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AMENDMENT TO AGREEMENT TO CONSTRUCT A WATER TRANSMISSION MAIN "l. ., -"--..-::-:- :;?,'.... AMENDMENT TO AGREEMENT ~ THIS AMENDMENT ("Amendment") is made and entered into this....d..L day of ~ ' 2005 ("Effective Date") by and between the City of St. Petersburg, Florida ("St. Pete sburg"), a Municipal Corporation of the State of Florida, and the City of Clearwater, Florida ("Clearwater")a Municipal Corporation of the State of Florida. WIT N E SSE T H: WHEREAS, St. Petersburg and Clearwater executed an Agreement on February 25,2003 ("Agreement"), attached hereto and incorporated herein as Exhibit "A" for the replacement and relocation of a portion of St. Petersburg's 36-inch water transmission main located within a Clearwater wetlands restoration project area; and WHEREAS, the Contractor engaged by Clearwater to construct the New Main and demolish and remove the Old Main has been delayed in completing the construction; and WHEREAS, Clearwater has agreed to reimburse St. Petersburg for the additional inspection and administrative costs associated with the delay in relocating the Main; NOW THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, St. Petersburg and Clearwater hereby agree as follows: Paragraph 13 of the Agreement is hereby amended as of the Effective Date of this Amendment: 13. CLEARWATER shall reimburse ST. PETERSBURG an amount not to exceed $85,030 for the costs of staff, plan review, and inspection services of outside consultants hired by ST. PETERSBURG. ST. PETERSBURG shall provide CLEARWATER with copies of all inspection reports of the outside consultants. The reimbursement fund shall be wire transferred to the City of St. Petersburg to Account No. 13EOOOO 466.8803. Any other provision ofthe Agreement as not specifically amended by this Amendment shall remain in full force and effect. [THIS SP ACE INTENTIONALLY LEFT BLANK] Page 1 of 2 \" \ ..~,.", '" -- , IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on the day and year first above written. ATTEST By:h~ Eva Anduj ar City Clerk APPROVED AS TO FORM AND CONTENT: BY:~~ City Attorney (Designee) COUNTERSIGNED ~~~ / /:I/~ ~ank V. Hibbard ~ Mayor APPROVED AS TO FORM : Leslie Dougall-Side Assistant City Atto CITY OF ST. PETERSBURG, FLORIDA R-r3~ By: Rick Baker Mayor CITY OF CLEARWATER, FLORIDA By:d)~~ William B. Home, II City Manager ArrEST: -[ ynthia E. Goudeau ity Clerk ~ -,' ."-' . Page 2 of 2 ~ ~ -~. ... AGREEMENT ~ THIS AGREEMENT MADE and entered mto this a $" day of ~~".~ ' 2002, by and between the CITY OF CLEARWATER (herein "CLEARWATER") the CITY OF ST. PETERSBURG, a Municipal Corporation of the State of Florida (herein "ST. PETERSBURG"). WITNESSETH: WHEREAS, CLEARWATER, owns and is developing that certain property known as the Friendly Village of Kapok, located at 2950 Glen Oak Avenue in Clearwater and more specifically described in Attachment A hereto (herein "the Property"); and WHEREAS, the Property is traversed by a 36-inch water transmission main originally constructed by the Pinellas Water Company, (herein "the Main") and which is presently a part of the . water supply system of ST. PElERSBURG; and WHEREAS, ST. PETERSBURG has existing easements located on the Property for the Main which are described in Attachment B hereto (herein "Old Main Easements"); and WHEREAS, CLEARWATER is desirous of developing the Property for the Kapok Wetland and Floodplain Restoration Project which requires excavation of the site' in the location of the Main; and WHEREAS, CLEARWATER is desirous of relocating the Main on another area on the }>roperty; and "l'> WHEREAS, ST. PETERSBURG is willing to release and quit claim a portion of its Old Main Easements to ClEARWATER provided that a new easement for a replaced water transmission main is granted to ST. PETERSBURG and further provided that the costs for the design, construction, and inspection of the required relocated water transmission main (herein the "New Main") are paid by CLEARWATER, subject to the approval and supervision of ST. PETERSBURG; and WHEREAS, ST. PETERSBURG is willing to issue a work permit to CLEARWATER for the New Main and the removal of the Old Main within ST. PETERSBURG's Old Main Easements, in accordance with the terms of this Agreement and subject to the ST. PETERSBURG's bonding and insurance requirements; NOW THEREFORE, and in consideration of the mutual covenants and agreements herein contained, the parties agree as follows: 1. CLEARWATER shall cause to be prepared a preliminary design drawing showing the proposed location of a new easement for the relocation of a portion of the Main through the 1 Exhibit "A" .