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COOPERATIVE FUNDING AGREEMENT FOR STORMWATER IMPLEMENTATION - FLOOD PROTECTION MAGNOLIA DRIVE IMPROVEMENT AREA (N445-3) c AGREEMENT NO. 13CO0000056 FIRST AME'NDMENT"( ) TO AGREEMENT BETWEEN THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND CITY OF CLEARWATER FOR STORMWATER IMPLEMENTATION - FLOOD PROTECTION MAGNOLIA DRIVE IMPROVEMENT AREA (N445) This FIRST AMENDMENT effective as of the 1sa day of October 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 CITE' 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." W ITNESSETH: WHEREAS, the DISTRICT and the CITY entered into an Agreement effective June 5, 2013 (Original Agreement), for modifications to stormwater inlets, rehabilitation of pipes and installation of debris collection devices in the Magnolia Drive Improvement Area; and WHEREAS, the parties hereto wish to amend the Agreement to make the effective (late of the Original Agreement October 1, 2012, extend the contract period and revise the scope of work due to the new recommended alternative design, which includes complete replacement, versus rehabilitation, of most of the existing stormwater infrastructure and the installment of additional debris collection devices. NOW THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties hereby mutually agree to amend the Original Agreement, effective June 5, 2013, as follows: 1 . Paragraph 1 Project Contacts and Notices, is hereby amended to replace the DISTRICT'S Contracts Manager with R.J. [Dowling„ P.E. 2. Paragraph 3, Funding, is hereby amended to increase PROJECT fundling by $2,0100,000 by replacing the paragraph and all subparagraphs in their entirety as follows: 3. FUNDING. The parties anticipate that the total) cost of the PROJECT will be Three Million One Hundred Thousand Dollars ($3,100,000). The DISTRICT agrees to fund PROJECT costs as appropriated by the DISTRICT in accordance with Subparagraph 3.1 below and anticipates funding PROJECT costs up to One Million Five Hundred Fifty Thousand Dollars ($1,554„000), and shall have no obligation to pay any costs beyond this anticipated maximum amount. The CITY agrees to provide all remaining funds necessary for the satisfactory completion of the PROJECT. Page 1 of 5 3.1 The DISTRICT'S performance and payment pursuant to this Agreement are contingent upon the DISTRICT'S Governing Board appropriating funds in its approved budget for the PROJECT in each fiscal year of this Agreement. The CITY recognizes that the DISTRICT has approved $1,550,000 for the PROJECT through Fiscal Year 2014. The CITY'S payment of any finarl6al obligation under this Agreement is subject to appropriation by the CITY'S Council of legally available funds. 3.2 The CITY shall pay PROJECT costs prior to requesting reimbursemeint from the DISTRICT. The DISTRICT shall reimburse the CITY for the DISTNCT'S share of allowable PROJECT costs in accordance with the PROJECT budget contained in the Project Plan set forth in Exhibit "A." Reimbursement for expenditures of contingency funds is contingent upon approval by the DISTRICT. If a reimbursement request includes the expenditure of contingency funds, the CITY shall provide sufficient documentation to the DISTRICT to explain the basis of the expense. The DISTRICT shall not reimburse the CITY for any contingency funds that the DISTRICT determines, in its sole discretion, to be in excess of what was reasonably necessary to complete the PROJECT. The DISTRICT shall reimburse the CITY for fifty percent (50%) of all allowable costs in each DISTRICT approved invoice received from the CITY, but at no point in time will the DISTRICT'S expenditure amounts under this Agreement exceed expenditures made by the CITY. 3.3 Unless otherwise stated in this Agreement, any federal, state, local or grant monies received by the CITY for this PROJECT shall be applied to equallly reduce each party's share of PROJECT costs. The CITY shall provide the DISTRICT with written documentation detailing its allocation of any such funds appropriated for this PROJECT. 3.4 The CITY may contract with consultant(s), contractor(s) or both to accomplish the PROJECT. The CITY must obtain the DISTRICT'S written approval prior to posting solicitations for consultants or contractors and prior to enteringi into agreements with consultants or contractors to ensure that costs to be reimbursed by the DISTRICT under those agreements are reasonable and allowable under this Agreement. The DISTRICT shall provide a written response to the CITY within fifteen (15) business clays of receipt of the solicitation or agreement. Upon written DISTRICT approval, the budget amounts for the work set forth in such contract(s) shall refine the amounts set forth in the PROJECT budget and be incorporated herein by reference. The DISTRICT shall not reimburse the CITY for costs incurred under consultant and contractor agreements until the DISTRICT approvals required under this provision have been obtained. 3.5 Payment shall be made to the CITY within forty-five (45) days of receipt of an invoice with adequate supporting documentation to satisfy auditing purposes. Invoices shall be submitted to the DISTRICT every two (2) riionths electronically at invoices&WaterMatters.oLq, or at the following address; Page 2 of 5 Accounts Payable Section Southwest Florida Water Management District Post Office Box 1166 Brooksville, Florida 34605-1166 The above-referenced payment due date shall not apply to that portion of an invoice that includes contingency expenses. The DISTRICT agrees to reimburse the CITY for contingency expenses within a reasonable time to accommodate the process provided for in Section 3.2 of the Agreement. In addition to sending an original invoice to the DISTRICT'S Accounts Payable Section as required above, copies of invoices may also be submitted to the DISTRICT'S Contract Manager in order to expedite the review process. Failure of the CITY to submit invoices to the DISTRICT in the manner provided herein shall relieve the DISTRICT of its obligation to pay within the aforementioned timeframe. 