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HomeMy WebLinkAboutExhibit AEXHIBIT "A" 460000XXXX SOUTH FLORIDA WATER MANAGEMENT DISTRICT MEMORANDUM OF UNDERSTANDING BETWEEN THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND MIAMI-DADE COUNTY AND CITY OF MIAMI AND CITY OF WEST MIAMI Nok IL AND CITY OF SWEETWATER This Memorandum of Understanding (MOU) is made and entered into on, , 2025, by and between the "Parties," the South Florida Water Management District, hereunder referred to as the "DISTRICT", and Miami -Dade County, City of Miami, City of West Miami, City of Sweetwater (collectively referred to as LOCAL GOVERNMENTS). INTRODUCTION/BACKGROUND This MOU is designed to be applied in the time period preceding, during and immediately following storm events where excessive rain is expected in the geographic area of the Local Governments (hereinafter referred to as "major storm") The purpose of this MOU is to define responsibilities for the cooperation among the parties to this agreement in order to reduce potential flooding and adverse water quantity impacts within the geographic areas of the Local Government, C-4 Basin and downstream areas. The DISTRICT has adopted the C-4 Basin Operating Plan (Operating Plan) for discharges into the C-4 Canal, a copy of which is attached as Exhibit "1", as may be amended by the DISTRICT Memorandum of Understanding, 46XXX, Page 1 of 11 6/21/2022 from time to time. The DISTRICT believes that operation consistent with the Operating Plan will provide the best framework to reduce potential flooding and adverse water quantity impacts in the geographic area of the Local Governments, C-4 basin and downstream areas. Local Governments acknowledge that the Operating Plan identifies the conditions in the C-4 basin under which Stormwater Pump operations could result in an increased risk of flooding in the C-4 Basin. Local Governments understand that under certain conditions, the operation of the Stormwater Pumps may result in adverse flood impacts to property owners within the basin. Local Governments, as the operators of the Stormwater Pumps, acknowledge that the conveyance capacity of the C-4 Canal is limited and may not be able to accept the full combined flow of the Stormwater Pumps during heavy rainfall/flooding conditions. After notification by the DISTRICT of the potential of a major storm event, Local Governments agree to coordinate with each other on the operation of each pump so as to comply to the extent possible with the Operating Plan. The parties to this MOU fully understand that the available capacity of the C-4 Canal is limited and therefore requires cooperation between the parties regarding the operation of Stormwater Pumps during a major storm event. The parties additionally understand that the operation of the associated Stormwater Pump will not provide Local Governments with ideal drainage. Operation of the Stormwater Pumps by the Local Governments pursuant to the Operating Plan are intended to improve upon the drainage currently experienced by Local Governments but due to capacity constraints in the C-4 Canal, will not provide full drainage to their communities. The parties acknowledge that pursuant to Rule 40E-4.451, Fla. Admin. Code: "Upon the (DISTRICT's) determination that an emergency exists within its geographic jurisdiction or any part thereof, as defined in subsection (1)(b)(1-2), the Executive Director shall issue an emergency order which shall describe the conditions which are causing the emergency and the type of corrective action necessary to minimize or abate the emergency condition." Actions pursuant to the DISTRICT's emergency authority will supersede this MOU. WITNESSETH THAT: WHEREAS, the DISTRICT is a public corporation of the State of Florida, created by the Florida Legislature and given those powers and responsibilities enumerated in Chapter 373, Florida Statutes to include entering into contracts and agreements with public agencies, private corporations or other persons; and WHEREAS, Pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder, this Memorandum of Understanding (MOU) defining the process for cooperation in the operation of the LOCAL GOVERNMENTS stormwater pump stations discharging to C-4 Canal (hereinafter called Stormwater Pumps) is entered into between the DISTRICT and LOCAL GOVERNMENTS, by mutual consent, and without this MOU constituting a waiver of any authority of the LOCAL GOVERNMENTS and the DISTRICT under Chapter 373, Florida Statutes. WHEREAS, each party to