~.. ~ Property (New Main Easement) as well as a drawing showing the location of the Old Main Easements (herein "the Drawing") as shown on Attachment C. The Drawing shall be divided into four parcels. Parcell and Parcel 2 shall be that portion of the Old Main Easements which will be included as part of the New Main Easement and upon which the existing Main will not be relocated. Parcel 3 shall be that portion of the Old Main Easements from which a portion of the Main will be removed and which the ST. PETERSBURG will release and convey to CIEARW ATER. Parcel 4 shall be that portion of the New Main Easement to be conveyed by CLEARWATER to the ST. PETERSBURG and upon which a portion of the Main shall be relocated. The Drawing shall identify the approximate location of the centerline of the Main to be relocated in Parcel 4 (herein the "Centerline "). Upon completion of the work as defined in paragraph 5, CLEARWATER shall cause to be prepared a survey including a legal description of a new easement used for the relocation of a portion of the Main through the Property (New Main Easement) as well as a survey for the Old Main Easements (herein "the Survey") as shown on Attachment C. This Survey shall be tied into quarter section lines using NAD 27 datum and shall indicate the actual "as built" conditions and Centerline of the New Main. 2. ST. PETERSBURG shall cause to be prepared the New Main Easement based upon the Survey. The New Main Easement shall be 50 feet in width (20 feet to the west measured at right angles to said Centerline and 30 feet to the east measured at right angles to said Centerline) for the subject New Main. The New Main Easement shall include Parcels 1, 2 and 40f the Survey. The New Main Easement will be in similar form to the easement attached as Attachment D. Such easement shall allow CLEARWATER the right to use the land within the easement so long as such use does not interfere with the rights of the ST. PETERSBURG. 3. CLEARWATER shall cause the New Main Easement to be executed and, escrowed- with the City Attorney of ST. PETERSBURG within ninety (90) days of execution of this Agreement with instructions that the New Main Easement shall be recorded concurrent with the recording of a quit claim deed from the ST. PETERSBURG to CLEARWATER of the existing Old Main Easements as provided in Paragraph 4 below. CLEARWATER will further cause any Mortgages recorded prior to the recording of the New Main Easement to be subordinate to the New Main Easement. ,. 4. ST. PETERSBURG shall cause to be prepared a quit claim deed (herein the "Deed") to the existing ST. PETERSBURG Old Main Easements throughout the property presently titled to CLEARWATER. The Deed shall be executed by the proper officials of ST. PETERSBURG upon approval by the ST. PETERSBURG City. Council. The New Main Easement and the Deed shall be escrowed with the ST. PETERSBURG City Attorney until the construction of the New Main has been completed and accepted by ST. PETERSBURG at which time the ST. PETERSBURG City Attorney will cause such documents to be recorded. Acceptance of the construction of the New Main shall be conditioned upon receipt from the Engineer of a certification of satisfactory completion of construction of the New Main as specified below within the New Main Easement along the Centerline and upon the ST. PETERSBURG's concurrence with the Engineer's certification which concurrence may not be unreasonably withheld. 2 5. CLEARWATER shall retain services of a civil engineer, (herein the "Engineer) registered in the State of Florida and having appropriate professional liability insurance, to prepare the design and specificatiollS for the construction of the New Main. CLEARWATER shall competitively bid the work and retain the services of a Contractor approved by ST. PETERSBURG and meeting the qualifications contained in ST. PETERSBURG's Contract Standards including, but not limited to, bidder qualification and insurance and bonding requirements (herein "Contractor"), for construction. ST. PETERSBURG shall provide the Engineer with all of its performance criteria, requirements, including insurance requirements naming ST. PETERSBURG as an additional insured, . and specifications, if any, (herein "Criteria") for the construction of the New Main. CLEARWATER shall require the Engineer to perform the following affirmative acts: a. Engineer shall stake the centerline of the revised water main alignment within the area of the New Main Easement. b. Based on ST. PEfERSBURG Criteria, the Engineer shall cause to be prepared plans and profiles showing in detail the proposed water line reconstruction together with full details on the proposed connection to the existing water transmission main, and details for the demolition, removal and restoration of the existing transmission main. c. Engineer shall cause to be prepared construction plans, specifications and contract documents. d. Engineer shall cause plans and specifications, and contract documents to be submitted to ST. PETERSBURG for approval at the 50%,90% and 100% developmenC stages. Engineer shall cause the plans, specifications, bid documents and contract documents to be revised in accordance with comments provided by ST. PETERSBURG