3.6 The parties acknowledge that the PROJECT was approved for funding by the DISTRICT based upon the resource benefits expected to be achieved by the PROJECT (the "Measurable Benefit"), The parties also acknowledge that the CITY is solely responsible for implementing the PROJECT in such a rnanner that the expected resource benefits are achieved. If at any point during the progression of the PROJECT the DISTRICT determines that it is likely that the Measurable Benefit, as set forth in the Project Plan, will not be acl"lieved, the DISTRICT shall withhold payments to the CITY until such time as the CITY demonstrates that the PROJECT shall achieve the required resource benefits. 3.7' Any travel expenses which may be authorized under this Agreement shall be paid in accordance with Section 112.061, F.S., as may be amended from time to time. The DISTRICT shall not reimburse the CITY for any purpose not specifically identified in Paragraph 2, Scope of Work. Surcharges added to third party invoices are not considered an allowable cost under this Agreement. Costs associated with in-kind services provided by the CITY are not reimbursable by the DISTRICT and may not be included in the CITYS share of funding contriibutions under this Agreement. 3.8 The DISTRICT has no obligation and shall not reimburse the CITY for any costs under this Agreement until the Notice to Proceed with construction has been issued to the CITY'S contractor. 3.9 Each CITY invoice must include the following certification, and the CITY hereby delegates authority by virtue of this Agreement to its Project Manager to affirm said certification: "I hereby certify that the costs requested for reimbursement and the CITY'S matching funds, as represented in this invoice, are directly related to the performance under the Stormwater Improvement - Flood Protection, Magnolia Drive Improvement Area (N445) agreement Page 3 of 5 between the Southwest Florida Water Management District and City of Clearwater (Agreement No. 13C0�0�000056), are allowable, allocable, properly documented, and are in accordance with the approved project budget. This invoice includes $_ of contingency expenses. The CITY has been allocated a total of $— in federal, state, local or grant r'noniles for this PROJECT. $— has been allocated to this invoice, reducing the DISTRICT'S and CITY'S share to 3.10 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 Contract Manager no later than ten (10) days after the precipitating event. If not resolved by the Contract Manager, in consultation with his or her Bureau Chief, witl-)41 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. 3. Paragraph 4, Completion Dates, is hereby amended to commence the PROJECT by March 27, 2013, and complete construction by January 1, 2016. 4. Paragraph 7, Contract Period, is hereby replaced in its entirety as follows: 7. CONTRACT PERIOD. This Agreement shall be effective October 1, 2012, and shall remain in effect through April 15, 2016, or upon satisfactory completion of the PROJECT and subsequent reimbursement to the CITY, whichever occurs first, unless amended in writing by the parties. The CITY shall not be eligiHe for reimbursement for any work that is commenced, or costs that are incurred, prior to the effective date of this Agreement. 5. The Exhibit 'A" City of Clearwater Project Plan, is hereby replaced in its entirety with Exhibit "A" attached hereto. 6. The terms, covenants and conditions set forth in the Original Agreement that have not been specifically amended herein, will continue in existence, are hereby ratified, approved and confirmed, and will remain binding upon the parties hereto. The remainder of this page intentionally left blank. Page 4 of 5 IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed this FIRST AMENDMENT on the day and year set forth inext to their signatures below. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT Sy E., ertjt.. 9: to Date Brian J. Armstrong, P.G„ Assistant Executive Director CITY OF CLEARWATER Sy. .w George N. Cretekos, Mayor Date By: William B. Horne Il, City erg,.,, ° Da.�r� y g to AT Approved as to form: Attest: Laura Mahony Rosemarie Call Assistant City Attorney City Clerk ISWD FIRST AMENDMENT(3) TO AGREEMENT BETWEEN THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND CITY OF CLEARWATER FOR STORMWATER IMPLEMENTATION-FLOOD PROTECTION MAGNOLIA DRIVE IMPROVEMENT AREA(N445) DISTRICT APPROVAL. INITIALS DATE: LEGAL _ ' ,, _ �Xe e,, I,— RISK MGMT _ CONTRACTS BUREAU CHIEF ' - a/ DIRECTOR �1 GOVERNING BOARD ' Page 5 of 5 AGREEMENT NO. 13CO0000056 EXHIBIT "A" PROJECT PLAN Project Description: The Stormwater Improvement - Flood Protection PROJECT is an Implementation of the Best Management Practices (BMPs) element of the DIISTRICT'S Watershed Management Program (WMP) in the Coastal Basin 11 Watershed, Magnolia Drive Improvement Area. The PROJECT includes replacement and abandonment of the existing stormwater infrastructure as shown on the attached diagram, and the installation of three nutrient separating baffle boxes to collect leaves and debris, so waste materials can be hauled off site for disposal. The watershed covers an area of approximately 45 acres and is located in the City of Clearwater (CITY). Currently, stormwater runoff carries leaves and debris off South Fort Harrison Avenue, Druid Drive, Jasmine Way, Bay Avenue, and Magnolia Drive directly into Clearwater Harbor. Project Tasks: The CITY shall: 1. Complete the design, permitting, preparation of contract documents, land acqUisition, and provide construction engineering and inspection (CEI) services during construction, including survey, observations, and materials testing, to ensure that the construction work is performed in accordance with the final design verified by the DISTRICT. 