AGREEMENT FOR STORMWATER IMPROVEMENTS - FLOOD PROTECTION - CLEARWATER COASTAL ZONE 1 NEAR JEFFORDS STREET - N270AGREEMENT NO. 11C00000010 -A
AGREEMENT
BETWEEN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
AND
CITY OF CLEARWATER
FOR
STORMWATER IMPROVEMENTS — FLOOD PROTECTION — CLEARWATER
COASTAL ZONE 1 NEAR JEFFORDS STREET (N270)
This AGREEMENT, effective as of the 31st day of December 2013, by and between the
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation of the
State of Florida, whose address is 2379 Broad Street, Brooksville, Florida 34604 -6899,
hereinafter referred to as the "DISTRICT," and CITY OF CLEARWATER, a municipal
corporation of the State of Florida, whose address is 112 Osceola Avenue, Clearwater,
Florida 33756, hereinafter referred to as the "CITY."
WITNESSETH:
WHEREAS, the DISTRICT and the CITY entered into an Agreement effective October 27,
2011, for relocating the CITY'S local stormwater conveyance system along Lotus Path, South
Druid Road and Jeffords Street into the CITY'S right of way and improving water quality by
utilizing a hydrodynamic separator stormwater treatment structure (Agreement No.
11 C00000010), which expired on December 31, 2013; and
WHEREAS, the parties hereto wish to enter into a new Agreement, incorporating the terms
and conditions of the expired Agreement No. 11 C00000010, and replace certain terms and
conditions of the expired agreement with new terms and conditions.
NOW THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties hereby mutually agree as follows:
1. Except as otherwise provided herein, the terms, covenants and conditions of Agreement
No. 11C00000010 are incorporated herein by reference, are hereby ratified, approved and
confirmed, and are binding upon the parties hereto.
2. Paragraph 1, Project Manager and Notices, of Agreement No. 11C00000010, is hereby
replaced to the extent that the DISTRICT'S Project Manager is R.J. Dowling, P.E. and the
CITY'S Project Manager is Ken Sides, P.E.
3. Subparagraph 3.9 is hereby added to Paragraph 3, Funding as follows:
3.9 In the event any dispute or disagreement arises during the course of the PROJECT,
including whether expenses are reimbursable under this Agreement, the CITY will
continue to perform the PROJECT work in accordance with the Project Plan. The
CITY is under a duty to seek clarification and resolution of any issue, discrepancy,
or dispute by providing the details and basis of the dispute to the DISTRICT'S
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Project Manager no later than ten (10) days after the precipitating event. If not
resolved by the Project Manager, in consultation with his or her Bureau Chief, within
ten (10) days of receipt of notice, the dispute will be forwarded to the DISTRICT'S
Executive Director. The DISTRICT'S Executive Director in consultation with the
DISTRICT'S Office of General Counsel will issue the DISTRICT'S final
determination. The CITY'S continuation of the PROJECT work as required under
this provision shall not constitute a waiver of any legal remedy available to the CITY
concerning the dispute.
4. Paragraph 4, Completion Dates, of Agreement No. 11C00000010, is hereby replaced to
the extent that construction of the PROJECT will be completed by June 30, 2015.
5. Paragraph 5, Failure to Complete Project, of Agreement No. 11C00000010, is hereby
replaced in its entirety with new Paragraph 5, Repayment, as follows:
5. REPAYMENT.
5.1 The CITY shall repay the DISTRICT all funds the DISTRICT paid to the CITY
under this Agreement, if: a) the CITY fails to complete the PROJECT in
accordance with the terms and conditions of this Agreement, including failing
to meet the measurable benefit; b) the DISTRICT determines, in its sole
discretion and judgment, that the CITY has failed to maintain scheduled
progress of the PROJECT thereby endangering the timely performance of this
Agreement; c) the CITY fails to appropriate sufficient funds to meet the task
deadlines, unless extended in accordance with Paragraph 1.1; or d) a
provision or provisions of this Agreement setting forth the requirements or
expectations of a measurable benefit resulting from the PROJECT is held to
be invalid, illegal or unenforceable during the term of this Agreement,
including the duration of the operation and maintenance obligations set forth
in Paragraph 6 of this Agreement. Should any of the above conditions exist
that require the CITY to repay the DISTRICT, this Agreement shall terminate
in accordance with the procedure set forth in Paragraph 12, Default.
5.2 Notwithstanding the above, the parties acknowledge that if the completed
PROJECT fails to meet the measurable benefit specified in this Agreement,
the CITY may request the DISTRICT Governing Board to waive the
repayment obligation, in whole or in part.
5.3 In the event the CITY is obligated to repay the DISTRICT under any provision
of this Agreement, the CITY shall repay the DISTRICT within a reasonable
time, as determined by the DISTRICT in its sole discretion.
5.4 The CITY shall pay attorneys' fees and costs incurred by the DISTRICT,
including appeals, as a result of CITY'S failure to repay the DISTRICT as
required by this Agreement.