and its consulting engineer. e. Engineer shall cause the plans and specifications as approved by ST. PETERSBURG to be submitted to the Pinellas County Publie Health Unit, CLEARWATER and any other appropriate agencies for review and approval, and shall complete all permit applications, address all review comments and make changes to plans and specification, and pay all associated application and permit fees. f. Engineer shall coordinate with the Contractor engaged by CLEARWATER to construct the New Main and demolish and remove the Old Main. g. Engineer shall coordinate with the Contractor to review all shop drawings received from suppliers, and to have such shop drawings approved by the representative designated by ST. PETERSBURG prior to the return to the Contractor. If ST. PETERSBURG does not respond to any submittal of shop drawings or other matter for which ST. PETERSBURG approval is requested within ten (10) business days of receipt, 3 1, " such submitted matters shall be deemed approved. However, such approval shall not relieve the Contractor of responsibility to comply with the contract specifications or relieve the Engineer of responsibility to ensure compliance with the contract specifications. h. Engineer shall cause such construction stakes or marking, by the contractor, as are required for the construction of the New Main to be set and inspected by the ST. PETERSBURG prior to the Contractor commencing construction. i. Engineer shall provide contract management, limited inspection, and administrative services of the work on a daily basis during the course of construction, and shall report any work which does not conform to the plans and specifications of ST. PETERSBURG. j. Upon completion of construction of the New Main, but prior to its connection to the Main, the Engineer shall submit to the ST. PETERSBURG an as built plan showing the constructed line and grade of the New Main. k. Engineer shall observe the buIkheading, disinfection and testing of the New Main and upon acceptance by ST. PETERSBURG, in writing, and upon approval of the Pinellas County Health Unit, Engineer shall provide ten (10) days notice, in writing, that the New Main is ready for connection to the Main and shall request authorization from ST. PETERSBURG to connect the New Main to the Main. Upon receipt of written authorization frOIl').. ST. PETERSBURG, the connection may be made. ST. PETERSBURG shall provide either written authorization to proceed with the connection or shall object to the connection within ten (10) business days of receipt of Engineer's request. The Engineer shall supervise- said connection and issue a certificate of substantial completion in a form as specified by the ST. PETERSBURG that the work outlined herein has been completed in accordance with the plans and specifications set forth. Engineer shall prepare a punch list incorporating the comments of ST. PETERSBURG's engineering consultant and shall conduct a final inspection of the New Main. If the Engineer provides ST. PETERSBURG with a certification of final completion and the ST. PETERSBURG does not object to such certification within ten (10) business days of receipt of that certification, the work shall be deemed accepted. 6. CLEARWATER and the Engineer shall schedule the connection of the New Main to the Main subject to the following restrictions: a. The shut down period for making connections shall be limited to 48 hours and the Contractor shall be required to work continuously until the transmission main is back in service. b. The shut down period will not be permitted to coincide with the normally high water demand period extending from April 1st to June 15th. 4 t;. 7. Upon written authorization from ST. PETERSBURG that the work envisioned by this contract has been accepted, the Engineer shall issue orders to the Contractor to remove the portion of the Main no longer in senice. 8. The City will issue a permit to CLEARWWATER authorizing the site workin the area of the Old Main Easement five (5) days after the completion and acceptance of the work and the recording of the Deed and New Main Easement, subject to reasonable terms and conditions of the permit. 9. All buildings and structures constructed within close proximity of the easement shall be free standing with an independent foundation unaffected by excavation in the easement to a depth of at least 10 feet. 10. ST. PETERSBURG hereby agrees to promptly take any action necessary to act upon requests for approval outlined in this Agreement. ST. PETERSBURG agrees that approval or rejection of requests made upon them shall be made in writing within ten (10) business days of receipt of the request, unless otherwise specified in this Agreement. 11. ClEARWATER agrees to prohibit the planting of deep rooted trees within the New Main Easement. All existing deep rooted trees lying on or in close proximity to the New Main Easement shall be removed without any damage to the transmission main and related facilities after a mutual inspection by representatives of CLEARWATER and ST. PETERSBURG identifying such trees. 