2. Construct the PROJECT in accordance with the final design verified by the DISTRICT. 3. Attend one meeting with the DISTRICT prior to beginning the PROJECT to diSCUSS the approach, schedule and budget. Measurable Benefit: Based on the Magnolia Drive Outfall Stormwater Collection and Water Quality Improvements Basis of Design Report produced by Interflow Engineering, LLC, dated December 6, 2012, the PROJECT will provide the following benefits: Flood protection benefit The PROJECT involves the construction of Alternative 3 versus Alternative 1, which was originally proposed, with FY2013 funding. Alternative 1 results show 15 of 21 nodes have a maximum flooding depth greater than 0.5 feet, while Alternative 3 results show only 2 of 21 nodes have a maximum flooding depth greater than 0.5 feet; both in the 10-year/24-hour storm event. During the 10-year/24-hour event, the maximum roadway flooding will be reduced from 1.30 feet to less than .66 feet and the maximum flooding durations will be reduced from 235 minutes to 37 minutes or less (except Node N0010 near seawall). Water quality benefit The nutrient separating baffle boxes will provide water quality treatment for all but 0.9 acres of the 45 acre drainage basin. The average derived efficiency for the second generation baffle box was reported as 44% for non-dissolved solids, '10% for nitrogen, and 9% for phosphorus. Each baffle box will also include a skimmer and boom to collect and absorb Page 1 of 3 hydrocarbons. The additional baffle boxes will provide additional capacity which will reduce the frequency of maintenance, therefore increasing the water quality benefit, especially in a heavy canopy drainage basin. This removal will directly benefit Clearwater Harbor into which the systems directly flows. Project Deliverables: The CITY will provide the DISTRICT with the following: • Quarterly Status Reports • Conceptual Design or Basis of Design Reports, 30%,, 60%, 90% • Final Construction Drawings and Technical Specifications • Copy of all required federal, state and local environmental permit application packages and final permits • Copy of Contract with consultant and contractor in accordance with Subparagraph 3.4 • Copy of Notice-To-Proceed to contractor • One copy of a summary of the construction quality assurance data, construction record drawings and permit related submittals • Two (2) sets, electronic and hardcopy, of any final reports • Minority/Women Owned and Small Business Utilization Report Project Schedule: DESCRIPTION COMMENCE COMPLETE Contract Engineer for Design & Permitting 03/27/13 05/31/14 30% Design Plans 03/27/13 07101/13 60% Design Plans 07/012/13 10/21/13 Acquire Permit 10/31/13 12,/31113 90%© Design Plans 10/22113 12/11/13 Final Des,ign Plans 12/12113 05/31/14 Bidding & Contract Award 06/01/14 09/30114 Construction Contractor Mobilization 10/01114 01/01/16 Construction and Construction 10/01/14 01/01/16 Engineeriinq & inspection (CEI) Substantial Completion Inspection 10/15115 01/01116 Final Acceptance Inspection 12/15/15 01/01/16 Additional task deadlines contained in the performance schedules of the consultant and contractor contracts will be incorporated herein by reference. Project Budget: Description DISTRICT CITY TOTAL Design & Permitting $150,000 $150,000 $300,000 Construction $1,375,000 $1,375,000 $2,750,000 CEI $25,000 $25,000 $50,000 Contingency $0 $0 $0 Total $1,550,000 $1,550,000 $3,100,000 Page 2 of 3 71 ===77-- �.�.. _.._. ' M) Propos(,YJ Baffle Box. l , IT v .... propos sefffa wm a r �.. I v - .. _...- ... V 1 _ 1 i - ..... Prole cl A me .................... IJ j �.... 4 proPoaapip" t inch=spofeet City project #12-0023-EN Fiarng Pape No Change e = ° SWF'U MD project # N445 —moww—*-Abori4pmlRerravv^e Ptlpc a rJode,'No a Survey mom s..w. Map Gary By:CRM Reviewed By: KdS 1 Date:1811412013 �. � Rana!eoaaaimy Grid#:2tt6�3 S-T-R:16-2946 Page 3 of 3 a6 AGREEMENT NO 1 CO00000 6 COOPERATIVE FUNDING AGREEMENT BETWEEN THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND CITY OF CLEARWATER FOR STORMWATER IMPLEMENTATION - FLOOD PROTECTION MAGNOLIA DRIVE IMPROVEMENT AREA (N445-3) THIS COOPERATIVE FUNDING AGREEMENT is made and entered into by and between the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation of the State of Florida, whose address is 2,379 Broad Strut, Brooksville, Florida 4604-6899, hereinafter referred to as the "DISTRICT," and CITE` 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 CITY proposed a project to the DISTRICT for funding consideration under the DISTRICT'S cooperative funding program; and WHEREAS, the project consists of modifications to stormwater inlets, rehabilitation of pipes and installation of debris collection devices in the Magnolia Drive Improvement Area, hereinafter referred to as the "PROJECT"; and WHEREAS, the DISTRICT considers the resource benefits to be achieved by the PROJECT worthwhile and desires to assist the CITY in funding the PROJECT. NOW THEREFORE, the (DISTRICT and the CITY, in consideration of the mutual terms, covenants and conditions set forth herein, agree as follows; 