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425-2002 RDA Reso RESOLUTION NO. 425-2002 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY ("RDA") APPROVING TWO SETTLEMENT AGREEMENTS CONCERNING THE MIAMI BEACH MARINA SEWAGE SPILL: (1) THE FIRST AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), THE CITY OF MIAMI BEACH ("CITY"), THE RDA, AND PRIVATE PARTIES INVOLVED IN THE INCIDENT; AND (2) THE SECOND AGREEMENT BETWEEN THE CITY, THE RDA, AND THE PRIVATE PARTIES, TO RECOVER THE CITY'S COSTS ARISING FROM THIS INCIDENT, AND AUTHORIZING THE CHAIRMAN, SECRETARY AND ANY OTHER NECESSARY RDA PERSONNEL TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF THIS RESOLUTION. WHEREAS, following the sewage spill at the Miami Beach Marina on or about June 20, 2000, the City of Miami Beach and other governmental regulatory agencies, including Miami-Dade County Department of Environmental Resources Management ("DERM") and Florida Department of Environmental Protection ("DEP"), have undertaken investigations to determine the causes of the spill, to recover costs these agencies and/or their governments incurred in connection with the spill, and to direct corrective action to prevent the incident from recurring; and WHEREAS, on June 27, 2001, the City Attomey presented to the Commission a settlement agreement with Miami-Dade County resulting from DERM's findings and actions with respect to the incident, which the Commission approved by Resolution 2001- 24497; and WHEREAS, the attached settlement agreement in the form of the Consent Order with DEP ("the DEP Agreement") reflects DEP's review and assessment of the spill and the settlement of all possible issues with respect to the claims of DEP, and the State of Florida, through the Board of Trustees of the Internal Improvement Trust Fund; and WHEREAS, while the City is a party to this DEP Agreement as lessee of the submerged bay bottom of the Miami Beach Marina, no obligations of the City arise under this agreement other than in connection with future dredging and filling activities at the Miami Beach Marina, solely to the extent that the City acknowledges that such future activities are subject to the review and approval of DEP; and WHEREAS, no liability for payment, or for any action related to the spill, is admitted or imposed, express or implied, on behalf of the City, in this DEP Agreement; and '. WHEREAS, the second agreement between the City, the RDA, and the private parties ("the City Agreement") requires those parties identified as having some responsibility in connection with the incident, either by their action, or by prior agreement to indemnify the City, are required to reimburse the City for expenses arising from the incident, which have been calculated at $260,000; and WHEREAS, based on the foregoing, the Administration and General Counsel to the RDA recommend that the Chairman and Members of the RDA adopt this resolution approving the DEP Agreement and the City Agreement, authorizing their execution. NOW, THEREFORE, BE IT RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, FLORIDA, that the Settlement Agreement with the Florida Department of Environmental Protection, and the City Agreement with the private parties, for the Miami Beach Marina sewage spill, attached to this Resolution are hereby approved and the Chairman, Secretary and any other necessary RDA personnel are hereby authorized to execute the Agreements and all other documents as may be necessary to carry out the intent of this Resolution. PASSED and ADOPTED this 10th day 0 ,2002. ATTEST: ~r fCVt-~ SECRETARY APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION CHAIRMAN /J1t~ GENERAL COUNSEL TO THE RDA 7-3-0 )..- Date T:\AGENDA\2002\JUL 1002\REGULAR\Sewage Break Settlement DEPCItyAgr.ReI.doc 2 CITY OF MIAMf'SEACH REDEVELOPMENT AGENCY ITEM SUMMARY m Condensed Title: A Resolution of the Chairman and Members of the Miami Beach Redevelopment Agency ("RDA") approving two Settlement Agreements concerning the Miami Beach Marina Sewage Spill: (1) the first Agreement between the Florida Department of Environmental Protection ("DEP"), the City of Miami Beach ("City"), the RDA, and Private Parties involved in the incident; and (2) the second Agreement between the City, the RDA, and the Private Parties, to recover the City's costs arising from this incident, and authorizing the Chairman, Secretary and any other necessary City personnel to execute the Settlement Agreement and all other documents as may be necessary to carry out the intent of this Resolution. Issue: Shall the Mayor and City Commission approve two Settlement Agreements concerning the Miami Beach Marina Sewage Spill with DEP and Private Parties, respectively? Item Summary/Recommendation: As a result of the rupture of the 54 inch sewage force main on June 20, 2000 the City entered into a Settlement Agreement with DERM on June 27, 2001 which contemplated two Settlement Agreements with 1) DEP and 2) Private Parties. The DEP Agreement requires Miami Beach Marina Associates, Ltd., to pay $29,200 in settlement ofthe incident, which funds include $7,000 for costs and expenses incurred by DEP, and the remaining funds allocated to the State's Ecosystem Management and Restoration Trust Fund. The agreement also requires the contractor, Marin and Marin to perform a mitigation project in the South Beach area, specifically the placement of 1 ,200 tons of rip rap boulders within the limits of DERM's South Beach Artificial Reef Project, consistent with Corps of Engineers and DEP permits for that project. The second settlement agreement with the other private parties requires the reimbursement to the City of the $260,000.00 expended by the City in connection with the sewage spill, and confirms the contractor's obligation to undertake the mitigation project described above. Advisory Board Recommendation: I Resolution No. 2001-24497, adopted June 27,2001. Financial Information: Sou ree of Amount ,\i!;C\$um ': ApPl"Qved Funds: ,--r D ",: ~I, -sT i...1 Finance Dept. 'J'cn.l < City Clerk's Office Legislative Tracking: I Gary Held Sign-Offs: Department Director Assistant City Manager City Manager AGENDA ITEM 3A DATE 7-/o-0-;L CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 www.ci.miami-beach.f1.us REDEVELOPMENT AGENCY MEMORANDUM FROM: Chairman David Dermer and Members of the Redevelopment Agency Jorge M. Gonzalez \- - ^ /' Executive Director () r}/ v.O. f\ _ 01-- Murray H. Dubbin !\AI ~ General Counsel to the R~d~elopment Agency Date: July 10, 2002 TO: SUBJECT: A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY ("RDA") APPROVING TWO SETTLEMENT AGREEMENTS CONCERNING THE MIAMI BEACH MARINA SEWAGE SPILL: (1) THE FIRST AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), THE CITY OF MIAMI BEACH ("CITY"), THE RDA, AND PRIVATE PARTIES INVOLVED IN THE INCIDENT; AND (2) THE SECOND AGREEMENT BETWEEN THE CITY, THE RDA, AND THE PRIVATE PARTIES, TO RECOVER THE CITY'S COSTS ARISING FROM THIS INCIDENT, AND AUTHORIZING THE CHAIRMAN, SECRETARY AND ANY OTHER NECESSARY CITY PERSONNEL TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF THIS RESOLUTION. RECOMMENDATION The Executive Director and General Counsel to the Redevelopment Agency (RDA) recommend that the Chairman and Members of the RDA adopt the accompanying resolution approving execution of the two Settlement Agreements, the first with the Florida Department of Environmental Protection ("DEP") and the second with the private parties having some responsibility in this incident. ANALYSIS On June 20, 2000, a 54 inch Miami-Dade County Water and Sewer Department sewage force main was ruptured by a contractor at the Miami Beach Marina while installing a 45 foot long, 18-inch concrete piling for a boatlift. The rupture caused the discharge of approximately 25 million gallons of raw sewage into Biscayne Bay, and closed Miami Beach beaches. Remedial actions included redirecting sewage flow to a previously abandoned ocean outfall line, and repairing the ruptured force main. City expenses, including restoration costs, overtime, and attorneys' fees in connection with representation of the City before the various regulatory agencies, are calculated at $260,000.00. July 10, 2002 City Commission Memorandum - RDA Sewage Break Settlement Page 2 of 2 The Dade County Department of Environmental Resources Management (DERM) and the Florida Department of Environmental Protection (DEP) have conducted investigations into the facts and circumstances surrounding the incident. The City Commission previously authorized a settlement agreement with DERM by Resolution 2001-24497 on June 27, 2001 which contemplates these further agreements. A copy of that Resolution and Agreement are attached. These are the final two settlement agreements on this issue. The first agreement is with the Department of Environmental Protection ("DEP Agreement"). This DEP Agreement, in the form of a consent order, requires Miami Beach Marina Associates, Ltd., to pay $29,200 in settlement of the incident, which funds include $7,000 for costs and expenses incurred by DEP. and the remaining funds allocated to the State's Ecosystem Management and Restoration Trust Fund. The agreement also requires the contractor, Marin and Marin to perform a mitigation project in the South Beach area, specifically the placement of 1,200 tons of rip rap boulders within the limits of DERM's South Beach Artificial Reef Project, consistent with Corps of Engineers and DEP permits for that project. The completion of this project will be guaranteed through Marina's submittal of a performance bond. Further, certain limitations on future work within the Miami Beach Marina are imposed that require the review and approval of DEP before their commencement. The second settlement agreement is between the City and the other private parties involved in the incident. The agreement requires the reimbursement to the City of the $260,000.00 expended by the City in connection with the sewage spill, and confirms the contractor's obligation to undertake the mitigation project described above. The $260,000 includes the following costs: Police overtime $ Parks overtime Ocean Terrace Restoration Public Works operations Subtotal Other costs and expenses Total 10,260.00 5,584.00 20,000.00 148,754.00 184,598.00 75.402.00 260,000.00 The Administration and General