12. All costs associated with the work, relocation, reconstruction, including the surveying, engineering, materials, inspection and construction shall be borne by CLEARWATER. ClEARWATER shall require the Contractor to provide a dual obligation payment and performance bond which names both CLEARWATER and ST. PETERSBURG as obligees or beneficiaries of the bond. ~ 13. ClEARWATER shall reimburse ST. PETERSBURG an amount not to exceed $70,030 for the costs of staff, plan review, and inspection services of outside consultants hired by ST. PETERSBURG. ST. PETERSBURG shall provide CLEARWATER with copies of all inspection reports of the outside consultants. The reimbursement funds shall be wire transferred to the City of St. Petersburg to Account No. 403 13EOOOO 466.8803. 14. The CITY OF ClEARWATER shall require the successful contractor to: a. Indemnify, hold harmless, pay on behalf of, and defend the CITY OF ClEARWATER and its agents and employees and the CITY OF ST. PETERSBURG and its agents and employees from and against all claims, damages, losses and expenses, including, but not limited to, attorneys' fees, arising out of or resulting from the performance of the 5 . Project or the Utility Work; b. Provide a dual obligee performance bond in the full amount of the Project, naming the CITY OF CLEARW AlER and the CITY OF ST. PETERSBURG as obligees; and c. Provide insurance coverage with the CITY OF CLEARW AlER and the CITY OF ST. PETERSBURG named as additional insured entities and certificate holders in the sum of $2,000,000 per occurrence and $2,000,000 in the aggregate. Nothing herein is intended to serve as a waiver of sovereign immunity by either party. Nothing herein shall be constructed as consent by either party to be sued by third parties in any manner rising out of this Agreement. Any provision of this Agreement to the contrary notwithstanding, the total liability of CLEARWATER to ST. PETERSBURG shall not, under any circumstances or for any reason, exceed those statutory sums set forth in Section 768.28, Florida Statutes. 15. CLEARW AlER'S obligation to defend or pay for the defense of ST. PElERSBURG shall be triggered by ST. PETERSBURG'S notice of claim to CLEARWATER. 'CLEARWATER . shall undertake the defense of any such claim within seven (7) days after such notice by ST. PETERSBURG is given to ClEARWATER by registered or certified mail. CLEARWATER shall continue to defend or pay for defense of such claim until the parties mutually agree to liability as between ST. PETERSBURG AND CLEARWATER, or until there is a non-appealable court determination of such liability as between ST. PETERSBURG AND CIEARW ATER. The parties mutually agree that the decision of whether CLEARWATER defends a claim against ST. PETERSBURG with in-house counselor outside counsel is solely the decision of CLEARWATER. If CLEARWATER undertakes defense of any claim against ST. PETERSBURG, any investigation fees, attorney fees, and defense costs incurred by ST. PETERSBURG shall be the sole expense of ST. PETERSBURG with no reimbursement to be made by CLEARW AlER. 16. Upon completion and acceptance of the work, CLEARW AlER shall formally assign all of its warranties, both express and implied, and contractual rights from the Contractor, subcontractors, suppliers and Engineers relating to the design and construction of the work to ST. PETERSBURG. 17. Subsequent to the completion and acceptance of the work and the recording of the New Main Easement, CLEARWATER shall have no further responsibility regarding the work or the New Main and its agents, employees and representatives shall be released by the ST. PElERSBURG for any claims relating to the design, construction and relocation of the New Main and any consequential or incidental damages relating to the use or operation of the New Main. 18. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto. If any conditions of this Agreement are not complied with by any party, the party injured must seek remedy by due process of law, and the defaulting party agrees to pay all costs, fees and reasonable attorneys fees incurred by the party injured pursuant to remedying said default. 6 -.. 19. In the event that any portion of this Agreement (including any provision or part thereof) shall be held to be invalid for any reason, such invalidity shall not affect the remainder of this Agreement and the same shall remain in full force and effect. 7 .. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ATTEST CITY OF ST. PETERSBURG, FLORIDA BY:~~ Eva Andujar City Clerk By: Rick Baker Mayor APPROVED AS TO FORM AND CONTENT:.,.;~. .r:a. I Michael J. Connors, Director Engineering, Stonnwater & Transportation .~ :~ '--"'- -, By: ~ ~,.,.J..tCity rney for the City if St. Petersburg, Florida .-,,_0- ..~ APPROVED AS TO FORM: ATTEST: 8