this MOU warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms and conditions of this MOU. Memorandum of Understanding, 46XXX, Page 2 of 11 6/21/2022 WHEREAS, Miami -Dade County is a political subdivision of the State of Florida and is the Applicant of ERP Permit Application No. 060525-24, which requests authorization for Miami - Dade to construct and operate a surface water management system including pump discharge to the C-4 Canal. WHEREAS, City of Miami is a local municipality and is the Applicant of ERP Permit Application No. 030311-10, which requests authorization for Miami to construct and operate a surface water management system including pump discharge to the C-4 Canal. WHEREAS, City of West Miami is a local municipality and is the Applicant of ERP Permit Application No. 030401-4, which requests authorization for West Miami to construct and operate a surface water management system including pump discharge to the C-4 and C-3 Canals. WHEREAS, City of Sweetwater is a local municipality and is the Permittee of ERP Permit Nos. 1301660-P and 13-02009-P, which granted authorization for Sweetwater to construct and operate a surface water management system including pump discharge to the C-4 Canal; and NOW THEREFORE, in consideration of the covenants and representations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 1.1 ARTICLE 1— RESPONSIBILITIES OF THE PARTIES JOINT RESPONSIBILITIES Not later than thirty (30) days after the effective date of this MOU, LOCAL GOVERNMENTS shall each designate, in writing, a principle contact person to coordinate operation of the Stormwater Pumps. Each LOCAL GOVERNMENT shall provide the DISTRICT contact person with a list of contacts and contact information in writing prior to the 1st day of May of each year for the term of this MOU 1.2 The parties shall meet at least annually to assess whether the operation of the Stormwater Pumps has resulted in any adverse impacts to the C-4 Basin and downstream areas. 1.3 This MOU may be amended only by mutual written agreement of all of the parties to this agreement. LOCAL GOVERNMENTS' RESPONSIBIITIES 1.4 LOCAL GOVERNMENTS shall coordinate with each other in the operation of the Stormwater Pumps upon notification by the DISTRICT of the expectation of a major storm event, the contacts listed herein, or their designees, shall meet as soon as reasonably practicable to discuss cooperative operation of the LOCAL GOVERNMENTS' pumps in order to reduce flooding and adverse water quantity impacts within the geographic area of the LOCAL GOVERNMENTS, C-4 Basin and downstream areas. These discussions shall include a consideration of the Operating Plan. Memorandum of Understanding, 46XXX, Page 3 of 11 6/21/2022 1.5 LOCAL GOVERNMENTS shall provide and maintain locks on the control mechanism for their respective Stormwater Pumps to prevent their unauthorized operation 1.6 LOCAL GOVERNMENTS shall prohibit and otherwise prevent unauthorized operation of the Stormwater Pumps. LOCAL GOVERNMENTS shall maintain a record or log of the operation of the Stormwater Pumps. The record or log may be kept manually or electronically and shall provide an accurate record of times, dates and periods that the Stormwater Pumps are in operation. 1.7 LOCAL GOVERNMENTS acknowledge that as a result of the operation of the Stormwater Pumps adverse impacts prohibited by the applicable Permit(s), Chapter 373, Florida Statutes, or the DISTRICT rule, may occur to either the water resources or other C4, C-3, C-2 Canal or downstream system users. Each LOCAL GOVERNMENT operating the pumps shall be responsible for any liability or claims of liability resulting from the operation of the pumps by such LOCAL GOVERNMENT. 1.8 LOCAL GOVERNMENTS shall be the sole contact with the DISTRICT for the operation of the Stormwater Pumps. It shall be the obligation of the LOCAL GOVERNMENTS to inform the residents of their respective communities of the provisions of this MOU. 1.9 LOCAL GOVERNMENTS shall require their respective staff to review and become familiar with the terms and conditions of the Permit(s), this MOU and the Operating Plan. 1.10 If any other regulatory agency requires changes to the construction or operation of the Stormwater Pumps, LOCAL GOVERNEMNTS shall notify the DISTRICT in writing of the changes prior to implementation so that a determination can be made as to whether or not a modification to the Permit(s) or this MOU or both is required. Changes requiring a modification to the Permit(s) or this MOU or both shall not be implemented until the modification is approved by the DISTRICT. 