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HomeMy Public PortalAbout2004-41 Preapproved Advance Cleanup re_ 530 Crandon BoulevardRESOLUTION NO. 2004-41 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING AGREEMENT FOR PREAPPROVED ADVANCED CLEANUP BETWEEN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF FLORIDA AND THE VILLAGE OF KEY BISCAYNE, FOR SITE REHABILITATION OF PETROLEUM CONTAMINATION ON VILLAGE OWNED PROPERTY LOCATED AT 530 CRANDON BOULEVARD, KEY BISCAYNE, FLORIDA; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Village owned property located at 530 Crandon Boulevard, Key Biscayne, Florida, contaminated with petroleum product (the "Property"), is eligible for state -funded remediation assistance under the Florida Petroleum Liability and Restoration Insurance Program; and WHEREAS, the Preaproved Advanced Cleanup (the "PAC") Program was created to allow eligible sites to receive state funding assistance out of priority score order. WHEREAS, the Property is considered eligible for the PAC Program for the Fiscal Year 2004/2005; and WHEREAS, participation in the PAC Program will expedite the site rehabilitation process at the Property; and WHEREAS, in order to participate in the PAC Program the Village is required to execute a PAC Agreement, attached and incorporated herein, with the Department of Environmental Protection (the "Department") providing that the Village and the Department share the costs of site rehabilitation as specified in the Agreement; and WHEREAS, the Village Council finds that participation in the PAC Program in accordance with the terms and requirements set forth in the PAC Agreement is in the best interest of the Village. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. That the PAC Agreement, in substantially the form attached hereto, is hereby approved and the Village Manager is authorized to execute the Agreement on behalf of the Village. Section 2. That the Village Manager and Village Attorney are authorized to take any and all action necessary to implement the Agreement. Section 3. Effective Date. This Resolution shall be effective immediately upon adoption. PASSED AND ADOPTED this 28th day of September, 2004. 4,19 zietvi 6, MAYOR ROBERT OLDAKOWSKI CONCHITA H. ALVAREZ, CMC, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VILLAGE A TO F:\100\103001\Resolutions\Approving Agreement Re Preapproved Advanced Cleanup with DEP.doc 2 AGREEMENT FOR PREAPPROVED ADVANCED CLEANUP This Agreement is entered into by and between the Florida Department of Environmental Protection (hereinafter "Department"), whose address is 3900 Commonwealth Boulevard, Tallahassee, Florida, and The Village of Key Biscayne (hereinafter "Applicant"),- whose address is 88 West McIntyre Street, Key Biscayne, Florida 33149 (collectively the "Parties") to perform preapproved advanced cleanup of certain contamination which is described in Attachment A of this Agreement at the Village of Key Biscayne (former Anthony Automotive) facility located:at 530 Crandon Boulevard, Key Biscayne, Dade County, FDEP Facility I.D. #138504998. WHERF.A15, in accordance with Section 376.30713, Florida Statutes (F.S.), the Department is authorized to approve an application for preapproved advanced cleanup at eligible ,sites, prior to funding based on the site's priority ranking established pursuant to Section 376.3071(5)(a), F.S.; WHEREAS, in accordance with Section 376.30713, F.S., the Department accepted Applicant's Preapproved Advanced Cleanup application based on the Applicant's representations and covenants .contained therein; WHEREAS, consistent with Sections 3763071(5) and 376.30711,,F.S., and the rules and guidance adopted hereunder, the Department, in consultation with the Applicant and based on the -Limited -Contamination Assessment Report (hereinafter "LCAR"), has conceptually, agreed to the site rehabilitation strategy described in Attachment A,. which the Applicant understands may be'different than the proposed course of action submitted in the application; and WHEREAS, the Applicant and the Department desire to enter into an Agreement to share the costs of site rehabilitation as set forth below in order to effect site rehabilitation pursuant to Sections 376.30711 and 376.30713, F.S., and Chapter 62-770, Florida Administrative Code (F.A.C.). NOW, THEREFORE, in consideration of the mutual benefits to bederived herefrom, and other good and valuable consideration, the Department and the Applicant do hereby agree as follows: GENERAL. 