R97-150RESOLUTION NO. R97-/~"~
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
AND DIRECTING THE MAYOR AND CITY'CLERK TO
EXECUTE AN INTERLOCAL AGREEMENT BETWEEN
THE CITY OF BOYNTON BEACH AND NORTHERN
PALM BEACH COUNTY IMPROVEMENT DISTRICT
(NPDES); AND'PROVIDING AN EFFECTIVE DATE.
WHEREAS, the United States Environmental Protection Agency on the 9th
day of December, 1996, issued its National Pollutant Discharge Elimination System
(NPDES) Permit No. FLS000018 to forty (40) governmental entitled designated as
the Palm Beach County-Municipal Separate Storm Sewer System Permittees; and
WHEREAS, the NPDES Permit contains certain separate obligations and
responsibilities on the part of each individual Permittee, as well as some obligations
and responsibilities that may be performed jointly by all of the Permittees; and
WHEREAS, due to the number of Permittees and the tasks that must' be
performed under the NPDES' Permit, it
administratively feasible to allocate duties,
would be m0~t economically and
responsibilities, and costs associated
therewith under the terms of this Agreement; and
WHEREAS, the City Commission, upon recommendation of staff, deems it to
be in the best interests of the citizens and residents of the City of Boynton Beach to
enter into this Interlocal Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The Mayor and City Clerk are hereby authorized and directed to
execute an Interlocal Agreement between the City of Boynton Beach, Florida and
Northern Palm Beach County Improvement District, which agreement is attached
hereto as Exhibit "A".
Section2. This Resolution shall become effective immediately
passage.
PASSED AND ADOPTED this ,/~/ day of September, 1997.
CITY Of FLORIDA
Mayor
Vice
Commission~
ATTEST:
lerk
.x,{G\\~3[ h hill/l/~~.
s:ca~R~2gmem~l~NPD~tedo~l
C( ~sJoner
Commissioner
upon
NPDES
INTERLOCAL AGREEMENT
This Agreement shall be effective as of the ~ day of ., 1997 ("the Effective
Date"), and is being entered into by and between NORTHERN PALM BEACH COUNTY
IMPROVEMENT DISTRICT, 357 Hiatt Drive, Palm Beach Gardens, Florida 33418, (hereinafter
referred to as "the Lead Permittee") and CITY OF BOYNTON BEACH (hereinafter referred to as
"the Co-Permittee").
WITNESSETH:
WHEREAS, the United States Environmental Protection Agency (hereinafter referred to as
"EPA") on the 9th day of December, 1996, issued its National Pollutant Discharge Elimination
System ("NPDES") Permit No. FLS000018 (hereinafter referred to as the "NPDES Permit") to forty
(40) governmental entities designated as the Palm Beach County-Municipal Separate Storm Sewer
System Permittees (hereinafter referred to as "the Permittees"); and
WHEREAS, the NPDES Permit contains certain separate obligations and responsibilities on
the part of each individual Permittee, as well as some obligations and responsibilities that may be
performed jointly by all of the Permittees; and
WHEREAS, due to the number of Permittees and the tasks that must be performed under the
NPDES Permit, it would be most economically and administratively feasible to allocate duties,
responsibilities, and costs associated therewith under the terms of this Agreement; and
WHEREAS, the parties hereto are authorized pursuant to Chapter 163, Part 1 of Florida
Statutes, to enter into this Interlocal Agreement and do hereby wish to adopt, ratify and confirm the
provisions and incorporation herein of Subparagraph (9) of Section 163.01, Florida Statutes.
NOW, THEREFORE, in accordance with Chapter 163, Part I, Florida Statutes, the
undersigned parties, for and in consideration of the mutual benefits set forth herein, do hereby enter-.-.
into this Interlocal Agreement and represent, covenant, and agree with each other as follows:
--~
SECTION ONE
REPRESENTATIONS
1.01. Recitals. The recitals and representations as set forth hereinabove are tree and correct
to the best of the knowledge of the parties and are incorporated herein by this reference.