Counsel to the RDA recommend the adoption of the resolution authorizing the Chairman and Secretary to execute the settlement agreements and related documents. JMG/MHD/CW(&GMH T:\AGENOA\2002\JUL 1 002lROA\5ewage Break Settlement Cornm mem.doc SETTLEMENT AGREEMENT This Settlement Agreement is entered into on this J tJ day of July, 2002, by and between the City of Miami Beach, the Miami Beach Redevelopment Agency (collectively "Miami Beach"), Miami Beach Marina Associates, Ltd. ("MBMA"), RCI Marine, Inc. ("RCI"), and Marin & Marin Construction, Inc. ("Marin"). WHEREAS, on June 24, 1983, Miami Beach entered into a Marina Lease Agreement with Carner Mason Associates, Ltd. for the operation of the Miami Beach Marina (the "Marina"); WHEREAS, the Marina Lease Agreement has been amended several times, and MBMA and RCI Marine, Inc. are the current lessee and operator, respectively, of the Miami Beach Marina pursuant to the terms of the Marina Lease Agreement, as amended; WHEREAS, on January 21,1986, Miami Beach and the Trustees of the Internal Improvement Trust Fund of the State of Florida ("Trustees") entered into Sovereignty Submerged Land Lease No. 130765469 for the Miami Beach Marina; WHEREAS, Miami Beach and the Trustees have amended the Submerged Land Lease several times and the Submerged Land Lease, as amended, has been in effect at all times material to this Settlement Agreement; WHEREAS, in 2000, MBMA hired a contractor to install boatlifts at the Marina; WHEREAS, the contractor, in turn, subcontracted with Marin to remove and replace pilings at the Miami Beach Marina; WHEREAS, Marin's work included the driving of concrete pilings into the submerged lands within the Marina; WHEREAS, on or about June 20, 2000, while Marin was working at the Marina, a sewage main owned and operated by Miami-Dade County was ruptured and released raw sewage into Government Cut; WHEREAS, as a result of the sewage spill, the Florida Department of Environmental Protection ("FDEP") initiated enforcement proceedings, OGC File No. 00-1867 and filed a proof of claim for $329,200 in In re Marin & Marin Construction. Inc., Case No. 00-4808-CIV -KING (S.D. Fla.); WHEREAS, FDEP, Miami Beach, MBMA, and Marin have agreed to enter into the Consent Order attached as Exhibit A to resolve FDEP's claims; WHEREAS, as a result of the sewage spill, the Miami-Dade County Department of Environmental Resources Management ("DERM") initiated enforcement proceedings against the parties hereto, which proceedings have been settled; WHEREAS, Miami Beach incurred substantial costs and expenses including legal fees, in responding to the sewage spill, and in defending the FDEP and DERM claims; WHEREAS, under the Marina Lease Agreement as amended, MBMA is obligated to indemnify Miami Beach from all losses arising out of the operation of the Miami Beach Marina, including losses arising out of the sewage spill; and WHEREAS, all Parties hereto desire to completely resolve and settle all issues relating to the sewage spill incident. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth below, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: -2- 1. The foregoing recitals are true and correct and are hereby incorporated by reference. 2. Marin shall pay the City the sum of $200,000 within 20 days of the Miami Beach City Commission's approval of this Agreement. The check or checks shall be made payable to "White & Case LLP Trust Account." 3. MBMA shall pay the City the sum of$60,000, which amount shall be paid as additional monthly rent in four consecutive monthly payments of$15,000 commenCing on October 1, 2002. 4. In addition to the foregoing, Marin agrees, at its own cost and expense, to construct a designated portion of the Artificial Reef Project near Miami Beach described in Exhibit A to the FDEP Consent Order (hereinafter the "Marin Mitigation Project"). Within ten (10) days following the approval of this agreement by the City of Miami Beach, Marin shall post a performance bond or equivalent security for the benefit of the City in the amount of 110% of the value of the Marin Mitigation Project. The security shall be in a form satisfactory to the City Attorney. The security will be released upon the City's receipt of written notice from FDEP that the Marin Mitigation Project has been completed in accordance with the Consent Order. 5. MBMA, RCI, and Marin agree to make the payments and perform the work required of each of them in paragraphs 11 (b) and 11 (c) of the Consent Order. The failure by MBMA, RCI, or Marin, or anyone of them to diligently perform under the Consent Agreement shall constitute a material breach of this agreement. 6. Time is of the essence for this Settlement Agreement, and as to each and every covenant, term, and condition. -3- 7. Except as to unasserted third party claims and except as expressly provided herein, this Settlement Agreement is intended to, and does, constitute a full and complete accord and satisfaction with respect to all claims, demands, liabilities, and obligations between the City and the parties related to the sewage spill. This Settlement Agreement shall be binding upon the parties hereto and their respective successors, and assigns. 8. This Settlement Agreement and the Appendices hereto constitute the entire understanding among the parties, and there are no other representations, understandings, or agreements among the parties with respect to the subject matter hereof. Neither this Settlement Agreement nor its Appendices may be changed, altered, or modified except in writing signed by the party to be bound. No breach of any covenant, agreement, warranty, or representation shall be deemed waived unless expressly waived in writing by the party who might assert such breach. This Settlement Agreement may be executed in counterparts and shall be deemed fully enforceable as if all parties signed a single document. 9. The parties acknowledge and agree that: (i) each party has had the benefit of the advice of separate counsel; (ii) each party has participated fully in negotiation and preparation hereof, and (iii) each party has carefully reviewed this Settlement Agreement and exhibits and is entering into this Settlement Agreement freely, without duress and for valuable consideration. Accordingly, this Settlement Agreement and its exhibits shall not be more strictly construed against any of the parties. 10. The parties agree to execute and deliver, upon request, such further documents as are reasonably necessary to effectuate the intent of his Settlement Agreement and are not inconsistent with its provisions. -4- 11. This Settlement Agreement and its Appendices shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. 12. Any ofthe parties hereto may enforce the terms of this Settlement Agreement in Miami-Dade County Circuit Court. In the event of any litigation between the parties in connection with or pursuant to this Settlement Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs at trial and at all levels of appeal. 13. Any notices required to be given by one party to the other, according to the terms hereof, shall be sent to: If to MIAMI BEACH: Mr. Gary M. Held First Assistant City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Mr. Douglas M. Halsey White & Case LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2352 If to MBMA and RCI: Mr. Robert W. Christoph, President 300 Alton Road Miami Beach, Florida 33139 With a copy to: Mr. Carter N. McDowell Bilzin Sumberg Dunn Price & Axelrod LLP 200 South Biscayne Boulevard Suite 2500 Miami, Florida 33131-2310 -5- If to MARIN: Mr. Rafael Marin Marin & Marin Construction, Inc. 1800 S.W. 27th Avenue Miami, Florida 33145-2457 With a copy to: Mr. Jorge L. Guerra Rodriguez, Tramont, Guerra & Nunez, PA 1401 Brickell Avenue Suite 600 Miami, Florida 33131-3506 -6- Jiifr~ Witnesses: \teG~~. Witnesses: tI~~A- 3 ~ ~~~). MIAMI BEACH MARINA ASSOCIATES, LTD. By: SoBe Marine, Inc., i Ie General Partner MARIN AND MARIN CONSTRUCTION, INC. By,~L . ~itIe: . ;Z ~ I '..u{ I -7- Attest: By:~ f~ ':>r,(~ Clerk ~ cr Attest: DEVELOPMENT By: ~\E/' M~. Secretary ~ 8' Approved as to form & language & for execution: g,.. -<\ -ov Date:/4v.F 0 )..-olJ 2--' -8- BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ) ) ) ) ) ) ) ) ) ) MARIN & MARIN CONSTRUCTION, INC., ) MIAMI BEACH MARINA ASSOCIATES, LTD., ) THE CITY OF MIAMI BEACH, THE MIAMI ) BEACH REDEVELOPMENT AGENCY, and RCI MARINE, INC. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Petitioners, vs. Respondents. IN THE OFFICE OF THE SOUTHEAST DISTRICT OGC FILE NO. 00-1867 ) ) ) ) CONSENT ORDER This Consent Order is entered into between the State of Florida Department of Environmental Protection ("Department"), The Board of Trustees of the Internal Improvement Trust Fund ("Board'') (collectively "Petitioners"), and Marin & Marin Construction, Inc. ("Marin"), Miami Beach Marina Associates, Ltd. ("Associates''), the City of Miami Beach and the Miami Beach Redevelopment Agency (collectively the "City"), and RCI Marine, Inc. ("RCI'') (Associates, Marin, the City, and RCI are referred to herein collectively as Respondents) to reach settlement of certain matters at issue between and among the parties hereto. The Department and the Board find and the Respondents admit the following: 1. The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce Part IV of Chapters 373 and 403, Florida Statutes, and the rules promulgated thereunder, Title 62, Florida Administrative Code. The Department has jurisdiction over the matters addressed in this Consent Order. 2. The Board is responsible for overseeing state owned lands and ensuring they are managed in trust for the citizens ofthe State of Florida pursuant to Chapters 253 and 258, Florida 6IZ712l102 s: IJ AM (2K) [FINALCOO.doc) Statutes, and the rules promulgated thereunder, Title 18, Florida Administrative Code. The Department has the duty to perform all staff functions related to the administration of state lands as provided in Section 253.002, Florida Statutes. 3. Respondents are persons within the meaning of Section 253.04 and 373.019(12), Florida Statutes. 4. The City and Associates are the owner and lessee, respectively, of a parcel of upland property located at the Miami Beach Marina (the "Marina"), 300 Alton Road, Miami Beach, Florida 33419, in Section 03, Township 54 South, Range 42 East. The Marina is authorized to be located on sovereign submerged land under an existing Sovereignty Submerged Land Lease (No. 130765469) from the Board (the "Lease"). 