1. The Parties, will -each contract separately with a site rehabilitation contractor (the "Designated Contractor") to effect site rehabilitation. The Applicant agrees to causethe Designated. Contractor to submit.work plans and related documents to the Department requesting approval for the site rehabilitation strategy. The Department will review such 1 proposals promptly in accordance with the internal procedures of the Preapproval Program and, if sufficient funding is available, will issue work orders directly to the Designated Contractor for implementation of the approved site rehabilitation strategy. Each work order is subject to the availability of funding at the time that the work order is fully executed by the Department and Designated Contractor. 2. All activities associated with the performance of this Agreement shall be in confortance-with the provisions of Chapter 376, F.S., and Chapter 62-770, F.A.C. All other terms and conditions; including payments by the Department of its cost share under this Agreement shall be construed in conformance with the provisions of Sections 376.30711 and 376.30713, F.S. The Parties hereto agree that this Agreement shall additionally be subject to the applicable provisions of Section 287.058; F.S, 3. In addition to the limitations set forth in Section 376.30713, F.S., the limitations and provisions governing the Early Detection Incentive Program as set forth in Section 376.3071, F$., the Abandoned Tarik Restoration Program (hereinafter "ATRP") as. set forth in . Section 376:305, F.S.; and -Department rule, and -the Petroleum Liability and Restoration Insurance Program (hereinafter "PLRIP") as set forth in Section 376.3072, F.S., and Department rule, shall continue to apply. The funding caps shall be as ey established under threspective original programs but in no event shall funding from the Inland Protection Trust Fund exceed the funding caps established in.Section 376.30713(4), F.S. Further, the deductible provisions,and}closure reequiretnerits governing the ATRP the PLRIP continue to apply to the contamination which is the subject of •this Agreement, *id -shall not count •towards. the Aiiplieanes OoSt= share commitmentunder this Agr-eement.t Any deductibles due the Depainnent Under the ATRP or PLRIP shall be patdto the Department promptly upon executionof this Agreement and; prior to the issuance of any work order to the Designated Contractor. Any closure requirements 'under the ATRP shall' be fulfilled prior to execution of this Agreement. By entering into this Agreement, the Applicant is bound by the terms of this Agreement, even in the event that the facility's priority score would otherwise entitle the Applicant to proceed with site .rehabilitation under Section 376,30711;14,S., during the term of this Agreement. 4. The Applicant understands that during the course of site rehabilitation, the Depaxtxnent may, based on the statutes, rules and guidance of the Department, revise the site rehabilitation strategy due to technical or cost considerations. Any changes made by the Depattment•to the site rehabilitation strategywhich will not increase the Applicant's'. share of total cleanup costs specified in Paragraphs 6 and 12 may be made unilaterally by - the Department and will not require the Applicant's consent. However, in this event the Applicant may elect, upon the Department's consent, to continue a more costly or aggressive site rehabilitation strategy at the Applicant's sole cost and expense, and the Department's;obligation to cost share under this Agreement shall be suspended:Until such time astheParties can mutually•agree upon the appropriate future site rehabilitation strategy and Costs. Changes proposed bythe Department -to the site rehabilitatioft•strategy 2 which would increase the Applicant's share of total cleanup costs in excess of the amount contemplated in Paragraph 6 will be made only with the Applicant's consent. TERM OF AGREEMENT AND SPENDING LIMITS. 5. This Agreement is effective on the date of execution and shall be in effect for 12 months. The Department reserves the right to renew this Agreement for an additional period of time not to exceed the original term of the Agreement in order to effect site rehabilitation. The Agreement may be terminated earlier upon mutual agreement of the Parties. Additionally, the Department will not renew this Agreement if substantial progress is not made towards site rehabilitation on an annual basis. 