1. PROJECT CON ACTS..... �ND NOTICES. Each party hereby designates the individual set forth below as its ,prime contact for matters relating to this Agreement. (Notices and reports shall be sent to the attention of each party's prime contact as set forth herein by U.S. mail, postage paid, by nationally recognized overnight courier, or personally to the parties` addresses as set forth below, Notice is effective upon receipt. Contract Manager for the DISTRICT: Project Manager for the CITE: Scott Letasi, P.E. Ken, Sides, P.E. Southwest Florida Water Management District City Of Clearwater 2379 Broad Street 190 S Myrtle Avenue, Rm 229 Brooksville, Florida 4604-6899 Clearwater, Florida 33618 Any changes to the above representatives or addresses must be provided to the other party in writing. Wage 1 of 10 � /i // ///// //// / "rllid //r /r/� /i/i////�aio//i,/� a�lr�✓m��i/�rn/U�U.fr/aii<apai���iinOrarr��rii,aiii,i/,rrccffoor. //,,,,,,,.,,,,,,,,.. ,,,... rrrrr�i/ia�//�/rG/%�/i0/%%/lr/l/liiiai�a6lo/ilirirrrrrrrin��rii�iii/G�mrr�i�i�o�✓/�ii�iii/aii� Gi rr 1.1 The DISTRICT'S Contract Manager is authorized to approve requests to extend a PROJECT task deadline set forth in this Agreement, Such approval must be in writing, explain the reason for the extension and be signed by the Contract Manager and his or her Bureau Chief, or Director if the Bureau Chief is the Contract Manager, unless the DI'STRICT'S Signature Authority provides otherwise. The DISTRICT'S Signature Authority supersedes the approval requirements provided in this provision. The DISTRICT'S Contract Manager is not authorized to approve any time extension which will result in an increased cost to the DISTRICT or which will exceed the expiration date set forth in this Agreement, 1.2 The DISTRICT'S Contract Manager is authorized to adjust a line item amount of the PROJECT budget contained in the Project Plan set forth in Exhibit "A" or, if applicable, the refined budget as set forth in Subparagraph 3.2 below, The authorization must be in writing:, explain the reason for the adjustment, and be signed by all appropriate DISTRICT staff in accordance with the DISTRICT'S Signature Authority. The DISTRICT'S Contract Manager is not authorized to mare changes to the Scope of Work and is not authorized to approve any increase in the amounts set forth in the funding section of this Agreement. 2. SCOFF OF WOKK. Upon receipt of written notice to proceed from the DISTRICT, the CITY shall perform the services necessary to complete the PROJECT in accordance with the CITY'S Project Plan set forth in Exhibit "'A." Any changes to this Agreement, except as provided herein, must be mutually agreed' to, in a formal written amendment approved by the DISTRICT and the CITY prior to being performed by the CITY. The CITY shall' be solely responsible for managing and controlling the PROJECT, bath during and after construction and during and after the operation and maintenance of the PROJECT, including the hiring and supervising of any consultants or contractors it engages. The parties agree that time is of the essence in the performance of each obligation under this Agreement. 3. FUNDING. The parties anticipate that the total' cost of the PROJECT will be One Million One Hundred Thousand dollars ($1,100,000). The DISTRICT agrees to fund PROJECT costs up to Five Hundred Fifty Thousand Dollars ($560,000) and shall have no obligation to pay any casts beyond this maximum amount. The CITY agrees to provide all remaining funds necessary for the satisfactory completion of the PROJECT, The CITY shall pay PROJECT costs prior to requesting reimbursement from the DISTRICT. .1 Any federal, state, local or grant monies received by the CITY for this PROJECT shall be applied to equally reduce each party's share of PROJECT costs. The CITY shall provide the DISTRICT with written documentation detailing its allocation of any such fund's appropriated for this PROJECT. 3.2 The CITY may contract with consultant(s), contractors) or both to accomplish the PROJECT. The CITY must obtain the DISTRICT'S written approval prier to posting solicitations for consultants or contractors and prior to entering into Page 2 of 10 im agreements with consultants or contractors to ensure that costs to be reimbursed by the DISTRICT under those agreements are reasonable and allowable under this Agreement. Upon written DISTRICT approval, the budget amounts for the work set forth in such contract(s) shall refine the amounts set forth in the PROJECT budget and be incorporated herein by reference. The DISTRICT shall not reimburse the CITY for cosh incurred under consultant and contractor agreements until the DISTRICT approvals required under this provision have been obtained. 3.3 The DISTRICT shall reimburse the CITY for the DISTRICT'S share of the allowable PROJECT costs in accordance with the PROJECT (budget contained in the Project Plan set forth in (Exhibit ""A." The DISTRICT shall reimburse the CITY foir fifty percent ( tI%) of all allowable costs in each DISTRICT approved invoice received) from the CITY, but at no point in time will the DIISTRICT"S expenditure amount under this Agreement exceed expenditures made by the CITY. Payment shall be made to the CI'T'Y within forty-five (45) days of receipt of an invoice with adequate supporting documentation to satisfy auditing purposes. Invoices shall be submitted to the DISTRICT every two (2) months electronically at invoicesOWaterMatters.org, or at the foflowng address: Accounts Payable Section Southwest Florida Water Management District Post Office Box 11,66 Brooksville, Florida 34605-11 66 In addition to sending an original invoice to the