5. The Lease was originally executed by the City and the Board on January 21, 1986, and was recorded in Official Record Book 13020, Pages 2520 through 2526 of the Public records of Miami-Dade County, Florida. The Board issued the Lease to the City to operate a commercial marina. 6. In 1994, the City and the Board amended the Lease and renamed it the Modified Sovereignty Submerged Land Lease. The modified lease is recorded in Official Record Book 16509 at Pages 3694 through 3723. The modifications involved incorporation of a new survey and corrected legal description for the leased premises. 7. In 1996 and 1997, the City, Associates and the Board further agreed to amend the lease to correct a scrivener's error in the legal description said corrections are recorded in Official Record Book 17603 at Pages 2479 through 2483 and to reflect the approved, permitted and constructed widening of the northern breakwater (File no. 132833576, Permit no. 132315546). This amendment has not yet been fully executed. 8. The Respondents assert but the Department and Board do not find that in 2000, Associates hired Amerilift Technology Corporation, which in turn hired Marin to remove and replace pilings in the Marina in order to install boatlifts in the Marina. Prior to initiating this work, a permit application, complete with drawings showing the planned improvements, was submitted to and approved by the County. Although the County owns and operates a 54" inch sewage force main, which extends through the area covered by the permit application, it did not notify Marin of the force main's location within the area. 00c.*,S7lBll..2 612712002 .: 1 J AM (21e.) [FINALCOOdoc) 2 9. On June 20,2000, a force main was ruptured in the area that Marin was installing a 45-foot long, 18-inch concrete piling. The rupture caused the discharge of approximately 25 million gallons of raw sewage into Biscayne Bay. 10. The Department issued an Emergency Order (OGC Case 00-1279) on June 21, 2000, which authorized the Miami-Dade Water and Sewer Department to take immediate actions, as necessary, to repair the ruptured force main and such other actions as necessary to alleviate the flow ofraw sewage into Biscayne Bay. Pursuant to the Emergency Order, the flow was then diverted to the reactivated ocean outfall pipeline, which discharged the raw sewage 2.5 miles offshore until the force main was repaired. The parties have discussed the facts of this case and, having reached a resolution of the matter, the parties agree and it is, ORDERED: 11. For and in complete settlement of the matters addressed in this Consent Order: (a) Within 15 days of receipt of the payments due under paragraph ll(b), DEP shall file a notice of dismissal of the proof of claim it filed in In re Marin & Marin Construction. Inc., Case No. 00-4808-CIV-KING, (S.D. Fla.) (b) Within 30 days of the effective date of this Consent Order, Associates shall pay the Department $29,200 in settlement of the matters addressed in this Consent Order. This amount includes $7,000 for costs and expenses incurred by the Department in connection with this matter. Payment shall be made by cashier's check or money order. The instrument shall be made payable to "Department of Environmental Protection" and shall include thereon the OGe number assigned to this Consent Order and the notation "Ecosystem Management and Restoration Trust Fund." (c) Within 90 days of the effective date of this Consent Order, Marin shall perform the environmental restoration project and supply the information described in Attachment "A"; (d) Upon execution of this Consent Order, Petitioners shall proceed with the expeditious processing of the applications for permits/authorizations listed in Exhibit "B" once they are submitted to the Department. (e) In the event that Associates or Marin fail to perform their obligations under this paragraph, the City shall perform such obligations. OoI;,ff'"ll1 v.I 6/2712002 ., IJ AM (2K) [FlNALCOOdoc:) 3 12. Associates, Marin, the City, and RCI shall not conduct dredging or filling activities on or within the submerged land which is the subject of the Lease without first obtaining a valid Department permit or written authorization or written notification from the Department that the activities appear to be exempt from Department permitting requirements. Except as authorized by the Lease, no activities shall be conducted on state-owned lands below the mean high water lines and outside the area subject to the Lease without first obtaining a lease, easement, or other consent of use from the Department. The Respondents, Board, and Department agree to cooperate in the review and processing of the permits/authorizations for the activities listed in Attachment lOB." 13. Respondents shall allow all authorized representatives of the Department access to the property at reasonable times for the purpose of determining compliance with the terms of this Consent Order and the rules and statutes of the Department. 14. Entry of this Consent Order does not relieve Respondents of the need to comply with applicable federal, state or local laws, regulations or ordinances. 15. The terms and conditions set forth in this Consent Order may be enforced in a court of competent jurisdiction pursuant to Sections 120.69, 253.04, 258.397 and 373.129, Florida Statutes. Failure to comply with the terms of this Consent Order shall constitute a violation of Section 253.04 and 373.430, Florida Statutes. 16. Respondents are fully aware that a violation of the terms of this Consent Order may subject Respondents to judicial imposition of damages, civil penalties of up to $10,000 per day per violation and administrative fines of up to $10,000 per day per violation and criminal penalties. 17. Persons who are not parties to this Consent Order, but whose substantial interests are affected by this Consent Order have a right, pursuant to Sections 120.569 and 120.57, Florida Statutes, to petition for an administrative hearing on it. The Petition must contain the information set forth below and must be filed (received) at the Department's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida 32399-3000, within 21 days of receipt of this notice. A copy of the Petition must also be mailed at the time of filing to the District Office named above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative hearing pursuant to Section 120.57, Florida Statutes. Doc;.""IBII v.1 6/2712002 8, J) AM (lK) [FINALCQO.doc) 4 The petition shall contain the following information: (a) The name, address, and telephone number of each petltloner; the Department's Consent Order identification number and the county in which the subject matter or activity is located; (b) A statement of how and when each petitioner received notice of the Consent Order; (c) A statement of how each petitioner's substantial interests are affected by the Consent Order; (d) A statement of the material facts disputed by petitioner, if any; (e) A statement offacts which petitioner contends warrant reversal or modification of the Consent Order; (t) A statement of which rules or statutes petitioner contends require reversal or modification of the Consent Order; (g) A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Consent Order. If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. Persons whose substantial interests will be affected by any decision of the Department with regard to the subject Consent Order have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Sections 120.569 and 120.57, Florida Statutes, and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-106.205, Florida Administrative Code. A person whose substantial interests are affected by the Consent Order may file a timely petition for an administrative hearing under Sections 120.569 and 120.57, Florida Statutes, or may choose to pursue mediation as an alternative remedy under Section 120.573, Florida Statutes, before the deadline for filing a pe~ition. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement. The procedures for pursuing mediation are set forth below. Mediation may only take place if the Department and all the parties to the proceeding agree that mediation is appropriate. A person may pursue mediation by reaching a mediation agreement with all parties to the proceeding (which include the Respondents, the Department, and any person who has filed a timely and sufficient petition for a hearing) and by showing how Doc..:57t111 v.2 6/2712002 S, IJAM (2K) [fINALCOO.doc] 5 the substantial interests of each mediating party are affected by the Consent Order. The agreement must be filed in (received by) the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, within 10 days after the deadline as set forth above for the filing of a petition. The agreement to mediate must include the following: (a) The names, addresses, and telephone numbers of any persons who may attend the mediation; (b) The name, address, and telephone number of the mediator selected by the parties, or a provision for selecting a mediator within a specified time; (c) The agreed allocation of the costs and fees associated with the mediation; (d) The agreement of the parties on the confidentiality of discussions and documents introduced during mediation; (e) The date, time, and place of the first mediation session, or a deadline for holding the first session, if no mediator has yet been chosen; (t) The name of each party's representative who shall have authority to settle or recommend settlement; and (g) Either an explanation of how the substantial interests of each mediating party will be affected by the action or proposed action addressed in this notice of intent or a statement clearly identifying the petition for hearing that each party has already filed, and incorporating it by reference. (h) The signatures of all parties or their authorized representatives. As provided in Section 120.573, Florida Statutes, the timely agreement of all parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Florida Statutes, for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within sixty days of the execution of the agreement. If mediation results in settlement of the administrative dispute, the Department must enter a final order incorporating the agreement of the parties. Persons whose substantial interests will be affected by such a modified final decision of the Department have a right to petition for a hearing only in accordance with the requirements for such petitions set forth above, and must therefore file their petitions within 21 days of receipt of this notice. If mediation terminates without settlement of the dispute, the Department shall notify all parties in writing that the administrative Doc..."Ult ".:1 61271%002 8,13 AM (2K) [FINALCOO.doc] 6 hearing processes under Sections 120.569 and 120.57, Florida Statutes, remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action and electing remedies under those two statutes. 