SECTION TWO
DESIGNATION OF PARTIES
2.01. Lead Permittee. Northern Palm Beach County Improvement District is hereby
designated as the Lead Permittee for the purposes of this Agreement and the NPDES Permit.
2.02. Co-Permittee. City of Boynton Beach is hereby designated as a Co-Permittee for the
purposes of this Agreement and the NPDES Permit.
SECTION THREE
NPDES PERMIT
3.01. Term of Permit. The NPDES Permit has an effective date of February 1, 1997 (the
"NPDES Permit Effective Date") and expiration date of December 31,2001 (the "NPDES Permit
Expiration Date").
3.02. Annual Reports. The NPDES Permit requires that certain reports be submitted to
EPA on an annual basis commencing September I, 1998 and on each September 1 st thereafter
through and including the year 2002.
SECTION FOUR
TERM OF AGREEMENT
4.01. Term. The anticipated term of this Agreement shall be from the Agreement's
Effective Date through September 30, 2002, but subject to an annual Fiscal Year (as hereinafter
defined) renewal process pursuant to the following Section 4.03, unless otherwise terminated in
accordance wi~ other provisions of this Agreement.
4.02. Funding Year. The term "Fiscal Year" is defined for the purposes of this Agreement
as the following fiscal year periods, namely:
(i) First Fiscal Year - from October 1, 1997 through September 30, 1998.
(ii) Second Fiscal Year - from October 1, 1998 through September 30, 1999.
(iii) Third Fiscal Year - from October 1, 1999 through September 30, 2000.
(iv) Fourth Fiscal Year - from October 1, 2000 through September 30, 2001.
(v) Fifth Fiscal Year - from October 1, 2001 through September 30, 2002.
4.03. Renewal. This Agreement shall be automatically renewed as of the beginning date
of each Fiscal Year, unless a party to this Agreement provides written notice of non-renewal to the
other patty at least thirty (30) days prior to the end of the prior Fiscal Year, or unless the Agreement
has been previously terminated as provided herein.
SECTION FIVE
SCOPE OF WORK AND ALLOCATION OF
DUTIES AND OBLIGATIONS
5.01. Scope of Work
The Scope of Work contemplated under this Agreement is applicable to the
implementation and execution of the NPDES Permit, which Permit is incorporated herein, and is
generally described as follows:
(i) The timely preparation, coordination, and execution of all interlocal
agreements necessary to carry out the terms of the NPDES Permit.
annual reports.
(ii) The timely preparation, coordination, and submittal to EPA of all system-wide
(iii) The timely implementation, coordination, and execution of all monitoring
required by the NPDES Permit.
(iv) The timely preparation, coordination, and submittal to EPA of all watershed
pollutant load estimates.
~(v) The timely development, implementation, and execution of all system-wide
public education programs required by the NPDES Permit.
(vi) The timely development, implementation, and execution of all storm water
management programs required by the NPDES Permit.
(vii) The timely preparation, coordination, and distribution of standardized forms
necessary to carry out the terms of the NPDES Permit.
(viii) The timely and adequate performance of any other task required by the
NPDES permit.
5.02. Allocation of Duties and Obligations
(i) The Lead Permittee shall be responsible for those duties and obligatioff~ which
are specifically identified and delineated in Exhibit "A" which is attached hereto and incorporated
herein (the "Lead Permittee Services"). ,
(ii) The Co-Permittee shall be responsible for such other duties and obligations
as are identified as being its individual responsibility in the NPDES Permit.
5.03. Modifications to NPDES Permit
It is understood and agreed that any changes, modifications, revisions, or additions
to the terms of the NPDES Permit made subsequent to the Effective Date of this Agreement,
including but not limited to any requirements to perform biological assessments, are expressly
excluded from and not a subject of this Agreement.
SECTION SIX
FUNDING AND ALLOCATION OF COSTS AND EXPENSES
6.01. Annual Bu__B_u_.d_g.eZ In that this Agreement is anticipated to be renewed for a number of
Fiscal Years, the parties acknowledge that it is difficult to project the potential costs the Lead
Permittee may be required to incur in future Fiscal Years in order to carry out the Lead Permittee
Services.
Due to the above, the parties agree that it is in their mutual best interests to arrive at
a payment amount on an annual advance Fiscal Year basis in order to more reasonably calculate the
amount that will be required to be paid by the Co-Permittee to the Lead Permittee for the provision
of Lead Permittee Services.
6.02. Prior~. The parties agree that any surplus funds previously paid by the Co-
Permittee pursuant to any prior Interlocal Agreement it has entered into with the Lead Permittee that
relates to the NPDES Permit application process, shall be applied to and used for the provision of
Lead Permitte& Services by the Lead Permittee during the First Fiscal Year.
6.03. First Fiscal Year Payment. In addition to the funds referenced in above Section 6.02,
the parties agree that for the First Fiscal Year, the Co-Permittee shall also pay to the Lead Permittee
the sum ~f $17,270.00, which sum represents the combined payment of the Lead Permittee's
Services during the Second Fiscal Year term of this Agreement and the Section 6.04 ten percent
(10%) Reserve Fund Contingency.
6.04. Reserve Contingency. The parties acknowledge that each Fiscal Year payment
required to be paid by the Co-Permittee to the Lead Permittee for the provision of the Lead Permittee
Services will include a reserve fund contingency (the "Reserve Fund Contingency") for unexpected
additional costs and expenses. The Reserve Fund Contingency amount shall be equal to ten percent
(10%) of each Fiscal Year's payment amount.
6.05. Current Funding. The parties acknowledge that the aforementioned funding will be
sufficient to satisfy the current NPDES Permit requirements for the First and Second. Fiscal Years
unless unexpected additional costs and expenses of the nature described in following' Section 7.03
4
are incur?ed.
6.06. Ehlglrtf_qllfli~. As to future Fiscal Year payments that will be required to be paid
by the Co-Permittee to the Lead Permittee, the parties agree that on or before March 1, 1998 the
Lead Permittee shall provide a cost estimate to the Co-Permittee of the amount the Co-Permittees
will be requested to pay during the Second Fiscal Year, with all subsequent Fiscal Year estimates
to be sent on or before March 1st of each following Fiscal Year. The Lead Permittee and Co-
Permittee shall then have until sixty (60) days before the beginning of the next Fiscal Year to agree
in writing upon a mutually acceptable dollar amount to be paid by the Co-Permittee to the Lead
Permittee for the applicable Fiscal Year, all of which shall be paid pursuant to Section Seven of this
Agreement. If, however, the parties cannot agree upon a mutually acceptable dollar amount by the
aforementioned deadline, then in that event this Agreement shall be deemed terminated unless
otherwise agreed to in writing by and between the parties.
6.07. Fifth Fiscal Year. It is assumed that during the Fifth Fiscal Year, the Co-
Permittees and EPA will commence to negotiate or renegotiate the terms of the NPDES Permit. As
a result, allocation of the Scope of Services that are required to be provided hereunder will likely be
modified. Due to this uncertainty, the allocation of each parties duties and obligations hereunder,
together with the funding process for provision of services, will be reexamined during the Fifth
Fiscal Year of this Agreement.
6.08. Separate Co-Permittee Expenses. Except for such amounts as are required
to be paid by the Co-Permittee to the Lead Permittee pursuant to above Sections 6.02 through 6.07,
the Co-Permittee shall be responsible for all other costs and expenses relating to its individual duties
and obligations under the NPDES Permit, including but not limited to: (1) all costs of the Co-
Permittee's preparation and submittal of such of its own individual Annual Report(s) that may be
separately required by the NPDES Permit, (2) costs of all monitoring that may be the Co-Permittee's
individual responsibility, (3) costs of gathering, compiling, coordinating, and submitting all
necessary data that may be individually required of the Co-Permittee by the NPDES Permit, and (4)
all other costs of carrying out any other individual responsibility of the Co-Permittee according to
the terms fir the NPDES Permit.
SECTION SEVEN
PAYMENT PROCEDURE
The Co-Permittee agrees to pay its annual Fiscal Year payments as follows:
7.01. First Fiscal Year. The First Fiscal Year payment amount specified in above Section .--
6.03 may, at the option of the Co-Permittee, be paid in either a single lump sum payment on or"
before October 1, 1997, or in twelve (12) equal monthly installments commencing on O/('ober 1,
1997, and thereafter on the 1st day of each subsequent month of the First Fiscal Year (said payment
dates being hereinafter referred to as the "Payment Due Date").