DISTRICT'S Accounts Payable Section as required above, copies of invoices may also be submitted to the DISTRICT'S Contract Manager in order to expedite the review ;process. Failure of the CITY to submit invoices to the DISTRICT in the manner provided herein shall relieve the DISTRICT of its obligation to pay within the aforementioned timeframe. .4 The parties acknowledge that the PROJECT was approved for funding by the DISTRICT loaned upon the resource benefits expected to be achieved by the PROJECT. The parties also acknowledge that the CITY is solely responsible for Implementing the PROJECT in such a manner that the expected resource benefits are achieved. If at any point during the progression of the PROJECT, the DISTRICT determines that the expected resource benefits as set forth in the Project Pllan may not be achieved, the DISTRICT shalll withhold payments to the CITY until such time as the CITY demonstrates that the PROJECT shall achieve: the required resource benefits. 3.5 Any travel expenses which may be authorized under this Agreement shall l be paid in accordance with Section 112.061, F.S., as may be amended from time to time. The DISTRICT shall not reimburse the CITY for any purpose not specifically identified) in Paragraph 2, Scope of Work. Surcharges added! to third party invoices are not considered an allowable cost under this Agreement. Costs associated with in-kind services ;provided by the CITY are not reimbursable by Page 3 of 10 � ff l the DISTRICT and may not be included iin the CITY'S share of funding f contributions under this Agreement. 1 The DISTRICT has no obligation and shall not reimburse the CITY for any costs under this Agreement until construction of the PROJECT has commenced. r 3.7 Each CITY invoice must include the following certification, and the CITY hereby delegates authority by virtue of this Agreement to its Project Manager to affirm said certification: "II hereby ertif that the casts requested for reimbursement and the CITY'S Y Y q matching funds, as represented in this invoice, are directly related to the performance under the Stormwater Improvement _ Flood Protection Magnolia Drive Improvement Area (N445- ) agreement between the Southwest Florida Water Management District and City of Clearwater (Agreement No_ 13CO0000055),, are allowable, allocable, properly documented, and are in << accordance with the approved project budget. The CITY has been allocated a total of in federal), state, local or grant monies for this PROJECT. _ has been allocated to this invoiice, reducing the DISTRICTS and CITY'S share to 'r 3.8 The DISTRICT'S performance and payment pursuant to this Agreement are contingent upon the DISTRICT'S Governing Board appropriating funds in its r approved budget for the PROJECT in each Fiscal Year of this Agreement. 4. COMPLETION DATES, The CITY shall commence the PROJECT by July 1 , 2013, shall l complete construction of the PROJECT by November 11, 2014 and shall otherwise meet the task deadlines established in this Agreement, as may be extended by the DISTRICT in accordance with Paragraph 1 of this Agreement. In the event of hurricanes, tornados, floods, acts of God, acts of war, or other such catastrophes, or other man-made emergencies such as labor strifes or riots, 'which are beyond the control of the CITY, the CITY'S obligations to meet the time framers provided in this Agreement shall be suspended for the period) of time the condition continues to exist. r During such .suspension, this Agreement shall remain in effect. When the CITY is able to resume performance of its obligations under this Agreement, in whole or in part„ it shall immediately give the DISTRICT written notice to that effect and shall resume performance no later than two (2) working days after the notice is delivered). The 1 suspension of the CITY'S obligations provided for in this provision shall be the CITY'S r sole remedy for the delays set forth herein. 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; 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 Page 4 of 10 M d) a provision or provisions of this Agreement setting forth the requirements or expectations of a measurable resource 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, Defa,ult. 5.2 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. 5.3 The CITY shell 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. . }P ATIC 'IAI�'TE ANCE, After construction is completed, the CITY shall operate, use and maintain the PROJECT for a minimum of twenty ( g) years, in such a manner that the resource benefits required under the Agreement are achieved.. In the event the PROJECT is not operated, used and maintained in accordance with these requirements, the CITY shall repay the DISTRICT an amount of five percent (5%) of total DISTRICT' monies contributed to the PROJECT for each year or a fraction thereof for the early termination of the PROJECT. The rights and remedies in this provision are in addition to any other rights and, remedies provided by law or this Agreement.. T. CONTRACT PERIOD. This Agreement shall be effective upon execution by the parties and shall remain in effect through April 15, 2015, or upon satisfactory completion of the PROJECT and subsequent reimbursement to the CITY, whichever occurs first, unless amended in writing by the parties. The CITY shall not be eligible for reimbursement for any work that is commenced, or costs that are incurred, prior to the effective date of this Agreement, 8, DjECT ECC D AND DO(CU LENT . Upon request by the DISTRICT, the CITY shall permit the DISTRICT to examine or audit all PROJECT related records and documents during or fallowing completion