6. Paragraph 7, Contract Period, of Agreement No. 11C00000010, is hereby replaced to the
extent that the expiration date is now January 31, 2016.
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7. Paragraph 11, Liability, of Agreement No. 11C00000010, is hereby replaced in its entirety
with new Paragraph 11, Risk, Liability and Indemnity, as follows:
11. RISK, LIABILITY, AND INDEMNITY.
11.1 To the extent permitted by Florida law, the CITY assumes all risks relating to
the PROJECT and agrees to be solely liable for, and to indemnify and hold
the DISTRICT harmless from all claims, loss, damage and other expenses,
including attorneys' fees and costs and attorneys' fees and costs on appeal,
arising from the design, construction, operation, maintenance or
implementation of the PROJECT; provided, however, that the CITY shall not
indemnify for that portion of any loss or damages proximately caused by the
negligent act or omission of the DISTRICT'S officers, employees, contractors
and agents. The acceptance of the DISTRICT'S funding by the CITY does
not in any way constitute an agency relationship between the DISTRICT and
the CITY.
11.2 The CITY agrees to indemnify and hold the DISTRICT harmless, to the extent
allowed under Section 768.28, F.S., from all claims, loss, damage and other
expenses, including attorneys' fees and costs and attorneys' fees and costs
on appeal, arising from the negligent acts or omissions of the CITY'S officers,
employees, contractors and agents related to its performance under this
Agreement.
11.3 This Paragraph 11 shall not be construed as a waiver of the CITY'S sovereign
immunity or an extension of CITY'S liability beyond the limits established in
Section 768.28, F.S. Additionally, this Paragraph 11 will not be construed to
impose contractual liability on the CITY for underlying tort claims as described
above beyond the limits specified in Section 768.28, F.S., nor be construed as
consent by the CITY to be sued by third parties in any manner arising out of
this Agreement.
11.4 Nothing in this Agreement shall be interpreted as a waiver of the DISTRICT'S
sovereign immunity or an extension of its liability beyond the limits established
in Section 768.28, F.S., nor be construed as consent by the DISTRICT to be
sued by third parties in any manner arising out of this Agreement.
8. New Paragraph 28, Severability, is hereby added as follows:
28. SEVERABILITY. If any provision or provisions of this Agreement shall be held to be
invalid, illegal, or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Notwithstanding the above, if a provision or provisions of this Agreement setting
forth the requirements or expectations of a measurable benefit resulting from the
PROJECT is held to be invalid, illegal or unenforceable during the term of this
Agreement, this Agreement shall terminate in accordance with Subparagraph 5.1.
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9. Exhibit "B," Project Schedule, of Agreement No. 11C00000010, is hereby replaced in its
entirety with the following:
PROJECT SCHEDULE
Description
Completion ua
Design and Permitting
12/31/2013
Bidding and Contractor Selection
07/17/2014
Commence Construction
09/01/2014
Complete Construction
06/30/2015
Construction Record Drawings
09/30/2015
The remainder of this page intentionally left blank.
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IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed
this AGREEMENT on the day and year set forth next to their signatures below.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
By:
Mark A. Hammond, P.E. Date
Director, Resource Management Division
CITY OF CLEARWATER
By:
George N. Cretekos, Mayor
By: kt,e,A e,
William B. Horne II, City Manager
Approved as to form:
Laura Mahon
Assistant City Attorney
Date
Date
Attest:
/WV)! etik, CCU
Rosemarie Call
City Clerk
AGREEMENT
BETWEEN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
AND
CITY OF CLEARWATER
FOR
STORMWATER IMPROVEMENTS -FLOOD PROTECTION - CLEARWATER
COASTAL ZONE 1 NEAR JEFFORDS STREET (N270)
Page 5 of 5
DISTRICT APPROVAL INITIALS DATE
LEGAL _ ____ 2/74111
RISK MGMT J?L�
CONTRACTS
BUREAU CHIEF
DIRECTOR
GOVERNING BOARD
IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed
this AGREEMENT on the day and year set forth next to their signatures below.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
By: �a e/' ' S-1z ✓�
Mark A. Hammond, P.E. Date
Director, Resource Management Division
CITY OF CLEARWATER
By:
George N. Cretekos, Mayor Date
By:
William B. Horne 1,1, City Manager Date
rrr.
Approved as to form: Attest:
ez_ot
Rosemarie Call
Laura Mahon
Assistant City o4torney City Clerk
AGREEMENT
BETWEEN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
AND
CITY OF CLEARWATER
FOR
STORMWATER IMPROVEMENTS—FLOOD PROTECTION—CLEARWATER
,COASTAL ZONE 1 NEAR JEFFORDS,STREET(N270)
DISTRICT APPROVAL INITNAl S DATE
LEGAL
RISK MGMT
CONTRACTS
BUREAU CHIEF ri
DIRECTOR
L sq_l'
GOVERNING BOARD
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