1.11 This MOU does not obviate the necessity to obtain any required federal, state, local and special district authorizations prior to the commencement of any activity authorized by the Permit(s) or this MOU. This MOU neither creates nor otherwise conveys to LOCAL GOVERNMENTS any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by LOCAL GOVERNMENTS, nor does it convey any rights or privileges other than those specified in the MOU, the Permit(s), and Chapter 40E-4 or Chapter 40E-40, Fla. Admin. Code. DISTRICT RESPONSIBILITIES 1.12 The DISTRICT agrees to install telemetry that will provide operating information on the stormwater pumps referenced herein to the DISTRICT'S West Palm Beach Control Room. Telemetry shall be installed based on available funding. The DISTRICT shall make this telemetry information available electronically on the DISTRICT's website. 1.13 The DISTRICT agrees to provide email and telephone notification to the contacts listed herein of the LOCAL GOVERNMENTS of the expectation of a major storm event. Memorandum of Understanding, 46XXX, Page 4 of 11 6/21/2022 ARTICLE 2 — COMPENSATION/CONSIDERATION 2.1 This MOU defines in general terms the basis on which the Parties to this agreement will cooperate. No funds will be exchanged between the cooperating Parties on the basis of this MOU. 2.2 Expenses. Unless agreed to otherwise in writing, each party bears all of its own costs and expenses in connection with this MOU and the party's obligations under this MOU. ARTICLE 3 - TERM OF THE MOU 3.1 This agreement shall be effective for a period of ten (10) years, beginning on the last date of execution of this agreement. The parties shall have an option to renew this agreement for another ten (10) year period effective upon mutual written consent of all of the parties. At no point should this agreement be extended beyond the expected and/or actual life of the system and/or its critical components. ARTICLE 4 - PROJECT MANAGEMENT/NOTICE 4.1 The Project Manager for the DISTRICT is Armando Vilaboy, at South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406, telephone (305) 513-3420. 4.2 LOCAL GOVERNMENTS shall also provide a copy of all notices to the DISTRICT'S Project Manager. All notices required by this MOU shall be considered delivered upon receipt. Should any party change its mailing address, written notice of such new address shall promptly be sent to the other parties. All correspondence to the DISTRICT under this MOU shall reference the DISTRICT'S Contract Number XXXX. ARTICLE 5 - TERMINATION 5.1 Any party hereto may terminate its respective obligations pursuant to this MOU at any time for convenience by providing written notice of termination to the other parties not less than sixty (60) calendar days prior to the intended date of termination. The performance of work under this MOU may be terminated in accordance with this clause in whole, or from time to time in part, whenever a party hereto determines that such termination is in its best interest. Any such termination shall be affected by delivery of a Notice of Termination to the other parties specifying the extent to which performance of work under the MOU is terminated, and the date upon which such termination becomes effective. 5.2 If any party hereto fails to fulfill its obligations under this MOU in a timely and proper manner, the other parties shall have the right to terminate this MOU by giving written notice of any deficiency. The party in default shall then have ten (10) calendar days from receipt of notice to correct the deficiency. If the defaulting party fails to correct the deficiency within this time, the non -defaulting parties shall have the option to terminate this MOU at the expiration of the ten (10) daytime period. Memorandum of Understanding, 46XXX, Page 5 of 11 6/21/2022 ARTICLE 6 - STANDARDS OF COMPLIANCE 6.1 The parties to this MOU will not discriminate against any person on legally protected bases in any activity under this agreement. 6.2 LOCAL GOVERNMENTS shall allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should the LOCAL GOVERNMENTS assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon the LOCAL GOVERNMENTS. 