of the PROJECT at no, cost to the DISTRICT. Payments made to the CITY under this Agreement shall be reduced, for amounts found to be not allowable under this Agreement by an audit. If an audit is undertaken by either party, all required records shall be maintained until the audit has been completed and all questions arising from it are resolved. Each party shall maintain all such records and documents for at least three ( ), years following completion of the PROJECT. Each party shall allow public access to PROJECT documents and materials made or received by either party in accordance with the Public Records Act, Chapter 119, F- , Should either party assert any exemption to the requirements of Chapter 119, F.S., the burden of establishing such exemption, by way of injunctive or other relief as provided by law., shall be upon,, the asserting party. Page 5 of 10 9. REPORTS. 9.11 The CITY shall provide the DISTRICT, with a quarterly report describing the progress of the PROJECT tasks, adherence to the performance schedule and any developments affecting the PROJECT. The CITY shall promptly advise the DISTRICT of issues that ar,ise that may impact the successfu� and timely completion of the PROJECT. 9'.2 Upon request by the DISTRICT, the CITY shall provide the DISTRICT with copies of reports, models, studies, maps or other documents resulting from the PROJECT, 93 The CITY must ensure that the design of the PROJECT maximizes the resource benefits to the greatest extent practicable. The CITY shall provide the DISTRICT with the 30%, 60%, and proposed final design in order for the DISTRICT to verify that the design meets the requirements of this provision. The DISTRICT shall provide a written response to the CITY within, ten (10) business days of receipt of the design plans either verifying the! design plans appear to meet the requirements of the! Agreement or stating its insufficiencies. The CITY shall not finalize the design, or advertise the construction bid documents until the DISTRICT provides the required verification. The DISTRICT'S verification shall not constitute an approval of the design, or a representation or warranty that the DISTRICT has verified the architectural, engineering, mechanical, electrical, or other components of the construction bid documents or that such documents are in compliance with 'DISTRICT rules and regulations or any other applicable rules, regulations or law. The CITY shall require the design professional to warrant that the construction documents, are adequate for bidding and construction of the PROJECT. 9A The CITY shall provide the reports and documents referenced in this provision at no cost to the DISTRICT. 10, RISK, LIABILITY, AND INDEMNITY. 10.1 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, defend 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, The acceptance of the DISTRICT'S funding by the CITY does not in any way constitute an agency relationship between the DISTRICT and the C1W 10,2 The CITY agrees to indemnify, defend, 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. The DISTRICT shall have the right to approve counsel selected by page 6 of 10 the CITY. This provision 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 provision 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. 163 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, 11. DEFAULT. Either party may terminate this Agreement upon the other party's failure to comply with any term or condition of this Agreement, including-g the failure to meet task deadlines established in this Agreement, as long as the terminating party is not in default of any term or condition of this Agreement at the time of termination. To effect termination, the terminating party shall provide the defaulting party with a written, `Notice of Termination' stating its Intent to terminate and describing all terms and conditions with which the defaulting party has failed to comply. If the defaulting party has not remedied its default within thirty ( 0) days after receiving the Notice of Termination, this Agreement .shall, automatically terminate, If a default cannot reasonably, be cured in thirty (80) days, then the thirty (80) days may be extended at the non-defaulting party's discretion, if the defaulting party is pursuing a cure of the default with reasonable diligence, The rights and remedies in this provision are in addition to any other rights and remedies provided by lawn or this Agreement. 12. RELEASE OF INFORMATION, The parties agree not to initiate any oral or written media interviews or issue press releases on or about the PROJECT without providing notices or copies to the other party no later than three (8) business days prior to the interviews or press release. This provision shall not be construed as preventing the parties from complying with the public records disclosure laws set forth in Chapter 119, F,S. 18. DISTRICT RECOGNITION. The CITY" shall recognise DISTRICT funding in any reports, models, studies, maps or other documents resulting from this Agreement, and the form of said recognition shall be subject to [DISTRICT approval. If construction is involved, the CITY ,shall provide signage at the PROJECT site than recognizes funding for this PROJECT provided by the DISTRICT. All signage must meet with DISTRICT written approval as to form, content and location, and must be in accordance with local sign ordinances, 14. PERMITS AND REAL IR PERTY RIGHTS. The CITY shall obtain all permits, local government approvals and all real property rights necessary to complete the PROJECT prior to commencing any construction involved in the PROJECT. The D ,STRICT shall have no obligation to reimburse the CITY for any costs under this Agreement until the CITY has obtained all permits, approvals, and property rights necessary to accomplish the objectives of the PROJECT. In the event a permi=t, approvail or property, right is obtained but is subsequently subject to a legal challenge that results in an unreasonable delay or cancellation of the PROJECT as determined by the DISTRICT in its sole discretion, the CITY shall repay the DISTRICT all meanies contributed to the PROJECT. 