18. The Department hereby expressly reserves the right to initiate appropriate legal action to prevent or prohibit any violations of applicable statues, or the rules promulgated thereunder that are not specifically addressed by the terms of this Consent Order. 19. The Department, for and in consideration of the complete and timely performance by Respondents of the obligations agreed to in this Consent Order, hereby waives its right to seek judicial imposition of damages or civil penalties for alleged violations addressed in this Consent Order. 20. Respondents acknowledge and waive their right to an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes, on the terms of this Consent Order. Respondents acknowledges their right to appeal the terms of this Consent Order pursuant to Section 120.68, Florida Statutes, and waives that right upon signing this Consent Order. 21. No modifications of the terms of this Consent Order shall be effective until reduced to writing and executed by both the Respondents and the Department. This Consent Order may be executed in counterparts and shall be deemed fully enforceable as if all parties signed a single document. 22. All submittals and payments required by this Consent Order to be submitted to the Department shall be sent to the Florida Department of Environmental Protection, Southeast District, 400 N. Congress Avenue, Post Office Box 15425, West Palm Beach, Florida, 33416, Attention: Compliance and Enforcement Section, Environmental Resources Permitting. 23. In the event of a sale, conveyance or transfer of the upland leases of the property, if all of the requirements of this Consent Order have not been fully satisfied, Respondents shall, at least 30 days prior to the sale or conveyance of the property, (1) notify the Department of such sale or conveyance and (2) provide a copy of this Consent Order with all attachments to the new owner. The sale or conveyance of the property shall not relieve the Respondents of the obligations imposed in this Consent Order. 24. This Consent Order is a settlement of the Department's civil and administrative authority arising under Florida law to resolve the matters addressed herein. This Consent Order OocJI"lllt v.2 61271200% S, 13 AM 12K) (FINALCOO.doc) 7 is not a settlement of any criminal liabilities that may arise under Florida law, nor is it a settlement of any violation that may be prosecuted criminally or civilly under federal law . 25. This Consent Order is a final order of the Department pursuant to Section 120.52(7), Florida Statutes, and it is final and effective on the date filed with the Clerk of the Department unless a Petition for Administrative Hearing is filed in accordance with Chapter 120, Florida Statutes. Upon the timely filing of a petition this Consent Order will not be effective until further order of the Department. DocJ;,718ll v.2 6/2712001 ., IJ AM (2K) (PINALCOOdoc] 8 Witnesses: ~ ~OtJ~ Witnesses: Attest: By~.A~~ F~ .M~ Deputy Clerk Dod"1811 v.2 6/2712002 8: 13 AM (2K) [FlNALCOO.doc) MIAMI BEACH MARINA ASSOCIATES, LTD. By: MARIN AND MARIN CONSTRUCTION, INC. By: QOJ/14e- < ~ J I Title: ~eJ.1 (!. -..<. -,c- 9 By: ~~S~ Secretary Attest: Approved as to form and legal sufficiency: /Uf tr4\1.~ City Attorney Date: J?- )-OV 4~ koRDEREDthis ~Of p~da. STATE OF FLORIDA DEPARTMENT OFENVlRONMENTALPROTECTION ~l~(>~.(~ M Issa Meeker 8/8 02- Director of District Management FILING AND WLEDGMENT FILED, on this date, pursuant to ~120.52 Florida Statutes, wi t e designa ed Department Clerk, receipt of which is hereby acknowledged. . . ~ ~?,_Cl~ Date cc: Larry Morgan 00c:._S718t I ..2 6/27120028: 13 AM (2K) [FINALCOO.doc] 10 ATTACHMENT A South Beach Artificial ReefProiect Marin & Marin Construction, Inc. shall place 1200 tons of rip rap boulders within the limits of DERM's South Beach Artificial Reef Project consistent with the ACOE and DEP permits and approvals attached hereto. In addition, the Respondents shall provide the following information at least 30 days before placement of the rip rap: 1. A detailed map with the proposed area of work identified within the permitted site. The permit number should be written on the drawing. 2. A description of the project giving details to ensure that the project conforms with the permit. 3. A description of construction methodology, including an explanation of the manner in which the rip rap will be placed, its location, and its elevation. ilo'2712oo2 I: IJ AM (2K) (FlNALCOO.doo] ATTACHMENT B 1. The installation of boat lifts in the marina. 2. The installation offender piles off the northern breakwater. 3. The installation of concrete slabs or other mutually acceptable protection over the 54" inch forcemain. 4. Amendments to the Sovereignty Submerged Lands Lease. 612712002 .: 13 AM (2K) (FlNALCOO.doc] -12- , . OFFICE OF THE CITY ATTORNEY MURRAY B. DUBBIN City Attol'Dey ~ t/J1timn; 7/ertM , LOR I D A . 'Wi Telephone: Teleeopy: (305) 673-7470 (305) 613-7002 COMMISSION MEMORANDUM NO. ~ SUBJECf: Mayor Neisen Kasdin DATE: June 27, 2001 Members of the City Commission Jorge M. Gonzalez, City Manager . n..' 1/ Murray H. Dubbin, City Attorney N\ ~- RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH APPROVING THE SETTLEMENT AGREEMENT WITH MIAMI-DADE COUNTY FOR THE MIAMI BEACH MARINA SEWAGE SPILL AND AUTHORIZING THE MAYOR, CITY CLERK AND ANY OTHER NECESSARY CITY PERSONNEL TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF TmS RESOLUTION. TO: FROM: RECOMMENDATION The City Attorney recommends that the Mayor and City Commission adopt the accompanying resolution approving execution of the subject Settlement Agreement with Miami-Dade County. ANALYSIS Following the sewage spill at the Miami Beach Marina on or about June 20, 2000, the City of Miami Beach and other governmental regulatory agencies. including Mi~i-Dade County Department of Environmental Resources Management (DERM) and Florida Department of Environmental Protection (DEP), have undertaken investigations to AGENDA ITEM ~1 F DATE ~-b1U 1700 Convention Ceater Drive - Fourtll Floor - Miami Buell, Florida 33139 Commission Memorandum June 27,2001 Page 2 00 determine the causes of the spill, to recover costs these agencies and/or their governments incurred in connection with the spill, and to direct corrective action to prevent the incident from recuning. The attached settlement agreement reflects Miami-Dade County DERM's review and assessment of the spill and the settlement of all possible issues with respect to the claims of Miami-Dade County and DERM. While the City is a party to this agreement as lessee of the submerged bay bottom of the Miami Beach Marina, obligations of the City under this agreement are solely in connection with the payments to be made by insurance companies on behalf of third parties under whose policies the City is named as an additional insured. No liability for payment, or for any action related to the spill, is admitted or imposed, express or implied, on behalf of the City, in this agreement. In sum, the Agreement provides as follows: 1. The Parties to the Agreement are Miami-Dade County, Miami Beach Marina Associates, Ltd. ("MBMA"), RCI Marine, Inc., City of Miami Beach, Marin and Marin Construction, Inc., Henry Joseph Deluca, Commercial Union Insurance Company, Reliance Insurance Company, New York Marine and General Insurance Company, and American Equity Insurance Company (all parties are collectively identified in the Agreement as "Parties" except the County). 2. In the recitals on page one, the Agreement sets out the history of the sewage spill. 3. Paragraph 1, beginning at page 2, provides for payment to the County of $2.5 million dollars, by the insurance companies on behalf of the Parties, and Paragraph 2 provides for such payment within 30 days of the effective date of the Agreement. 4. Paragraph 3 prevents Marin from performing any County work for two years, commencing December 1, 2000. 5. Paragraph 4 directs MBMA to pursue an easement for the County for its 54- inch sewage force main inside the Miami Beach Marina, and provides for consent by the County for future use, modification or construction of the marina facilities within the easement area. Paragraph 4 also includes a waiver by MBMA for compensation for the easement, and provides for "locating" the main, and placing of concrete slabs over the main to protect it. OFFICE OF THE CITY ATTORNEY .1700 CONVENTION CENTER DRIVE. MIAMI BEACH. FLORIDA 331311 Commission Memorandum June 27, 200 1 Page 3 00 6. Paragraphs 5 and 6 provide for releases by the County to the Parties, and by the Parties to the County. 7. Paragraph 7 reserves the rights of the Parties to execute releases among them, but confinns that this Agreement shall not be construed as such a release. 8. Paragraphs 8,9, 11 and 12 are standard contract clauses. 9. Paragraph 10 provides that nothing in the Agreement constitutes an admission of liability or wrongdoing or coverage of any kind by or between the Parties or by the COWlty. We expect to bring future resolutions to the Commission for its consideration of (1) a settlement agreement reflecting DEP'g resolution of its investigation into this matter, and (2) a settlement agreement to collect the City's costs from this matter. Based on the foregoing, the City Attorney recommends that the Mayor and City Commission adopt the accompanying resolution approving the Agreement and authorizing its execution. cc: Douglas M. Halsey, Esq., White & Case MHD:RD:LAL:&-' F:\A TIO\SALL\SHEILA \RESO-ORD,CM\MBMaringSew-Spill.CM,rev .doc OFfiCE OF THE CITY ATTORNEY .1700 CONVENTION CENTER DRIVE. MIAMI BEACH. FLORIDA 33139 . '11' . or,,"'. .' ,)()D/-t t'l'1; (1.7F 0/'1 '?) :u.t:S '=:7G), \ 1::> (.:,...1'-01 ~- 712-wOl :r:. ~.: :.'; -.;: :-.'