6.3 LOCAL GOVERNMENTS, its employees, subcontractors or assigns, shall comply with all applicable federal, state, and local laws and regulations relating to the performance of this MOU. The DISTRICT undertakes no duty to ensure such compliance but will attempt to advise the LOCAL GOVERNMENTS upon request, as to any such laws of which it has present knowledge. ARTICLE 7 - RELATIONSHIP BETWEEN THE PARTIES 7.1 The parties to this MOU are independent entities and are not employees or agents of the other parties. Nothing in this MOU shall be interpreted to establish any relationship other than that of independent entities, between the DISTRICT, LOCAL GOVERNMENTS their employees, agents, subcontractors, or assigns, during or after the term of this MOU. 7.2 The parties to this MOU shall not assign, delegate, or otherwise transfer their rights and obligations as set forth in this MOU without the prior written consent of the other parties. Any attempted assignment in violation of this provision shall be void. r ARTICLE 8 — MAINTENANCE OF RECORDS The Parties to this MOU shall maintain records and the other party shall have inspection and audit rights as follows: A. Maintenance of Records: Each party shall maintain all financial and non -financial records and reports directly or indirectly related to this MOU. Such records shall be maintained and made available for inspection for a period of five years from the expiration or termination date of this MOU. B. Examination of Records: Each party or its designated agent shall have the right to examine in accordance with generally accepted governmental auditing standards all records directly or indirectly related to this MOU. Such examination may be made only within five years from the expiration or termination date of this MOU and upon reasonable notice, time and place. C. Extended Availability of Records for Legal Disputes: In the event that the DISTRICT should become involved in a legal dispute with a third party arising from performance under this MOU, the LOCAL GOVERNMENTS shall extend the period of maintenance for all records relating to the MOU until the final disposition of the legal dispute, and all such records shall be made readily available to the DISTRICT. Memorandum of Understanding, 46XXX, Page 6 of 11 6/21/2022 ARTICLE 9 - GENERAL PROVISIONS 9.1 This MOU, together with the Operating Plan, incorporates, embodies and expresses all agreements and understandings regarding the Stormwater Pumps between the DISTRICT and LOCAL GOVERNMENTS and may not be altered except as authorized herein. 9.2 This MOU shall not constitute a waiver of the DISTRICT's regulatory jurisdiction, nor be construed to authorize any activity within the jurisdiction of the DISTRICT except in accordance with the express terms of this MOU, the Permit(s) and the Operating Plan. 9.3 Northing in this MOU, whether expressed or implied, is intended to confer upon any person other than the Parties hereto any rights or remedies under or by reason of this MOU 9.4 There shall be no waiver of any right contained in this MOU unless in writing signed by the party waiving such right. No delay or failure to exercise a right under this MOU shall impair such right or be construed to be a waiver thereof. Any waiver shall be limited to the particular rights so waived and shall not be deemed a continuing waiver of the same right or of any other right under this MOU. 9.5 The invalidity of one or more of the terms or conditions contained in this MOU shall not affect the validity of the remaining portion of the MOU provided that the material purposes of this MOU can be determined and effectuated. In the event of a conflict between the provisions of this MOU and the Permit(s), the provisions of the Permit(s) shall prevail. 9.7. In the event any provisions of this MOU shall conflict, or appear to conflict, the MOU, including all exhibits, attachments and all documents specifically incorporated by reference, shall be interpreted as a whole to resolve any inconsistency. 9.8 Should any term or provision of this MOU be held, to any extent, invalid or unenforceable, as against any person, entity or circumstance during the term hereof, by force of any statute, law, or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this MOU, to the extent that the MOU shall remain operable, enforceable and in full force and effect to the extent permitted by law. 9.9 Notwithstanding any provisions of this MOU to the contrary, the parties shall not be held liable for any failure or delay in the performance of this MOU that arises from fires, floods, strikes, embargoes, acts of the public enemy, unusually severe weather, outbreak of war, restraint of Government, riots, civil commotion, force majeure, act of God, or for any other cause of the same character which is unavoidable through the exercise of due care and beyond the control of the parties. Failure to perform shall be excused during the continuance of such circumstances, but this MOU shall otherwise remain in effect. 