6. The maximum amount of funding that may be available under this Agreement is $299,677.34, which represents the Department's estimated cost share (plus an additional reserved amount of 20% of the Department's cost share) of the total costs of site rehabilitation. The Applicant recognizes that the. Department's funding of site rehabilitation costs is ,subject to the availability of funding at the time each work order is fully executed, pursuant to Paragraph 1. The Parties understand that this Agreement shall not result it .the encumbering of State funds upon Agreement execution. The Department and the Applicant: have, estimated, based upon the site rehabilitation strategy and LCAR, total costs under this Agreement by both parties cumulatively for the specified site rehabilitation activities to be $387,180.03 (the "Estimated Cost"). However, the Parties recognizethat glue to unforeseen circumstances which -may exist or occur at the site • duringsite rehabilitation, actual site rehabilitation costs may either exceed orbe:less than this Estimated Cost. In the event that total cumulative costs under this Agreement exceed the Estimated Cost, the Parties agree to cost share, in their respective proportions, any excess site rehabilitation costs up to 20% over the Estimated. Cost. At anytime during this Agreement,..or any fully executed work order, it becomes evident that site . rehabilitation costs will exceed the Estimated Cost by more than 20% or if Department funding is not available, the Parties agree to reevaluate this Agreement, and to suspend site rehabilitation under this Agreement, if necessary, for a terrn not to exceed six months. If the Parties agree to continuesite rehabilitation under this Agreement in their respective cost share amounts, the Department reserves the right to amend this Agreement to increase/decrease the total amount of State funding which may be available under this Agreement, if the Department finds it necessary or desirable to do so. •1 COVENANTS AND REPRESENTATIONS OF THE DEPARTMENT. 7. Based on:the Applicant's cost -sharing commitment to pay 3530% of the total costs -of site rehabilitation as specified by the Applicant.in the Preapproved Advancedd`Cleanup application, the Department's cost share is 6450%. In accordance with Sectiohs-:;' 376.30711 and 376.. 0713,'ES., and Paragraph 1:of this Agreement,,the Department will negotiate work orders with,the Designated Contractor, and will thereby be responsible -to the Designated Contractor solely for the Department's percentage ()fits cost share as specified in theworkorder. 3 8. The Department will review and approve site rehabilitation activities in accordance with the terms of the work orders and Chapter 62-770, F.A.C., and shall make copies of such documents available to the Applicant. The Applicant is further advised and understands that the Department may task a locally contracted county with review of site rehabilitation documents or issuance of work orders under this Agreement. 9. In accordance with Section 287.0582, F.S., the State of Florida's performance and obligationto pay under this Agreement or any executed work order is contingent upon an annual appropriation by the Legislature. The Parties further understand that the execution of a work order is contingent upon the availability of funding at the time of work order execution, COVENANTS AND REPRESENTATIONS OF THE APPLICANT. 10. The Applicant specifically readopts and reaffirms the covenants and representations made in its Application. To the extent that this Agreement does not specifically provide otlierwise, the Application terms and conditions, as well as the representations and covenants -of -the -Applicant contained in the Application are hereby incorporatedby reference. .The Applicant furtherrepresents,that it is a corporation in•good standingin the State of Florida and is:qualified to enter into this Agreement sand is 'ableito fully perform, its duties'under this Agreement. The Applicant acknowledges that the execution of a work°order;by-the Department and Designated Contractor is subject to the=availability.of funding needed to carryout the activities described under the .work order. The -Applicant understands --that this Agreement shall l'not result in the encumbering of State -funds ttpon ' execution of the Agreement. 