~ SE'ITLEMENT AGREEMENT BETWEEN . 0 I AUG - 3 An 11 : .~ 2 MIAMI-DADE COUNTY AND ell '1' All UtH'iMLU'tfiOfAcH MARINA ASSOClA TES, L TO. AND . ReI MARINE, INC. AND CITY OF MIAMI BEACH . ~ MARIN AND MARIN CONSTRUCTION, INC. AND HENRY JOSEPH DELUCA AND COMMERCIAL UNION INSURANCE COMPANY AND RELIANCE INSURANCE COMPANY . AND NEW YORK MARINE AND GENERAL INSURANCE COMPANY AND AMERICAN EQUITY INSURANCE COMPANY Thi~ Settlement Agreement is entered into on this Ol q-IJ. day of ::::r '" n~. , 200 1, by and between Miami-Dade County ("the County"), the Miaini Beach Marina Associates. Ltd. ("MBMA"), RCI Marine. Inc.. the City of Miami Beach (nMiami Beach"). Marin and Marin Construction.lne. ("Marin"). Henry Joseph DeLuca ("De Luca"). Commercial Union Insurance Company ("Commercial Union"), Reliance Insurance Company (''Reliancej. New York Marine and General Insurance Company ("New York Marine''). and American Equity Insurance Company ("American Equity"). When used herein thr term "the Parties" . . refers to all of the above entities but excludes the County. WHEREAS, the County owns and operates a 54-inch sewage force main ("the main") thatnms frOm the far southern portion of Miami Beach, across Government Cut, to Miami-Dade Water and Sewer Department's (nw ASD'sn) Central District Wastewater Treatment Plant; and Cp '. " \\rrrEREAS, an average of twenty-five million gallons of sewage passes through the main each day and there is no active alternative means of disposing of the sewage generated by Miami Beach other than sending such sewage through the main to the Central District Wastewater Treatment Plant; and WHEREAS, the main runs under a portion of the Miami Beach Marina owned by the City of Miami Beach and used by MBMA to moor boats and over which MBMA h-.s constructed finger piers and has installed boatlifts; and WHEREAS, Marin was retained to install further boat lifts at the Miami Beach Marina. such installation i.nvolving the driving of concrete pilings i~to the bay bottom; and WHEREAS, during the course of such pile driving, Marin drove a pile into the main, rupturing it 8ld causing the release of raw sewage into Government Cut and surrounding waters; and WHEREAS, the County incurred substantial costs due to the ruptured main; and WHEREAS, all Parties hereto desire to completely resol:ve and settle all issues which were orcould have been raised on all damages or costs of any nature incurred, including both direct and indirect costs incurred by the County, its contractors, agents, Or consultants, any claim the County may have to enforce penalties against the Parties pursuant to any provision of the Miami-Dade County Code or other applicable law arising out of the ruptured main, and any claim the Parties may have against the County arising out of the ruptured main. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth below, and other good and valuable consideration, the sufficiency of which is hereby acknowledged. the County and the Parties agree as follows: 1. MBMA, RCI, City of Miami Beach, Marin, and DeLuca. by and through their respective insurers, shall pay to the CountY the sum. of $2.5 million dollars to be paid as follows: Commercial Union (on behalf of MBMA, RCI and City of Miami Beach) $1,000,000.00 2of9 1 '. .' Reliance (on behalf of MBMA, ReI, and City of Miami Beach) $ 500,000.00 New York Marine (on behalf of Marin) 5 800,000.00 American Equity (on behalf of De Luca) $ 200,000.00 2. The payment contemplated in Paragraph 1 herein shall be made no later than 30 days of the effective date of this agreement. It is understanding of the County and the Parties that 5350,000.00 of the above sum shall be deposited into the County's Biscayne Bay Environmental Enhancement Trust Fund..lI 3. Marin shall not perfonn work on any County contract, either as a prime or a sub- contractor at any tier, for a period of two years, said'period to retroactively commence onDeeember 1,2000. 4.' (8) To the extent permissible under the modified Submerged Land Lease No. 130765469 and the Marina Lease (as amended)between the MBMA and Miami Beach, MBMA shall consent to or convey a 2S foot wide easement to the County, as necessary and at no cost to the County, in a form acceptable to the County over those areas under which the main runs. To the extent that the consent or conveyance of the easement ~uires the involvement of Miami Beach and/or the State of Florida, MBMA will assist the County in seeking sa: · conveyance or consent from Miami Beach and/or the State of Florida. MBMA shall be allowed to make use of, modify,or con~t boat slips, boatlifts, pilings, fuiger piers, or other facilities which lie inside any existing or future easement held by the County to the extent that the County expressly consents to such use, modification, or construction. No consent shall be given except in writing from the Director of the 30f9 q " .. Miami-Dade Water and Sewer Department or his designee; said consent shall not be unreasonably withheld and shall be either approved, denied or modified within 14 days of receipt of a written request for such consent. Any denial of consent shall set forth the reasons for denial in writing and shall to the extent possible set forth the modifications under which consent wOUld be granted. MBMA shall remain responsible for procuring appropriate permits for any such modification, use or co~struction and consent given under this clause shall not waive or modify any applicable County or other pennitting requirements. MBMA shall permit the County to observe such modification or construction at the County's discretion and shall provide the County not less than forty-eight (48) hours notice prior to the commencement of construction. (b) MBMA waives any legal right to compensation or other relief for the grant of such easement to the County and also waives any legal right to compensation or other relief as may lrise out of the County's reasonable withholding of or grant of consent to use of the marina structures as detailed in Paragraph 4(a) herein. (e) The County, at its sole expense, shall use reasonable efforts to locate the position of the . main as it p~sses under the Miami Beach Marina. MBMA shall provide assistan~ to the County insofar as such assistance is limited to pennitting the County to make use of areas inside the Marina, moving boats or other vessels as needed, and curtailing activities inside the Marina which may disrupt the process oflocation, such assistance to be made at MBMA' 5 sole expense. (d) MBMA shall place concrete slabs or other mutually accepted protection in the areas where mooring slips exist or are to be created, on the bay bottom over the top of the main, as located by the County. of sufficient width as to cover the diameter of the main plus five feet on either side of the main and . of sufficient thickness to prevent a pile being driven thfough the main. Such slabs or other protectim shall be . . placed within 120 days of the. County providing the MBMA with a reasonably accurate location of the pipe 4of9 ~ ., " and the issuance of any required permits for said installation. MBMA agrees to diligently pursue required permits as soon as the locational information is provided by the County. 5. The County completely releases and forever discharges the Parties, together with their past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives. employees, subsidiaries, affiliates, partners, predecessors and successors in interest and any and all other persons, .firms or corporations with whom any of the fonner have been, are now, or may hereafter be affiliated, of and from any and all past, pre~ent or future liability, in law or equity, claims, 'demands, obligations, actions, and/or causes of action whether based on a tort, contract, equitable subrogation, indemnification and/or fraud or other theory of recovery, and whether for' compensatory or punitive damages which the County and/or their beneficiaries may now have, or which may hereafter accrue or otherwise be acquired, on account of or in any way growing out of a claim arising out of the rupture of the County's 54-inch sewer force main which took place on or about JUne 20, 2000, as a result of work being performed in and around the Miami Beach Marina. This Settlement Agreement and Release, on part of the County, sball be fully binding and a complete settlement between the County and the Parties herein. The County and the ~arties hereby acknowledge and agree that the Release set forth herein is a General Release and further expressly waive and assume the risk of any and all claims for damages . that exist as of this date but that the County or Parties do not '<now or suspect to exi~ whether through ignorance, oversight, error, negligence or otherwise and which, ifknown, would materially affect their decision to enter into this Settlement Agreement and Release. The County further agrees that it has accepted payment of the sum specified in Paragraph 1 herem as a complete .compromise 5 on (0 , /, l' '. and satisfaction of any disputed issues of law and fact, and fully assumes the risk that facts or laws may be otherwise than it believes. 6. The Parties completely release and forever discharge the County, together with its past, present and future officers, directors, stockholders, attorney's agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, or and from any and all past, present or future liability, in law or equity, claims, demands, obligations, actions, and/or causes of action whether based on a tort, contract, equitable subrogation, indemnification andlor fraud or other theory of recovery, and whether for compensatory or punitive damages which the Parties and/or their. beneficiaries may now have, or which nuiy hereafter accrue or otherwise be acquired, on account of or in any way growing out of a claim arising of the rupture of the County's 54-inch sewer force main on or about June 20, 2000, as a result of work being performed in and . around the Miami Beach Marina. This Settlement Agreement and Release, on the part of the Parties, s~ll be fully binding and a complete settlement between the County and the Parties herein. The COunty and the Parties hereby acknowledge and agree that the Release set forth herein is a General Release and further expressly waive and assume the risk of any and all claims for damages which exist as of this date but that the County or Parties do not know of or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise and which ifknown would materially affect their decision to enter in this Settlement Agreement and Release. The Parties further agree that they have accepted the County's release as recited herein, their obligation to pay the amounts specified in Paragr8:ph 1, and the other obligations described herein as a Complete compromise and satisfaction of any disputed issues of law and fact, and fully asWIne the risk that facts or laws may be otherwise than they believe. 