contractors, or employees, during the performance of this Agreement.
16. This -Agreement shall be governed -by the laws of the State of Florida. Any
provision hereof found to be unlawful or unenforceable shall be severable and
shall not affect the validity of the remaining portions hereof. Any and all suits
brought by either party shall be instituted and maintained in any court of
competent jurisdiction in Miami-Dade County, Florida. In all such suits, the
prevailing party shall be entitled to receive reasonable costs and reasonable
attorney's fees. City and Surfside waive any rights either party may have to a
trial by jury in any civil litigation related to, or arising out of, this Agreement.
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17. All notices required pursuant to the terms hereof may be sent by first class
United States Mail, facsimile transmission, hand delivery, or express mail and
shall be deemed to have been received by the end of five business days from the
proper sending thereof unless proof of prior actual receipt is provided. Surfside
shall have a continuing obligation to notify the City of the appropriate persons for
notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing, notices shall be sent to the following addresses:
• If to the City:
Eric Carpenter, P.E., Director of Public Works
1700 Convention Center Drive, 4th Floor
Miami Beach, FL 33139
• if to Surfside:
Town Manager
9293 Harding Avenue
Surfside, Florida 33154
18. The term of this Agreement (Term) shall be for an initial term of five (5) years,
commencing upon execution by the parties hereto, as referenced by the Effective
Date on page 1 hereof. This Agreement shall be automatically renewed for
subsequent, consecutive terms of five (5) years each, subject to termination by
either party, upon one hundred eighty (180) days written notice to the other.
Notwithstanding the preceding paragraph, should Surfside elect at any time
during the Term of this Agreement to transmit all or a portion of its current
sewage flow(as of the Effective Date), Surfside shall provide the City with written
notice of such intent ninety (90) days prior to October 1St, so that the City may
have time to adequately evaluate and plan its future capacity demands, in order
to transmit same to the County as required under the Interlocal Agreement.
19. The City agrees that if, after the Effective Date of this Agreement, it enters into an
agreement for the same or substantially similar scope of services with another
local government in Florida, which contains terms or conditions pertaining only to
fees, charges or costs, that are more favorable than the terms in this Agreement,
Surfside may provide the City with written notice explaining how the new
agreement is for the same or substantially similar services and how the new
agreement contains terms or conditions pertaining only to fees, charges, or
costs, that are more favorable than the terms in the Agreement, and requesting
to negotiate an amendment to the Agreement (a "New Agreement Notice"). The
parties shall act in good faith to negotiate an amendment to the Agreement that
addresses, in a manner that is fair and equitable to both parties, the matters
raised by Surfside in the New Agreement Notice. If the parties fail to reach
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agreement upon an amendment within ninety (90) days of the New Agreement
Notice, then Surfside may terminate this Agreement without penalty or early
termination fee, subject to the terms and conditions herein, by providing one
hundred and eighty (180) days advance written notice to the City. Upon a
termination pursuant to this Section, the City shall have no further liability and/or
obligation to Surfside.
20. This Agreement constitutes the complete and final expression of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, or negotiations with respect thereto. Changes and additions to
this Agreement shall be directed by a written amendment signed by the duly
authorized representatives of the City and Surfside. No alteration, change, or
modification of the terms of this Agreement shall be Valid unless amended in
writing, signed by both Parties.
WHEREOF, this Agreement has been duly executed by the parties hereto as of
the day and year first above written.
ATTEST: CITY OF MIAMI BEAD /' *RIM
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ATTEST: 11, TOWN OF SURFSIDE
Signature: Signature:
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APPROVED AS TO
FORM &LANGUAGE
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agreement upon an amendmentwithin ninety (90) days of the New Agreement
_ Notice, then Surfside may terminate this Agreement without penalty or early
termination fee, subject to the:-terms and conditions herein, by;providing one
hundred and eighty (180) days advance written notice to the City Upon a
termination pursuant to this Section, the City shall have no further liability_.and/or
obligation to Surfside.
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20.( This Agreement constitutes the complete and final expression of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, or negotiations with respect thereto. Changes and additions to
this Agreement shall be directed- by a written amendment signed by the duly
authorized representatives of the City and Surfside. No alteration, change, or
modification of the terms of this Agreement shall be valid unless amended in
writing, signed by both Parties.:.
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WHEREOF, this Agreement has been duly executed by the parties hereto as of
U the day and year first above written
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ATTEST: CITY OF MIAMI BEACH, FLORIDA
- Signature: Signature: •
Name: Name.-
Title: -Title:
Date:
ATTEST: 1 TOWN OF SURFSIDE '
Signature: �1a� Signature:
Name: �.r a -,
Name: 1)ai:%e t
Title: 1GWn Cie 2- Title:' Ca,
Date: .5k IS1 2Ot3
- 'APPROVED AS TO
:FORM & LANGUAGE
7 &.FOR EXECUTION
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City At omey Date