9.10 This MOU states the entire understanding and agreement between the parties and supersedes any and all written or oral representations, statements, negotiations, or agreements previously existing between the parties with respect to the subject matter of this MOU. 9.11 The LOCAL GOVERNMENTS recognize that any representations, statements or negotiations made by DISTRICT staff do not suffice to legally bind DISTRICT in a contractual relationship Memorandum of Understanding, 46XXX, Page 7 of 11 6/21/2022 unless they have been reduced to writing and signed by an authorized DISTRICT representative. This MOU shall inure to the benefit of and shall be binding upon the parties, their respective assigns, and successors in interest. 9.12 Any dispute arising under this MOU which cannot be readily resolved shall be submitted jointly to the signatories of this MOU with each party agreeing to seek in good faith to resolve the issue through negotiation or other forms of non -binding alternative disputes resolution mutually acceptable to the parties. A joint decision of the signatories, or their designees, shall be the disposition of such dispute. 9.13 LOCAL GOVERNMENTS assume any and all risks of personal injury, bodily injury and property damage attributable to the negligent acts or omissions which may arise solely as a result of the operation of the Stormwater Pumps by the LOCAL GOVERNMENTS and the officers, employees, servants, and agents thereof. The LOCAL GOVERNMENTS warrants and represents that it is self -funded for Worker's compensation and liability insurance, covering at a minimum bodily injury, personal injury and property damage with protection being applicable to the LOCAL GOVERNMENTS officers, employees, servants and agents while acting within the scope of their employment during performance under this MOU. LOCAL GOVERNMENTS hereby agree to indemnify and hold harmless the DISTRICT to the extent and within the limitations of Section 768.28, Florida Statutes. The LOCAL GOVERNMENTS and the DISTRICT further agree that nothing contained herein shall be construed or interpreted as (1) denying to either party any remedy or defense available to such party under the laws of the State of Florida; (2) the consent of the State of Florida or its agents and agencies to be sued; or (3) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28, Florida Statutes. ARTICLE 10 — APPLICABLE LAW 10.1 Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this MOU and the transactions it contemplates. This waiver applies to an action or legal proceeding, whether sounding in contract, tort or otherwise. 10.2 The laws of the State of Florida shall govern all aspects of this MOU. In the event it is necessary for either party to initiate legal action regarding this MOU, venue shall be in the Fifteenth Judicial Circuit for claims under state law and in the Southern District of Florida for any claims which are justiciable in federal court. Memorandum of Understanding, 46XXX, Page 8 of 11 6/21/2022 IN WITNESS WHEREOF, the parties or their duly authorized representative hereby execute this MOU on the date first written above. SOUTH FLORIDA WATER MANAGEMENT DISTRICT By: Candida Heater, Division Director Administrative Services Division Legal Form Approved SFWMD Office Of Counsel BY: DATE: SFWMD Procurement Approved BY: DATE: Memorandum of Understanding, 46XXX, Page 9 of 11 6/21/2022 Passed and approved by the Board of County Commissioners of Miami -Dade County, Florida, this day of , 2025. ATTEST: MIAMI-DADE COUNTY BY: BY: Name: Name: Title: Title: LEGAL FORM APPROVED: BY: Name: Title: Passed and approved by the City of Commissioners of the City of Miami, Florida, this day of , 2025. ATTEST: CITY OF MIAMI BY: BY: Name: Name: Title: Title: LEGAL FORM APPROVED: BY: Name: Title: Memorandum Of Understanding, , Page 10 of 12 Passed and approved by the City of Commissioners of the City of West Miami, Florida, this day of , 2025. ATTEST: CITY OF WEST MIAMI BY: BY: Name: Name: Title: Title: LEGAL FORM APPROVED: BY: Name: Title: Passed and approved by the City of Commissioners of the City of Sweetwater, Florida, this day of , 2025. ATTEST: CITY OF SWEETWATER BY: BY: Name: Name: Title: Title: LEGAL FORM APPROVED: BY: Name: Title: Memorandum Of Understanding, , Page 11 of 12