6 on (( 7. The Parties may elect to execute special releases between or among themselves; however, nothing herein shan be construed as a release between or among the Parties. 8. This agreement is complete and contains the full understanding of the Parties and the County. This agreement may not be modified without the express written consent of the Parties and the County. This agreement supersedes all other terms, provisions. or specifications of any prior documentation or agreement as may. exist between the Parties or the County. 9. This agreement is subject to approval of the Miami-Dade County Board of County Commissioners. . 10. Nothing contained herein constitutes an admission of liability or wrongdoing or coverage of any kind by or between the Parties or by the County. J 1. This agreement shall be interpreted according to Florida law. 12. .' This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. 12.. " . . Witnesses: ~ ~ff, Attest: By: City Clerk Approved as to fonn and Legal sufficiency: City Attorney Witnesses: Witnesses: By: Print Title: Rei CITY OF MIAMl BEACH By Its Mayor By: Print Name: Title: MARIN AND MARIN CONSTRUcnON, INC. By: Print Name: Title: COMMERCIAL UNION INSURANCE COMPANY (on behalf of Miami Beach Marina Assoc., Ltd. ReI Marine, Inc., and The City of Miami Beach) By: Print Name: Title: 80f9 '. ,,' Witnesses: Wimesses: Attest: By: ~t f~ck City Clerk APPROVED ~ TO FORM & LANOUAOE & FOR EXECUTION ~ ,...~o , Witnesses: Witnesses; ,. Ml~)U BEACH i\'lUI:'iA ASSOCI.~ TES. L TD, By: Sobe M:J.rine, Inc., its Sole General Partner By: Print Name: Robert W. ChriStoph Title: President RCI i\'l~"E, INC. By; Print Name: Robert W. Christoph Title: President CITY OF MIA."fi BEACH ::'lu~~r rd1 Print Name:-H"l~~ o. K AS OiN Title: M"'lO~ MARIN AND MA1UN CONSTRUcnON,lNC. By: Print Name: Title; COMMERCIAL UNION lNSURANCE COMPANY (on behalf of Miami Beach Marina Assoc., Ltd. ReI Marine, Ine., and The City of Miami Beach) By: Print Name: Title; . of9 . . Witn~lises; Witncsst$: AtteS1: By~ Ci-:y Cl~rlc Apllr'O'IIed :1.5 \~ forlT'. and I.~gal S\I!ti~:enc~: City At\(Irnc~' MIAMI BEACH MARlNA ASSOCIATES; LTD. By: Sobe Marine. lne., its Sole Oenerall'anner By: Print Nalne: Title:; Rob::rt W. Christoph P:'C:$ident Rei ~"Et ~c. By: Prin~ Name: ritle: Robert W. Chrh;toph Pr:siccnt CITY OF MIAMI BEACH By Its Mayor 'By: Print l'a:n~: Tii.le: .... lrlAR.1N AJ\"'1) MAR~ COl"STlUJcnON, INC. e. ~~~N~I~~M~ COMMERCIAL lJ1'li"lON ~Sl.l'R.A.Ncr CO~ANY (on behalf cfMillDi Beach Marina Assoc., Ltd. R.CI Marine,}:,c., and n, City of Miarni Beach) By. PriJrt Name: Title: B ef9 . -. I I , I ..I. I i. witu...ses: I ,. ; wi....: AtteIt: By: Ci~ Cleric. Appnwed as 10 form ID4 ~ s.:dlicienoy: City AUomey Witnesses: Witnesses: ~J;.~~ -~~--~ MIAMI BEACH MAlUNA ASSOCIATES, LTD. By: Sobe MArilla, lne., its Sole General Partner By: PrmtName: R,obert W. Cbri.etoph Title: President RCI MAlU'Nltt.INC. By: Print Nllme: . Robert w. Christoph Title; Presidant CJ.TY em ML\M1 BEACH By 1m Mayot :By: Print Name: Title: MAlUN AND MARIN CONSTllUCTlON, INC. By: Print NlIDle: T'JtIe: COMMERCIAl. UMON INStJ:ltANCE COMPANY . (on beha1fofMfamiBcach ~naAs.oc.. Ltd. RCIMarine, In~.. ...n..~,..;_) :By: ?1 PrintN..." :::.~_:;.#,N,~ Title: An~~ 8 of9 JUN: - 0.5' 011T(EI 17: 5 J B I LZ I N, C!IIMBERG, ET. AL {" I ~LlANCE JNSUAANCE COMPANY on behalf of Miam;' Bneh Marina Assoc., Ltd.. ReI Marine, Inc. · andTheC~'~OfM' ~d) Ofl By: ~~-.. ,- _\ Print Name: ~.St- ._ ~ ..a...~ Title: ~\6I '-" ~,~..&.tI Witntnts: Witnesses: Attest: Harvey Ruvin. Clerk By: Deputy Clerk Al'proved as to fonn and Legal sufficiency: Assistant County Attorney JUHlS-2001 17: 5<:1 P.OIl NEW YORK MAJUNE AND GtNERAt.lNSURANCl: COMPANY (on beha\f of Marin and Marin CoI\$1.Q)~.o.l\rb)t.L'r:;' t!'lU '~'Il"" ~V"~,,;".,, By: 'Print l..:ame: Title: AMERICAN EQllITY INSURANCE COMPANY (on behalf of Hel1ry Joseph DeLuca) "By: Print Name: Title: MIAMI-DADE COl,;NTY By 115 Board of County Commissioners By: County Manager 90r9 94X P.l! . . . 06/"9/2001 09:46 - 06108/01 09:47 PAX Witnessos: ~, Witnesses: - I~ f'~ rz;rvr Witn.SIlM~ Attest: Harvey lluvin, Clerk By. Deputy C1C1'k AWOvecl IS to t"onn lUlcl ~p1lUffioionGy. Assistant Cow.'lY AUomt))' - NO.352 &l10 1Zl011/011 . .lUI:LUNCE JNStt.RANCE COMPANY (on belWfofMiami'See.ohMlriuAssoe.. Ltd., R.CI MariDe, me. and Th~ City ofM'wni :Beach) By: Prim Name: Title: NEW YORK MA1mu AJtiJ) GEmRAL INSlJRANCE COMPANY (on behaJt of Marin and M8rln ConItructian. Inc.) ~~~ 8y: l'riDt Name~ PAUL SMITH Title: Loss ,Secretary, MI11'UAL MARINE OFFICE, MANAGERS AMIJ11CAN EQUlTYINStIlUNCE COMPANY (on behalf ofJiemy JDSDph Det..uca) By: Print Name: Title: MIAMl-DAD:E COUNTY By Its Board ofComrty ColTUDisIion.. By: Cowl:}' Manager 90U :,';",. '" ~.. QZ:80 to, O?/lO 3\.JI1)Ql '-' '- : /lD1l~ nUANCE JNSl]AANCI CC>>Q'ANY (on bebal!ofMif.mtBoacn Marini As&oCt" Lui..1lCI Marine. Inc. and Thcs City ol Miami Beac;h) liy: Wltn...cs: Prin1: Nm.: Tltl.: Wi\l1Cllses: NEW YORK MA.JUlII! AND G~I. JNS~~ COMPANY (on htbalfofMarin aad Millin ConlD'U~on"1a") By: '- Pri~ Nam~: Title: WiVlI'IIlsel: 1tl\d]t.'ICJJ( ~Q'OlTY DfS1JlW(CE COMPAN"i (em ~ebalfof'Reul')' 3Cl,.ph Det.uc.) By: ~~~ ~$- PrimNunr. ~ ~~ T\t1o: _ ~A{{'.-?! 7$1-: At't0l\; $.rv'Y a.u"h'\., Clctrk ML\MX-'J)AbE COIJNTY B)' 11. 'Board C1fCoun1.)' CommitlloD.n 'By: B)': Collnty Manasit' Deputy ~lork Appl'D\l.d u to form aud t.elll.uffloicncy: Mslstlnt Co"""ty AUol"l'l.ey 2"d wtll.2 : n tEl. B2 -nr Witnesses: Witnesses: Witnesses: RELIANCE INSURANCE COMPANY (on behalf of Miami Beach Marina Assoc., Ltd., RCI Marine, Inc. and The City of Miami Beach) By: Print Name: Title: NEW YORK MARINE AND GENERAL INSURANCE COMPANY (on behalf of Marin and Marin Construction, Inc.) By: Print Name: Title: AMERICAN EQUITY INSURANCE COMPANY (on behalf of Henry Joseph DeLuca) By: Print Name: Title: Attest: Harvey Ruvin, Clerk B ' ~ By: ~ 9of9 ,'--( ~.. I, , I RESOLUTION NO. 2001-24497 RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH APPROVING THE SETTLEMENT AGREEMENT WITH MIAMI-DADE COUNTY FOR THE MIAMI BEACH MARINA SEWAGE SPILL AND AUTHORIZING THE MAYOR, CITY CLERK AND ANY OTHER NECESSARY CITY PERSONNEL TO EXECUTE THE SETILEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF THIS RESOLUTION. WHEREAS, following the sewage spill at the Miami Beach Marina on or about June 20, 2000, the City of Miami Beach and other governmental regulatory agencies, including Miami-Dade County Department of Environmental Resources Management (DERM) and Florida Department of Environmental Protection (DEP), have undertaken investigations to detennine the causes of the spill, to recover costs these agencies and/or their governments incurred in connection with the spiJl, and to direct corrective action to prevent the incident from recurring; and WHEREAS, the attached settlement agreement reflects Miami-Dade County DERM's review and assessment of the spill and the settlement of all possible issues with respect to the claims of Miami-Dade County and DERM; and WHEREAS, while the City is a party to this agreement as lessee of the submerged bay bottom of the Miami Beach Marina, obligations of the City under this agreement are solely in connection with the payments to be made by insurance companies on behalf of third parties under whose policies the City is named as an additional insured; and WHEREAS, no liability for payment, or for any action related to the spill, is admitted or imposed, express or implied, on behalf of the City, in this agreement; and WHEREAS, the City Attorney expects to bring future resolutions to the Commission for its consideration of (1) a settlement agreement reflecting DEPts resolution , " , , . I I po of its investigation into the sewage spill, and (2) a settlement agreement to collect the City's costs from the sewage spill; and WHEREAS, based on the foregoing, the City Attorney recommends that the Mayor and City Commission adopt this resolution approving the Agreement and authorizing its execution. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Settlement Agreement with Miami-Dade County, for the Miami Beach Marina sewage spill, attached to this Resolution is hereby approved and the Mayor, City Clerk and any other necessary City personnel are hereby authorized to execute the Settlement Agreement and all other documents as may be necessary to carry out the intent of this Resolution. PASSED and ADOPTED this 27th day of June ~~ .2001. ArrEST: MAYOR ~ PaML- CITY CLERK. APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION " ~ City Attorney '~I 5",. d} Date F:\Atto\Sall\Sheila\Rcso-ord.an\MBMarinaScwaaeSplll.Res 2 ~ClJd- 7-'1 9 d.j · - , Request for Form Approval TO: Murray Dubbin, City Attorney THROUGH: Gary M. Held, First Asst. City Attorney Date of Request ~...').. ').. ,-o?- Person making request for form approvai: Name 6. ~ Department .L~ Phone Number C" r- '1 "2-- Date of Hearing for which form approval is needed lt1~rr- fYv.~~ ~~/j ~ ~ or ~"b;4- Board to which form being approved will be sent Date person submitting document needs it back bfi70 Explanation: 7)1/1"; rde-A.~ /J ~ ~~ rft-c. M ~ # ~ ~~ cs~ ~~ ) ~~._~ ~~ (S-ee ~)r)u- I hereby approve the attached document for approval as to "form, language and execution" by the City Attorney: Asst. City Ally Approval: ~ Date: ~ ,... ')..- ]., - 0 '2-- . GENERAL RELEASE K NOW ALL MEN BY THE S E PRE S E N T S: THAT, THE CITY OF MIAMI BEACH, and THE CITY OF MIAMI BEACH REDEVELOPMENT AGENCY, their commissioners, mayor, directors, officers, employees, agents, attorneys, successors and assigns, collectively referred to herein as "first party," for and in consideration of the sum of TWO HUNDRED THOUSAND AND NO/100 (200,000.00) DOLLARS and other valuable consideration paid to the City of Miami Beach from or on behalf of MARIN & MARIN CONSTRUCTION, INC., MUTUAL MARINE OFFICE and NEW YORK MARINE AND GENERAL INSURANCE COMPANY, their respective directors, officers, employees, agents, attorneys, insurers, re-insurers, successors and assigns, collectively referred to herein as '~second party," the payment of which thereof is hereby acknowledged, HEREBY remises, releases, acquits, satisfies, and forever discharges the said second party, of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, attorneys' fees, costs, controversies, agreements, promises, variances, trespasses, damages, judgments, court costs, executions, claims and demands whatsoever, in law, admiralty, or in equity, which said first party ever had, now has, or which any attorney, agent, successor, assignee or devisee of said first party, now or hereafter can, shall or may have, against said second party, in anyway arising from or related to the sewer main break at Miami Beach Marina on June 20, 2000 (hereinafter the Accident). IN ADDITION to the foregoing, and without limiting the scope thereof, it is specifically understood that this Release includes and discharges all claims of any type whatsoever which were or might have been asserted concerning any and all policies of insurance issued or written by second party and/or litigation arising from or related to claims asserted as a GENERAL RELEASE Page 1 of 4 result of or concerning the Accident, including but not limited to claims on or about policy number MMO-20061 ML500 (hereinafter the policy), or any aspect of how those claims have been or may be handled by second party. FURTHER, first party agrees and acknowledges that this is the settlement of a disputed claim and that it does not constitute an admission of liability by second party. FURTHER, first party represents and warrants that it has discussed the terms and conditions of this Release with its attorney and that first party understands the full terms and conditions of this Release. FURTHER, first party represents, warrants, and acknowledges that this Release is executed by a duly authorized representative of first party, and it is the binding act and deed of the first party. FURTHER, that first party hereby agrees and acknowledges that the first party releases and is not entitled to any legal fees, costs, or other charges or expenses from second party. FURTHER, the first party specifically represents, warrants and undertakes that it is the party entitled to make the claim or claims it has asserted concerning the Accident, and that it has not assigned and will not assign its claim against the second party to any third party. FURTHER, this Release discharges and completes the second party's obligation to defend the first party concerning any and all claims, losses arising from or related to the Accident, including in the limitation proceeding filed in the United States District Court of the Southern District of Florida bearing case number 00-4808-CIV-King and being styled as "In the matter of Marin & Marin Construction, Inc., motor vessel GREG, and the barge RG-4 for exoneration from or limitation of liability", if any. GENERAL RELEASE Page 2 of 4 stated below. IN WITNESS WHEREOF, we have hereunto set our hands and seals on the dates "'11, ,";' .,.~:~.. . /: >: f.-tv. ."..< C, . " . : ~J . ., :.J I . ,-- ./...~ ..0' ~ ,/:i. ..- ~ ~ , . _. ".i.':-o,O: -- (seal) ,,~/ Date: ArJ.61A41 2.2.., ).OO~ ATTEST: WP~ CITY CLERK ) )SS COUNTY OF MIAMI-DADE ) THE FOREGOING RELEASE was acknowledged before me this / ;?~e...day of 4~ ,2002, by f)~ ~ who i~sonally kn~.me.. or has prodooed ai idAntificatinn ana '{{ho did/did not take-.an ~ G8ttT, and who attests to be the duly authorized representative of THE CITY OF MIAMI BEACH. ~~ri9 My Commission Expires: Commission number. STATE OF FLORIDA OFFICIAL NafARY SEAL kERRY HERNANDEZ Y PUBUC sr ATE OF FLORIDA COMMISSION NO. CC832806 MY COMMISSION EXP. MAY 3,2(JQ:4 GENERAL RELEASE Page 3 of 4 ~ ~- THE CITY F M MI BEACH REDEVELOPMENT AGENCY By: Print Title: (seal) Date: A-u&u$ 2)... ~~ STATE OF FLORIDA ) )SS ) ,., i. !iJ.~ " ,/... ~o f /.1 ("..... .:~. :..t.f~;~.Jf'~'€ "~'/" . :' <v .;. .",,1. -01. s, L " - ,~." ,-.-- t.~ : ~~" ,,-: . : c; .~ ~ ..-:: :.::::.. +~ ('"J. i' -~ . - ...<.......(.1 ... ~.. .:: '<, '-:.;-. . ~..~ . :~ ~., ~ ~ . .,. . .~~. (. ~~~~ "''''/;, ,II [~ ~.. f:~" \'_ \ '..... .........",,,. ... r" "'S,.; s ..L...' ~ ~l.\ ,lit... '\ - :"'::~'" ATTEST: l11AM~ p~ SECRETARY TO THE RDA COUNTY OF MIAMI-DADE THE FOREGOING RELEASE was acknowledged before me this # ;~ay of ~ .2002, by j)~ ~~ who ~nallY k~ or ttas produoed - as identificotion and who didldid not tal<8 an oath, and who attests to be the duly authorized representative of, THE CITY OF MIAMI BEACH REDEVELOPMENT AGENCY. ota ublic State 0 My ommission Expires: Commission number: OFFICIAL NOTARY SEAL KERRY HERNANDEZ NOTARY PUBUC SlATE OF FLORIDA COMMISSION NO. CC832806 MMISSION EXP. MAY 3.2003 APPROVED AS TO FORM & LANGUAGE & FOR EXEC N g-/2 ~2- Date F:\A TTO\HELG\L1TIGA TI\SewageBreak\Release.DOC GENERAL RELEASE Page 4 of 4 '" GENERAL RELEASE K NOW ALL MEN B Y THE S E PRE S E N T S: THAT, THE CITY OF MIAMI BEACH, and THE CITY OF MIAMI BEACH REDEVELOPMENT AGENCY, their commissioners, mayor, directors, officers, employees, agents, attorneys. successors and assigns, collectively referred to herein as "first party," for and in consideration of the sum of TWO HUNDRED THOUSAND AND NO/100 (200,000.00) DOLLARS and other valuable consideration paid to the City of Miami Beach from or on behalf of MARIN & MARIN CONSTRUCTION, INC., MUTUAL MARINE OFFICE and NEW YORK MARINE AND GENERAL INSURANCE COMPANY, their respective directors, officers, employees, agents, attorneys, insurers, re-insurers, successors and assigns, collectively referred to herein as "second party," the payment of which thereof is hereby acknowledged, HEREBY remise.s, releases, acquits, satisfies, and forever discharges the said second party, of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues" sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, attorneys' fees, costs, controversies, agreements, promises, variances, trespasses, damages, judgments, court costs, executions, claims and demands whatsoever, in law, admiralty, or in equity, which said first party ever had, now has, or which any attorney, agent, successor, assignee or devisee of said first party, now or hereafter can, shall or may have, "'. against said second party, in anyway arising from or related to the sewer main break at Miami Beach Marina on June 20, 2000 (hereinafter the Accident). IN ADDITION to the foregoing, and without limiting the scope thereof, it is specifically understood that this Release includes and discharges all claims of any type whatsoever which were or might have been asserted concerning any and all policies of insurance issued or written by second party and/or litigation arising from or related to claims asserted as a GENERAL RELEASE Page 1 of 4 ~. result of or concerning the Accident, including but not limited to claims on or about policy number MMO-20061 ML500 (hereinafter the policy), or any aspect of how those claims have been or may be handled by second party. FURTHER, first party agrees and acknowledges that this is the settlement of a disputed claim and that it does not constitute an admission of liability by second party. FURTHER, first party represents and warrants that it has discussed the terms and conditions of this Release with its attorney and that first party understands the full terms and conditions of this Release. FURTHER, first party represents, warrants, and acknowledges that this Release is executed by a duly authorized representative of first party, and it is the binding act and deed of the first party. FURTHER, that first party hereby agrees and acknowledges that the first party releases and is not entitled to any legal fees, costs, or other charges or expenses from second party. FURTHER, the first party specifically represents, warrants and undertakes that it is the party entitled to make the claim or claims it has asserted concerning the Accident, and that it has not assigned and will not assign its claim against the second party to any third party. FURTHER, this Release discharges and completes the second party's obligation to defend the first party concerning any and all claims, losses arising from or related to the Accident, including in the limitation proceeding filed in the United States District Court of the Southern District of Florida bearing case number 00-4808-CIV-King and being styled as "In the matter of Marin & Marin Construction, Inc., motor vessel GREG, and the barge RG-4 for exoneration from or limitation of liability", if any.' GENERAL RELEASE Page 2 of 4 . IN WITNESS WHEREOF, we have hereunto set our hands and seals on the dates stated below. By: Print Title: (seal) €1L- Date:~~ cl;CMr ATTEST: CITY CLERK STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) THE FOREGOING RELEASE was acknowledged before me this ~ft- day of ~~--Ip:'2002. by '7n~ d.~ ~ who is ~ known to me or has produced as identification and who did/did not take an oath, and who attests to be the duly authorized representative of THE CITY OF MIAMI BEACH. - . ' ~,~~ ~~\; ~ _....:;,::::,' My Commission Expires: tJ,;2// lJ b ~ Commission number: j)DIJI)~CffJ GENERAL RELEASE Page 3 of 4 ITY. F MIAMI BEACH REDEVELOPMENT AGENCY (seal) Date: ~/~ ~dtfl;r ATTEST: ~oe~ SECRETARY TO THE RDA STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) THE FOREGOING RELEASE was acknowledged before me this ~ day of ~, 2002, by 7no/ ~ ~ who is pers~wn to me or has produced as identification and who did/did not take an oath, and who attests to be the duly authorized representative of, THE CITY OF MIAMI BEACH REDEVELOPMENT AGENCY. ~, IN/am R HatrI8/d ~ \~ ...,,,,"- -.. op,..;I ~ F DDoo202o _ ebruary 18. 200S Notary Public State of Flo a / My. Commission Expires: o::;..!J Kia.? Commission number: DlJ 00 ~();;X) APPROVED AS TO FORM & LANGUAGE &~ City Attorney 1/~uv Date F:\A TTO\HELG\L1TIGA TI\SewageBreak\Release.DOC GENERAL RELEASE Page 4 of 4 J ."-'''''~ --- ~""' ---- ------ , , . . RESOLUTION NO. 2002-24921 RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH APPROVING TWO SETTLEMENT AGREEMENTS CONCERNING THE MIAMI BEACH MARINA SEWAGE SPILL; (1) THE FIRST AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), THE CITY, THE MIAMI BEACH REDEVELOPMENT AGENCY ("RDA"), AND PRIVATE PARTIES INVOLVED IN THE INCIDENT; AND (2) THE SECOND AGREEMENT BETWEEN THE CITY, THE RDA, AND THE PRIVATE PARTIES, TO RECOVER THE CITY'S COSTS ARISING FROM THIS INCIDENT, AND AUTHORIZING THE MAYOR, CITY CLERK AND ANY OTHER NECESSARY CITY PERSONNEL TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF THIS RESOLUTION. WHEREAS, following the sewage spill at the Miami Beach Marina on or about June 20, 2000, the City of Miami Beach and other governmental regulatory agencies, including Miami-Dade County Department of Environmental Resources Management ("DERM") and Florida Department of Environmental Protection ("DEP"), have undertaken investigations to determine the causes of the spill, to recover costs these agencies and/or their governments incurred in connection with the spill, and to direct corrective action to prevent the incident from recurring; and WHEREAS, on June 27, 2001, the City Attomey presented to the Commission a settlement agreement with Miami-Dade County resulting from DERM's findings and actions with respect to the incident, which the Commission approved by Resolution 2001- 24497; and WHEREAS, the attached settlement agreement in the form of the Consent Order with DEP ("the DEP Agreement") reflects DEP's review and assessment of the spill and the settlement of all possible issues with respect to the claims of DEP, and the State of Florida, through the Board of Trustees of the Internal Improvement Trust Fund; and WHEREAS, while the City is a party to this DEP Agreement as lessee of the submerged bay bottom of the Miami Beach Marina, no obligations of the City arise under this agreement other than in connection with future dredging and filling activities at the Miami Beach Marina, solely to the extent that the City acknowledges that such future activities are subject to the review and approval of DEP; and WHEREAS, no liability for payment, or for any action related to the spill, is admitted or imposed, express or implied, on behalf of the City, in this DEP Agreement; and , WHEREAS, the second agreement between the City, the RDA, and the private parties ("the City Agreement") requires those parties identified as having some responsibility in connection with the incident, either by their action, or by prior agreement to indemnify the City, are required to reimburse the City for expenses arising from the incident, which have been calculated at $260,000; and WHEREAS, based on the foregoing, the Administration and the City Attorney recommend that the Mayor and City Commission adopt this resolution approving the DEP Agreement and the City Agreement, authorizing their execution. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Settlement Agreement with the Florida Department of Environmental Protection, and the City Agreement with the private parties, for the Miami Beach Marina sewage spill, attached to this Resolution are hereby approved and the Mayor, City Clerk and any other necessary City personnel are hereby authorized to execute the Agreements and all other documents as may be necessary to carry out the intent of this Resolution. PASSED and ADOPTED this 10th day ,2002. ATTEST: ~~ f"^'~ CITY CLERK APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 7 - ~""d"2..- Date T:\AGENDA\2002\JUL 1002lREGULAR\Sewage Break SettJement DEPCltyAgr.Res.doc 2 CI1Y OF MIAMI BEACH COIVMISSION ITEM SUMMARY m . . - Condensed Title: A Resolution of the Mayor and City Commission of the City of Miami Beach ("City") approving two Settlement Agreements concerning the Miami Beach Marina Sewage Spill: (1) the First Agreement between the Florida Department of Environmental Protection ("DEP"), the City, the Miami Beach Redevelopment Agency ("RDA"), and Private Parties involved in the incident; and (2) the Second Agreement between the City, the RDA, and the Private Parties, to recover the City's costs arising from this incident, and authorizing the Mayor, City Clerk and any other necessary City personnel to execute the Settlement Agreement and all other documents as may be necessary to carry out the intent of this Resolution. Issue: Shall the Mayor and City Commission approve two Settlement Agreements concerning the Miami Beach Marina Sewage Spill with DEP and Private Parties, respectively? Item Summa IRecommendation: As a result of the rupture of the 54 inch sewage force main on June 20, 2000 the City entered into a Settlement Agreement with DERM on June 27, 2001 which contemplated two Settlement Agreements with 1) DEP and 2) Private Parties. The DEP Agreement requires Miami Beach Marina Associates, Ltd., to pay $29,200 in settlement of the incident, which funds include $7,000 for costs and expenses incurred by DEP, and the remaining funds allocated to the State's Ecosystem Management and Restoration Trust Fund. The agreement also requires the contractor, Marin and Marin to perform a mitigation project in the South Beach area, specifically the placement of 1,200 tons of rip rap boulders within the limits of DERM's South Beach Artificial Reef Project, consistent with Corps of Engineers and DEP permits for that project. The second settlement agreement with the other private parties requires the reimbursement to the City of the $260,000.00 expended by the City in connection with the sewage spill, and confirms the contractor's obli ation to undertake the miti ation ro'ect described above. Board Recommendation: Resolution No. 2001-24497, ado ted June 27,2001. Financiallnfonnation: Source of Amount Account Approved Funds: 1 D 2 3 4 Finance Dept. Total City Clerk's Office Legislatiw Tracking: I Gary Held SI n-effs: Department Director Assistant .city. Manager City Manager AGENDA ITEM ~ DATE 7-to-o::L . . CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 www.ci.miami-beach.f1.us TO: FROM: SUBJECT: COMMISSION MEMORANDUM Mayor David Dermer and Members of the City Commission Jorge M. Gonzalez \ City Manager 0 Murray H. Dubbin ^ ~ r City Attorney (~V\ Date: July 10, 2002 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH ("CITY") APPROVING TWO SETTLEMENT AGREEMENTS CONCERNING THE MIAMI BEACH MARINA SEWAGE SPILL: (1) THE FIRST AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), THE CITY, THE MIAMI BEACH REDEVELOPMENT AGENCY ("RDA"), AND PRIVATE PARTIES INVOLVED IN THE INCIDENT; AND (2) THE SECOND AGREEMENT BETWEEN THE CITY, THE RDA, AND THE PRIVATE PARTIES, TO RECOVER THE CITY'S COSTS ARISING FROM THIS INCIDENT, AND AUTHORIZING THE MAYOR, CITY CLERK AND ANY OTHER NECESSARY CITY PERSONNEL TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL OTHER DOCUMENTS AS MAY BE NECESSARY TO CARRY OUT THE INTENT OF THIS RESOLUTION. RECOMMENDATION The City Manager and City Attorney recommend that the Mayor and City Commission adopt the accompanying resolution approving execution of the two Settlement Agreements, the first with the Florida Department of Environmental Protection ("DEP") and the second with the private parties having some responsibility in this incident. ANALYSIS On June 20, 2000, a 54 inch Miami-Dade County Water and Sewer Department sewage force main was ruptured by a contractor at the Miami Beach Marina while installing a 45 foot long, 18-inch concrete piling for a boatlift. The rupture caused the discharge of approximately 25 million gallons of raw sewage into Biscayne Bay, and closed Miami Beach beaches. Remedial actions included redirecting sewage flow to a previously abandoned ocean outfall line, and repairing the ruptured force main. City expenses, including restoration costs, overtime, and attorneys' fees in connection with representation of the City before the various regulatory agencies, are calculated at $260,000.00. , , July 10,2002 City Commission Memorandum Sewage Break Settlement Page 20(2 The Dade County Department of Environmental Resources Management (DERM) and the Florida Department of Environmental Protection (DEP) have conducted investigations into the facts and circumstances surrounding the incident. The City Commission previously authorized a settlement agreement with DERM by Resolution 2001-24497 on June 27, 2001 which contemplated these further agreements. A copy of that Resolution and Agreement are attached. These are the final two settlement agreements on this issue. The first agreement is with the Department of Environmental Protection ("DEP Agreement"). This DEP Agreement, in the form of a consent order, requires Miami Beach Marina Associates, Ltd., to pay $29,200 in settlement of the incident, which funds include $7,000 for costs and expenses incurred by DEP, and the remaining funds allocated to the State's Ecosystem Management and Restoration Trust Fund. The agreement also requires the contractor, Marin and Marin to perform a mitigation project in the South Beach area, specifically the placement of 1,200 tons of rip rap boulders within the limits of DERM's South Beach Artificial Reef Project, consistent with Corps of Engineers and DEP permits for that project. The completion of this project will be guaranteed through Marina's submittal of a performance bond. Further, certain limitations on future work within the Miami Beach Marina are imposed that require the review and approval of DEP before their commencement. The second settlement agreement is between the City and the other private parties involved in the incident. The agreement requires the reimbursement to the City of the $260,000.00 expended by the City in connection with the sewage spill, and confirms the contractor's obligation to undertake the mitigation project described above. The $260,000 includes the following costs: Police overtime $ Parks overtime Ocean Terrace Restoration Public Works operations Subtotal Other costs and expenses Total 10,260.00 5,584.00 20,000.00 148,754.00 184,598.00 75.402.00 260,000.00 The Administration and City Attorney recommend the adoption ofthe resolution authorizing the Mayor and City Clerk to execute the settlement agreements and related documents. JMG/MHD/~GMH T:\AGENDA\2002\JUL 1002\REGULAR\Sewage Break SetUement Corrm mem.doc