'age 7 of 10 iifrrrlrrr�rrllnir/Irl/i////%/////GG//////�%///////�i//////G/r�/1//�lllllrrr�lrrrUl�l�l/ilI%IG%///i/�/riiGiiiriirirrrrr/Simi//�i�irrrrlrrrrrrrrrrrrlrrr/rrrrrrrirUrlrrtrro/rrrrfcr �////c iii/i ✓c ro 1 . LAW COMPLIANCE, The CITY shall comply with all appi'icable federal, state and local laws, rules, regulations and guidelines, including those of the DISTRICT, related to performance under this Agreement. I f the PROJECT involves design services, the CITY'S professional designers and the DISTRICT'S regulation and projects staff shall meet regularly during the PROJECT design to discuss ways of ensuring that the final design for the proposed PROJECT technically complies with all ,applicable DISTRICT rules and regulations, However, the DISTRICT undertakes no duty to ensure compliance with such rules and regulations. 16. DIVERSITY IN CONTPACTING AND SUBCONTRACTING, The DISTRICT is committed to supplier diversity in the performance of all contracts associated with DISTRICT cooperative funding projects. The DISTRICT requires the CITY to make good faith efforts to encourage the participation of minority owned and woman owned and small business enterprises, both as prime contractors and subcontractors, in the performance of this Agreement, in accordance with applicable laws. 1'6.1 If requested, the DISTRICT shall assist the CITY by sharing information to help the CITY in ensuring that minority owned and woman awned and small businesses are afforded an opportunity to participate in the performance of this Agreement. 16.2 The CITY" agrees to provide the DISTRICT with a report indicating all contractors and subcontractors who performed work in association with the PROJECT, the amount spent with each contractor or subcontractor, and' to the extent such information is known, whether each contractor or subcontractor was a minority owned or woman owned or, small business enterprise, If no minority owned or f woman owned or small business enterprises were used in the performance of this Agreement, then the report shall so indicate. The 'MinoritylWomen Owned and Small Business Utilization Report form is attached as Exhibit "B." The report is 1 required upon final completion of the PROJECT prior to final payment, or within thirty (301) days of the execution of any amendment that increases PROJECT funding, for information up to the date of the amendment and prior to the disbursement of any additional funds by the DISTRICT. 17. ASSIGNMENT., Except as otherwise provided in this Agreement, no party may assign any of its rights or delegate any of its obligations under this Agreement, including any operation or maintenance duties related to the PROJECT, without the prior written consent of the other party. Any attempted assignment in violation of this provision is void. 1 8. CONTRACTORS, Nothing in this Agreement shall be construed to create, or be implied to create, any relationship between the DISTRICT and any consultant or contractor of the CITY. 1 gn. THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to benefit any person or entity not a party to this Agreement.. Page8 of lo „,.,.,., m... „a/.�/lnllllloLU.Zarao/Gar✓Vm///�/��//J�/���//pfd/i'///l////UG///%6ln�i�/�Ov /l�%///,(((////Oi/e/!///l/////,/L4"/�////./(O,IIIUG�//�G//O/��//��l� �� f 20. LOBBYING Ply J11BI�. Pursuant to Section 216.347, F.S., the CITY is prohibited from using funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or a state agency. 21. PLf%LIC EITI Y CRIMES. Pursuant to Subsections 287.138(2) and (8), F. ., a person or affiliate who has been placed on the convicted vender list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids, proposals, or replies can leases of real property to' a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact busine ss with any pudic entity in excess of the threshold amount provided in Section 287.617, F.S., for Category Two, for a period of 86 months following the date of being placed on the convicted vendor list. The CITY agrees to include this provision in all contracts issued as a result of thin Agreement. 22. CI kJTINIZEC gOMEANIg5. Pursuant to Section 287,135, F.S., a company that, at the time of bidding or submitting a proposal for a new contract or renewal of an existing contract, is on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector Dist, created` pursuant to Section 211 .473, F.S., is ineligible for, and may not bid on, submit a proposal for, or enter Into or renew a contract with an agency or local governmental entity for goods or services of 1 million or more. Any contract with an agency or local governmental entity fear, good's or services of 1 million or more entered into or renewed on or after July 1, 2011, must contain a provision that allows for the termination of such contract at the option of the awarding body if the company is found to have submitted a false certification as provided under Subsection 287.186(8), F„ ., or has been placed on either of the aforementioned lists The CITY agrees to comply with the requirements of ,section 287.135, F.S. In connection with the implementation of the PROJECT. 