7.02. Subsequent Fiscal Year Payments. Once a subsequent Fiscal Year payment amount
has been agreed to in writing by and between the. Lead Permittee and the Co-Permittee, the Co-
Permittee may, at its option, either pay the entire agreed-upon amount in either a single lump sum
on or before October 1st of that particular Fiscal Year, or in twelve (12) equal monthly installments
commencing on October 1st of that Fiscal Year and thereafter on the 1st day of each subsequent
month of that Fiscal Year (said payment dates also being hereinafter referred to as the "Payment Due
Date").
7.03. Additional Costs. Since it is possible that following the parties' finalization of an
agreed upon Fiscal Year payment amount, unexpected additional costs and expenses may arise
which will need to be paid in order for the Lead Permittee to carry out its Lead Permittee Services
for that Fiscal Year, and in order to address same, the parties agree as follows:
(i) In order to ameliorate the possibility of unexpected additional costs and
expenses resulting from the theft, loss, or destruction of equipment required for provision of the Lead
Permittee Services, the parties agree that the Lead Permittee is authorized to include as a portion of
the cost of providing its Lead Permittee Services, funding for the acquisition of loss, theft, and
property damage insurance for said equipment.
(ii) If the Lead Permittee determines that unexpected additional costs and
expenses must be incurred in order for it to timely provide its Lead Permittee Services, then in that
event, the Lead Permittee shall promptly notify the Co-Permittee, in writing, of the nature and
estimated amount of the Co-Permittee's allocable share of these unexpected additional costs and
expenses, as well as the Lead Permittee's intent to draw down funds from the Co-Permittee's
Reserve Fund Contingency in order to pay said Co-Permittee's allocable share of the unfunded and
unexpected additional costs and expenses.
(iii) Further, if the Co-Permittee's allocable share of the unexpected additional
costs and expenses exceeds the amount held in the Co-Permittee's Reserve Fund Contingency
account, the Lead Permittee shall include in the aforementioned notice to the Co-Permittee said
excess arr~unt. The Lead Permittee and Co-Permittee shall then attempt to negotiate the payment
procedure for said unfunded and unexpected additional costs and expenses.
(iv) If the Lead Permittee and Co-Permittee are able to agree as to the need and
amount of the unfunded and unexpected additional costs and expenses, said agreement shall be
reduced to writing and executed with the same formalities of this Agreement. The agreed upon
unfunded and unexpected additional costs and expenses shall be divided by the remaining months
of that particular Fiscal Year and paid to the Lead Permittee at the same time as the remaining
regular Fiscal Year payments pursuant to preceding Section 7.02.
(v) If the Lead Permittee and Co-Permittee are unable to agree as to the need
and/or amount of the unfunded and unexpected additional costs and expenses then in t~at event the
Lead Permittee may suspend or terminate this Agreement, at its sole discretion, following the
6
provisio~t of thirty (30) days prior written notice to the Co-Permittee.
7.04. Failure to Pay. Unless otherwise agreed to in writing by and between the parties
hereto, if a Fiscal Year payment or agreed upon unfunded and unexpected additional costs and
expenses payment is not timely paid within thirty (30) days of a Payment Due Date, then in that
event the duties and obligations assumed by the Lead Permittee under the terms of this Agreement
may be suspended and/or terminated by the Lead Permittee, at its sole discretion, following the
provision of thirty (30) days prior written notice to the Co-Permittee unless remedied by the Co-
Permittee within said thirty (30) day notice time period.
SECTION EIGHT
OPTION TO TERMINATE
8.01. Termination. Either party to this Agreement shall have the right to terminate this
Agreement, provided, however, that the party wishing to terminate the Agreement must provide
thirty (30) days prior written notice to the other party of said terminating party's decision to
terminate this Agreement. Said termination shall not be effective until said thirty (30) days have
elapsed.
8.02. Costs and Expenses. Irrespective of which party elects to terminate this Agreement
under one of the optional termination provisions of this Agreement or in the event ora failure to pay
by the Co-Permittee to the Lead Permittee the amounts due under and pursuant to the terms of this
Agreement, the parties agree that any costs and expenses previously incurred or obligated to be paid
by the Lead Permittee as of the date of its issuance or receipt of a notice of termination shall still be
due and owing and the right to collect said amount(s) shall survive the termination of this
Agreement.
8.03. Refunds. The parties acknowledge that the Lead Permittee anticipates entering into
annual agreements, on a Fiscal Year basis, with one or more consultants or contractors for the
provision qtf certain services required in order for the Lead Permittee to provide its Lead Permittee
Services on behalf of all Co-Permittees. In that the Co-Permittee's payments under this Agreement
represent only a portion of what the Lead Permittee will have to pay its consultants and contractors
for their services, it is unlikely that if this Agreement is terminated for any reason, that the Co-
Permittee will be entitled to receive a refund from the Lead Permittee for any monies the Co-
Permittee has previously paid pursuant to this Agreement. However, to the extent the Lead
Permittee is able to obtain a reduction in its contractual obligations with its consultants or contractors
as a result of the termination of this Agreement, then in that event, the Lead Permittee shall be
obligated to reimburse the Co-Permittee for the amount of such a reduction in costs and expenses.
8.04. Documentation and Data. In the event this Agreement is cancelled or terminated, all
documentation and data previously collected by the Lead Permittee in accordance with)ts duties and
obligations as assumed herein, shall be made available to the Co-Permittee, provided, however, that
7
said C6-Permittee shall be responsible for any costs incurred in making available such
documentation.
SECTION NINE
ENFORCEMENT. VIOLATIONS. AND/OR DEFAULT
9.01. Enforcement. The designation of one of the parties under this Agreement as the Lead
Permittee is not intended nor shall it be construed as authorizing, granting or permitting the Lead
Permittee to accept or assume any powers of enforcement of the NPDES Permit as to the other party.
9.02. Violations. Neither party to this Agreement shall be deemed to have assumed any
liability for any negligent or wrongful acts or omissions of the other party, and in no event shall any
of the provisions of this Agreement be construed as a waiver by either party of the liability limits
established in Section 768.28, Florida Statutes.
9.03. Costs and Attorney's Fees. In the event of any litigation or administrative proceeding
to settle issues arising hereunder, the prevailing party shall be entitled to recover against the other
party its costs and expenses, including reasonable attorney's fees, which shall include but not be
limited to any fees and costs for any appeal that may be taken.
SECTION TEN
MISCELLANEOUS PROVISIONS
10.01. Notices. All notices, requests, consents and other communications required or
permitted under this Agreement shall be in writing (including telex, facsimile or telegraphic
communicatio¢) and shall be (as elected by the person giving such notice) hand delivered by prepaid
express overnight courier or messenger service, telecommunicated, or mailed (airmail if
international) by registered or certified mail (postage prepaid), return receipt requested, to the
following addresses:
As to Lea~l Permittee:
Northem Palm Beach County Improvement District
357 Hiatt Drive
Palm Beach Gardens, Florida 33418
Attn: Executive Director
Phone (561) 624-7830
Fax (561) 624-7839
With a copy to:
Caldwell & Pacetti
324 Royal Palm Way, Suite 300
Palm Beach, Florida 33480
Attn: Kenneth W. Edwards, Esq.
Phone: (561) 655-0620
Fax: (561) 655-3775
OCT-lB-2002 12:20 NORTHERN PBC IMPROUEMENT P.02
IN WITNESS WHEREOF, the parties have set their hand and seals the day and year
hereinafter written.
EXECUTED by Lead Permittee this ~day of ~~i~t~_A~.~
,1997.
ATTEST:
Peter L. Pimcntel, Secretary
(SEAL)
BOARD OF SUPERVISORS, NORTHERN PALM
BEACH COUNTY IMPROVEMENT DISTRICT
Willimn L. Kemlake, President
EXECUTED by Co-Permitt¢¢ this
day of
,1997.
ATTEST:
CITY OF BOYNTON BEACH
(S E A L)
By:
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
11
TOTAL P.02
C
As to C6-Permittee:
With a copy to:
City of Boynton Beach/utilities Department
5469 W. Boynton Beach Boulevard
Street Address
Boynton Beach, FL
City
Attn: John A. Guidry,
Phone: (561) 375-6452
Fax: (561) 731-0065
33437
Zip
Utilities Director
Mark G. Law, Deputy Utilities Director
Name
5469 W. Boynton Beach Boulevard
StreetAaaress
Boynton Beach~ FL
Attn:
Phone: (561) 375-6403
Fax: (561) 375-6298
33437
Zip
10.02. Entire Agreement. This Agreement represents the entire understanding and
agreement between the parties with respect to the subject matter hereof.
parties
parties
10.03. Construction. The preparation of this Agreement is considered a joint effort of the
and accordingly this Agreement shall not be construed more severely against one of the
than the other.
10.04.-Discrimination. The Lead Permittee and the Co-Permittee agree that no person shall
on the grounds of race, color, sex, national origin, disability, religion, ancestry, marital status or
sexual orientation be excluded from the benefits of or be subjected to any form of discrimination
under any activity carried out by the performance of this Agreement.
10'.~05. Binding Effect. All of the terms and provisions of this Agreement, whether so
expressed or not, shall be binding upon, inure to the benefit of, and be enforceable by the parties and
their respective legal representatives, successors, and permitted assigns.
10.06. Assignabili .ty. The responsibility for carrying out any task assumed by any party to
this Agreement, but not the obligation to pay the amounts required to be paid as hereinabove set
forth, may be assigned by any party to this Agreement upon receipt of written approval by the other
party, which shall not be unreasonably withheld.
10.07. Severability. If any part of this Agreement is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted
to the extent so contrary, prohibited or invalid, but the remainder hereof shall not 1Se invalidated
thereby find shall be given full force and effect so far as possible, unless the prohibited or invalid
provision reduces.the payment obligations-of the Co-Permittee, in which event this Agreement may
'be thereupon terminated by the Lead Permittee.
10.08. Governing Law and Venue. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance with, the internal
laws of the State of Florida without regard to any contrary conflicts of laws principle. Venue of all
proceedings in connection herewith shall be exclusively in Palm Beach County, Florida, and each
party hereby waives whatever their respective rights may have been in the selection of venue.
10.09. Time of the Essence. Time is of the essence with respect to this Agreement.
10.10. Headings. The headings contained in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect in any way the meaning or interpretation of
this Agreement.
10.11. Remedies. The failure of any party to insist on a strict performance of any of the
terms and conditions hereof shall be deemed a waiver of the rights or remedies that the party may
have regarding that specific instance only, and shall not be deemed a waiver of any subsequent
breach or default in any terms and conditions.
10.12. NPDES Permit. If there is any inconsistency between the terms of this Agreement
and the NPDES Permit, then the NPDES Permit shall preempt, supersede, and control over the
provisions of this Agreement.
10.13...Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
10.14. Clerk of Court. A copy of this Agreement shall be filed with the Clerk of the Court
in and for ~.alm Beach County, Florida.
10.15. Effective Date. This Agreement shall be effective as of the last date that it is signed
by all parties hereto.
10.16. Termination of Prior Agreements. All previous interlocal agreements entered into
between the parties to this Agreement regarding the application or execution of the NPDES Permit
shall terminate as of the Effective Date of this Agreement.
10
IN WITNESS WHEREOF, the parties have set their hand and seals the day and year
hereinafter written.
EXECUTED by Lead Permittee this
day of ,1997.
ATTEST:
BOARD OF SUPERVISORS, NORTHERN PALM
BEACH COUNTY IMPROVEMENT DISTRICT
By: By:
Peter L. Pimentel, Secretary
William L. Kerslake, President
(SEAL)
EXECUTED by Co-Permittee this
day of
,1997.
ATTEST:
CITY OF BOYNTON BEACH
By:
By:
(S E A L)
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
By:
I1