11. Within 30 days of execution of this Agreement, the Applicant shall submit a Contractor Designation Form to the Department for approval in accordance with Section 376.30711, F.S. 12. The Applicant has made a cost -sharing commitment to pay 35:50% of then tota1 costs of site rehabilitation as specified in the Preapproved Advanced Cleanup application, which is estimated, -based on the site rehabilitation strategy andLCAR, to be' $387,180.03. In order to guarantee and secnre:its performance to the Department under this Agreement, the Applicant shall secure. and maintain during the life of this Agreement an irrevocable Letter of Credit or Financial Guarantee Bond, identifying the Department as the sole beneficiary, in an amount riot less than $164,938:69, which represents the - Applicant's cost share commitment (plus an additional reserved amount of 20% of the Applicant's. cost share). The Applicant may satisfy the requirements of this-Paragraphi with a-,single'Letter of Credit -or -Financial Guarantee .Bond covering all sites.for which it has executed it Reapproved Advanced CleanupAgreement, provided -that`the Letter of Credit or Financial Guarantee -Bond -shad be inran' atnountsuffcient td'cover-the specified site. rehabilitation costs ,of all Such. sites. The Applicant shall establish -a Standby Trust Fund Account as a requirement of this Paragraph. A. copy of the Letter Hof Credit or Financial Guarantee Bond is. attached hereto as Attachment B. A copy of the Standby 4 Trust Fund Account Agreement is attached hereto as Attachment C. The Letter of Credit or Financial Guarantee Bond maintained under this Agreement shall not be for the benefit of any person but the Department. The Applicant, on no more frequently than a quarterly basis, may request the Letter of Credit or Financial Guarantee Bond be reduced to reflect its remaining obligation for site rehabilitation costs as site rehabilitation progresses. Additionally, in the event that the estimated cost of site rehabilitation increases under Paragraph 6 and the Parties agree to continue site rehabilitation under this Agreement, the Applicant agrees to increase the amount of the Letter of Credit or Financial Guarantee Bond accordingly, when requested by the Department. The Letter of Credit or Financial Guarantee Bond and Standby Trust Fund Account agreement shall serve as the financial mechanismsupporting the Applicant's performance to' the Department under this Agreement. 1f the Department establishes, at any time during the term of this Agreement, a material breachin accordance with the terms and conditions of this Agreement, then the Department may: draw down on the Letter of Credit or Financial Guarantee Bond and. activate the Standby Trust Fund Accountagreement, in order to fulfill -the Applicant's commitment and complete site rehabilitation as specified in this Agreement and the site rehabilitation strategy. 13. The Applicant agrees to provide within five days of execution a copy of any and all agreements with any Designated Contractor performing site rehabilitation activities subjeet to this Agreement. The Applicantshall be subject to the prompt payment provisions of Section 215.422, F.S., upon receipt Hof an invoice for its cost share commitment from the Designated Contractor, when such invoice is accompanied by a written approval by the Department of the work completed. Within 40 days of payment to the Designated Contractor, the Applicant shall provide to the Department proofof`such payment, which shall include a copy of the Applicant's paid and canceled check to the Designated Contractor or a certification by the Designated Contractor that the invoice amount specified in the certification was paid and indicating the date such payment was received by the Designated Contractor from the Applicant, In accordance with Section 376.30711,-F.S-., it is unlawful for the Applicant to receive any remuneration, in.cash or in kind,, from the Designated Contractor performing site rehabilitation activities that are subject to this Agreement. The Applicant is further prohibited from entering into any agreement with the Designated Contractor which would have the effect of reducing the Applicant's cost share commitment under this Agreement. 14. The Applicant shall maintain books, records, documents and other evidence pertaining to compensation and payments directly pertinent to performance under this Agreement in accordance with.generally.accepted accounting principles and practices consistently applied. The Department, the State of Florida or their authorized representatives shall have 'access, without cost, except reasonable costs associated with photocopying such records, to such records for audit purposes during the term of this Agreement and for five years following termination of this Agreement. 5 TERMINATION OF AGREEMENT AND REMEDIES FOR BREACH OF AGREEMENT. 