28. G C G II C AW. All aspects of this Agreement are governed by Florida law and venue shall be in Hernando County, Florida. 24. SEVE-I ABILI�Y. 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. 26. �a'URWIVAL. The provisions of this Agreement that require performance after the expiration or termination of this Agreement shall remain in force notwithstanding the expiration or termination of this Agreement including Subparagraph 8.1, and Paragraphs 8, 6, 8, 18, 14, 17 and 24 and any provisions requiring an offset or other continuing resource benefit. 26. ENTIRE AGREEM'EN, This Agreement and the attached exhibits listed below constitute the entire agreement between the parties and, unless otherwise provided herein, may be amended only in writing, signed by all parties to this Agreement, Page 9 of 10 i .. 27. DOCUMENTS, The following documents are ,attached and made a part of this Agreement. In the event of a conflict of contract terminology, priority Shall first be given to the language in the body of this Agreement" then to Exhibit "A," and then to Exhibit "B."" Exhibit "A" CITY°S Project Flan Exhibit "B'" Minority/Women, Owned and Small Business Utilization Report Farm IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed this Agreement can the day and year set forth next to their signatures below. SOUTHWEST 'FLORIDA WATER MANAGEMENT DISTRICT By. '10 „ Robert R. Beltran, P.E. ate Assistant Executive Director r CITE' OF CLEARw, ATER By. ;xbd Mayer Date George N,. Creteko By. % William B. Herne, City Manager Date r'zvcead as to f ,.rm* Attest. a ry Leslie K ougall,Sides Rosemarie Call m ,� Assistant City Attorne City Clerkw COOPERATIVE FUNDING AGREEMENT i BETWEEN THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND CITE"OF CLEARWATER FOR i STORiw1WATER IMPROVEMENT- FLOOD PROTECTION MAGNOLIA DRIVE IMPROVEMENT AREA(N445-3) i h 'DI'STRICT APPROVAL INITIALS DATE LEGAL Jul RISK MCMT CONTRACT BUREAU CHIEF it c DIRECTOR k.4 g OVER?�i NG BOARD Page 10 of 10 / / i 0 AGREEMENT NOi. 13CO0000056 EXHIBIT "A" CITY OF CLEARWATER PROJECT PLAN Project Description: Th,is Stormwater Improvement - Flood Protection project is an Implementation of the Best Management Practices (BMPs) element of the DISTRICT'S Watershed Management Program (WMP) in the Coastal Basin, I Watershed, Magnolia Drive Improvement Area. The PROJECT upgrades stormwater inlets, rehabilitates or replaces pi�pes, and instafl nutrient !separating baffle boxes to collect leaves and debris so the materials can be hauled off site for disposal. The watershed covers an area of approximately 45 acres and is located in the City of Clearwater (CITY). Currently, stormwater runoff carries leaves and debris �off South Fort Harrison Avenue, Druid Drive, Jasmine Way, and Magnolia Drive directly into St. Joseph Sound. Project Tasks: The CITY shafl,� I. Complete the design, permiffin,g, preparation of contract documents, and to provide construction engineering and inspection (CEI) services during construction, including survey, observations, and materials testing, to ensure that the construction work is performed in accordance with the final design verified by the DISTRICT. 2. Construct the PROJECT in accordance with the final design verified by the DISTRICT. 3. Attend one meeting with the DISTRICT prior to beginning the PROJECT to discuss the approach, schedule and budget. Measurable Benefit: Based on the Interflow Engineering, LLC Magnoilia Drive Ouffali Stormwater Collection and Water Quality Improvements Basis of Design Report, dated October �8, 2012, the PROJECT will provide the following benefits: Eiood w2lq�, -enefit During a 10yr-24hr storm event (7.5 inches of rainfall over 24 hours) the current street flooding level of service (LOS) [Criterion is 6 inches or less of flooding depth) will improve from, not meeting the LOS at I�O locations to meeting the LOS at 91 locations and reducing the street flooding duration for the 101th location, from 195 hours to 0.62 hours. Wait r guality D-enefit Water qual,ity treatment for 45 acres of the drainage basin, including the reduction of total suspended solids (TSS) by approximately 44%, total nitrogen (TN) by approximately 10%, and total phosphorus (TP) by approximately 9%, as well as the removal of floatables and oils,/greases. Page 1 of 2 iG�ca//rrrlf%rrr i///�/r///err//lllrlrr/full////lllllllllllll/2l/Q/l lrlrrrlrrrlr lilrl/1/1/li!//�ilalal lG/n///ifri2r/arrrrrlrrrr/i/i/Oiii0��i0ilrrrrrii/�i//aG////i/r/%/////////////1////////I`irrrrrrrrrlrrrrr�iiiaiiiir///iii Project Deliverable's, The CITY will provide the DISTRICT with the following: • Quarterly Status Reports • Specifications and Bidding Documents • Construction Plans • onstruction'Permits • Copy of environmental permit application packages and final permit • Bid Tabulation • Copy of Contract with consultant and contractor • Copy of Notice-To-Proceed to contractor • One copy of a summary of the construction quality assurance data„ construction record drawings and permlit related submittals.. • Minority 1+`omen Owned and mall business Utilization Deport Project Budget: f DESCRIPTION DISTRICT CITY TOTAL Design $150,000 $150,0001 $300,000 CPI $ 10,000 $ 1 0,0�00 $ 20,000 Construction $ �90 g0g $ 390,0,00 Total $ 550,0100 $ 560,000 $1,1 Project Schedule: Task Date Design and Permitting Complete ,duly 1, 2015 Bidding and Contractor Selection August 31, 201 Construction Commence' October 31, 201 Construction Complete November 11, 2014 Construction records December 31,, 2014 Additional task deadlines contained in the performance schedules of any consultant and contractor contracts will be incorporated herein by reference. 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