15. This Agreement may be terminated for material breach of obligations by either Party. Material breach means substantial failure to comply with the terms and conditions of this Agreement. A Party terminating the Agreement shall give written notice of the breach to the.other Party Within 14 days of discovery of facts giving rise to the breach: Such notice shall'be of sufficient detail so that the Party allegedly in breach can formulate a, remedy. If the.breach is remedied within 15 days of the notice, the Agreement shall remain in effect. If the breachisnotremedied within 15 days of the notice, the Agreement may be terminated within 1.5 ; days of the close of the 15 day remedy period. In the event -that the Department determines, in its _sole discretion, that the Applicant is in breach of this Agreement; the Departrenl reserves.the right, to exercise all remedies at law and equity, including but not limited to; suit_ for specific performance and action to draw on the Letter of Credit or -Financial Otlarantee Bond and activate the Standby TrustFund Account Agreement maintained under this Agreement. In the event that the Department is in breach of this Agreement, then the Applicant reserves the right to exercise all remedies at law. 16. The Department reserves the right to unilaterally cancel this Agreement for refusal by the Applicant.toallow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, F:S., and made or received by the Applicant in conjunction with this Agreement. NOTICES: 17. Any notice: or written communication required or permitted hereunder between the parties shall he considered delivered when posted by Certified- Mail, Return Receipt Requested; or delivered in person to the appropriate Party Representative, as .designated below.. The -Department shall give reasonable notice (antkOt less than any specifically required:underthis Agreement) of its inspection of doce0iitits, conduct of audits, review. of files;; request for information, request for copies or o rwise relating to the eXercise of such rights as referred to in this Agreement. Party kitOsentatives are as ftglOWS: For the Department: Michael E. Ashey, Chief Bureau,of Petroleum Storage Systems Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 02399-2400 Phone (850) 488-3935. For the Applicant: Jacqueline R. Menendez, Manager Village of Key Biscayne 88' West McIntyre Street Key Biscayne, Florida 33149. Phone (305) 365-5500 Each Party shall have the right to change its Representative upon ten days written notice to the other Party. 6 OWNERSHIP OF EQUIPMENT. 18. Upon completion of site rehabilitation, the Parties shall cause an inventory to be performed of any equipment purchased by the Parties as part of the shared costs. The Parties shall then mutually agree upon an appropriate division of such equipment based upon their respective proportionate share of payment of the shared costs. During the term of this Agreement, any equipment purchased by the Parties shall only be used at the site which is the subject of this Agreement or other sites where the Parties have an executed Preapproved Advanced Cleanup Agreement. Equipment or machinery owned solely by a Party or purchased or leased directly by a Party (other than a shared cost) shall remain the property of that Party. AMENDMENTS. 19. Any amendment to this Agreement must be in writing and signed by the Parties. ASSIGNMENT. 20. This Agreement shall not be assigned by either Party without prior written consent of the non -assigning Party. CHOICE OF LAW/FORUM. 21. The Parties hereby agree that any and all actions or disputes arising out of this Agreement shall be governed by the laws of the State of Florida; and any such actions shall be brought in Leon County, Florida. ENTIRE AGREEMENT. 22. It is hereby understood and agreed that this Agreement states the entire agreement and understandings between the Parties, and that the Parties are not bound by any stipulations, representations, agreements or promises, oral or otherwise, not printed in this Agreement. 7 NO ADMISSION OF LIABILITY. 23. This Agreement shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law or fact, a waiver of any right or defense, nor an estoppel against any Party, by the Parties as between themselves or by any other person or entity not a Party. However, nothing in this Paragraph whatever is intended or should be construed to limit, bar or otherwise impede the enforcement of any term or condition of this Agreement against any Party to this Agreement by any Party to this Agreement. FOR THE APPLICANT: FOR THE DEPARTMENT: Title: Date: Name of Corporation: (if applicable) Corporate Seal 8 Title: Date: