P EXHIBIT 3
NEW WATER SOURCES FUNDING AGREEMENT
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
THE WEST COAST REGIONAL WATER SUPPLY AUTHORITY
FOR THE PROJECT
1 THIS AGREEMENT is entered into this day of by and between
2 the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public
3 corporation created by Chapter 61-691, Laws of Florida, as amended, for itself and on
4 behalf of the BASIN BOARD, hereinafter collectively
5 referred to as the "DISTRICT," and the WEST COAST REGIONAL WATER SUPPLY
6 AUTHORITY, an independent special district created pursuant to Sections 373.1962 and
7 163.01, Florida Statutes, hereinafter referred to as the "AUTHORITY."
11 WHEREAS, it is the policy of the State of Florida, as described in Chapter 373, Florida
12 Statutes, and related rules, that water management districts be responsible to protect and
13 preserve the water resources of Florida; and
15 WHEREAS, the DISTRICT supports all feasible efforts aimed at promoting the quality,
16 conservation and protection of all water sources; and
18 WHEREAS, the AUTHORITY has submitted the Project,
19 hereinafter referred to as the "PROJECT" for funding assistance under the District's New
20 Water Sources Initiative; and
22 WHEREAS, the parties hereto have reached an understanding that the AUTHORITY
23 engage the professional services necessary to design, permit and implement said
24 PROJECT; and
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a WHEREAS, the AUTHORITY represents that it possesses the requisite skills,
knowledge, expertise and resources necessary to properly complete the PROJECT.
4 NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
5 herein contained, the parties agree as follows:
7 1. INDEPENDENT CONTRACTOR. The AUTHORITY shall perform as an
8 independent Contractor and not as an employee, representative or agent of the
11 2. COMPLIANCE WITH DISTRICT RULES AND REGULATIONS. During
12 PROJECT design, the CONSULTANT and DISTRICT regulation staff shall meet
13 to discuss applicable DISTRICT rules and regulations; and prior to PROJECT
14 construction all permits required therefore shall be obtained.
16 3. SCOPE OF WORK
18 3.1 Contracting with Consultant(s) and Contractor(s). The AUTHORITY shall
19 engage the services of a consultant or consultants, hereinafter referred to as
20 the "CONSULTANT," to design and a contractor or contractors, hereinafter
I referred to as the "CONTRACTOR," to implement the PROJECT in
22 accordance with the PROJECT PLAN, attached as Exhibit "A" and made a
23 part hereof. The AUTHORITY shall be responsible for administering the
24 contracts) with the CONSULTANT and CONTRACTOR and shall give
25 notice to proceed to the CONSULTANT no later than
26 The notice to proceed date shall be extended if conditions exist beyond the
27 control of the AUTHORITY. One such condition would be the timely
28 obtaining of all necessary permits.
30 3.2 Approval of Contract and Scope of Work. The DISTRICT Project Manager
31 shall review and approve in writing the contract, including the scope of
32 work, between the AUTHORITY and the CONSULTANT and
33 CONTRACTOR to ensure conformance with the PROJECT PLAN. Such
34 approval shall not be arbitrarily withheld by the DISTRICT.
36 3.3 Permits. Prior to the disbursements of any funds by the DISTRICT for
37 CONSULTANT or CONTRACTOR costs, the AUTHORITY shall obtain
38 all other necessary permits from the appropriate agencies. When the
39 PROJECT requires obtaining any DISTRICT permit, the permitting
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applicant shall be the owner or authorized agent of the land to be occupied
or otherwise used by the PROJECT development unless the applicant has
3 power of eminent domain. If DISTRICT owned land is involved, or the
4 DISTRICT is a co-applicant, the Florida Department of Environmental
5 Protection shall be the permitting agency.
7 3.4 Review of Design. The DISTRICT Project Manager shall review the final
8 design to ensure that the major elements are in conformance with the
9 PROJECT PLAN.
11 3.5 Certification of BID Documents. All construction bid documents require
12 certification from a professional engineer representing the AUTHORITY
13 attesting that the bid documents are in conformance with the PROJECT
14 PLAN design.
16 3.6 Consultant and Contractor Selection. If required by law, the AUTHORITY
17 will select the CONSULTANT by the Competitive Consultants Negotiation
18 Act, otherwise the CONSULTANT shall be selected via a competitive bid
19 process. The AUTHORITY shall select the CONTRACTOR via a
20 competitive bid process. The DISTRICT shall reserve the right to review
'- and comment on all project proposals prior to their award. Nothing
22 contained herein shall create any obligation on the part of the DISTRICT to
23 defend any challenge brought by any offeror regarding the selection of the
24 CONSULTANT or CONTRACTOR.
26 3.7 District Recognition. The AUTHORITY shall develop a public awareness
27 program to announce and promote the PROJECT, subject to written
28 DISTRICT approval. Acknowledgment of partial funding assistance by the
29 DISTRICT and the aforementioned basin boards will be integral to the
30 public awareness effort. At a minimum, the public awareness effort will
31 include press releases at the initiation and completion of the PROJECT and
32 signage at the PROJECT site. The signage at the PROJECT site shall
33 include recognition of funding by the DISTRICT and the aforementioned
34 basin boards. All signage must meet with DISTRICT written approval as to
35 quantity, form, content and location, and must be in accordance with local
36 sign ordinances.
38 3.8 Completion Dates. The AUTHORITY shall commence construction on the
39 PROJECT by and shall substantially complete the
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PROJECT by "Substantially complete" shall have
2 the same meaning as provided in the contract between the AUTHORITY
3 and the CONTRACTOR, as referenced in Section 3.2 above. If the
4 AUTHORITY does not complete said work within aforementioned time
5 frames, the AUTHORITY may be required to reimburse the DISTRICT up
6 to the full amount paid to the AUTHORITY by the DISTRICT. The above
7 time frame shall be extended if conditions exist beyond the control of the
8 AUTHORITY or DISTRICT. Such agreement shall not be arbitrarily
9 withheld by the DISTRICT or AUTHORITY.
11 4. REPORTS. The AUTHORITY shall submit quarterly status reports in writing to
12 the DISTRICT's project manager beginning on January 1, and until the
13 PROJECT is completed in accordance with this agreement.
15 5. PROJECT RECORDS AND DOCUMENTS. The AUTHORITY will permit the
16 DISTRICT, upon request, to examine all PROJECT records, and the right to audit
17 any PROJECT books, documents and papers during the PROJECT or following
18 completion of the PROJECT. The AUTHORITY shall maintain the records,
19 books, documents and papers for at least three (3) years following completion of
20 the PROJECT. The AUTHORITY recognizes and agrees that the DISTRICT is
Subject to the Public Records provisions of Chapter 119, Florida Statutes, and that
22 all documents, papers, letters and other materials made or received by the
23 AUTHORITY in conjunction with the PROJECT are subject to said provisions.
25 6. FUNDING
27 6.1 Amount. The estimated total cost of the PROJECT is
29 The DISTRICT shall fund the "Eligible" PROJECT costs, as defined in
30 Paragraph 6.2 below, up to a maximum amount of
31 The AUTHORITY shall fund the remaining PROJECT costs. The
32 DISTRICT funding is split between the Governing Board and the
33 Basin Board, and is anticipated to be over
34 Fiscal Years, If Federal funds are received
35 by the AUTHORITY, then the District's payment obligation shall be
36 reduced by an amount equivalent to of such funds. The table below
37 reflects anticipated future years funding by the DISTRICT's Governing and
38 Basin Boards:
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Governing Board NWSI FY
Governing Board NWSI FY
Basin Board FY
Basin Board FY
Basin Board FY
6.2 "Eligible" PROJECT Costs. "Eligible" PROJECT costs shall mean
Engineering, Construction and Permitting (except Water Use Permitting)
(Insert appropriate project components along with description and
6.3 Funding Condition. The DISTRICT's performance and payment obligation
for each fiscal year is contingent upon an annual appropriation for the
PROJECT by the DISTRICT's Governing Board. Upon the Governing
Board's final approval of the DISTRICT's annual budget for each year this
agreement is in effect, such budgeted funds shall be encumbered for use
under this agreement in accordance with the terms and conditions herein.
The PROJECT is budgeted cooperatively through the GOVERNING
BOARD of the DISTRICT in Fiscal Year for
and the BASIN of
the DISTRICT in Fiscal Year for
remaining funds up to the DISTRICT's funding commitment is anticipated
to be available, contingent upon DISTRICT approval, in Fiscal Years
6.4 Payment Method. Within thirty (30) days after receiving the
AUTHORITY's invoice, the DISTRICT shall pay the AUTHORITY for the
"Eligible" costs properly incurred and clearly set forth in an invoice
provided by the AUTHORITY. The AUTHORITY shall submit invoices to
the DISTRICT on a monthly basis. Each invoice shall include the
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r. following items: Proper documentation, a cover letter stating the amount of
payment being requested, task(s) involved, copies of related requests for
3 payment from the AUTHORITY to other funding agencies for the
4 PROJECT, and copies of invoices and other supporting documentation from
5 vendors to the AUTHORITY. Any invoices that include CONSULTANT
6 labor costs shall detail the man-hour(s) and hourly rates) involved.
7 Invoices from the AUTHORITY to the DISTRICT are to be sent to:
9 Accounts Payable Section
10 Southwest Florida Water Management District
11 Post Office Box 1166
12 Brooksville, Florida 34605-1166
14 6.5 Withholding Payment. If the AUTHORITY fails to perform its obligations
15 in accordance with this agreement and in accordance with generally-
16 accepted professional standards and in accordance with the project scope of
17 work and budget, the DISTRICT, upon giving notice to the AUTHORITY
18 of such failure, shall have the right to cease further payments, shall require
19 the AUTHORITY to remedy such failure within a reasonable period of time
20 and shall hold the AUTHORITY responsible for any additional costs
incurred in making said remedy.
23 6.6 Cash Flow Reserve. Notwithstanding the requirements of this Section, the
24 DISTRICT recognizes the AUTHORITY may need to establish a reserve of
25 funds to meet cash flow requirements until such time as the project becomes
26 further financed through the AUTHORITY's sale of revenue bonds. If the
27 DISTRICT determines that such a reserve is warranted, the DISTRICT will
28 consider providing an advance of funds not to exceed
29 dollars ($ ). Disbursement by the
30 AUTHORITY of said advance funds shall be subject to the terms and
31 conditions of this contract and may only be used to pay "Eligible"
32 PROJECT costs.
34 6.7 Accounting and Replenishment of Cash Flow Reserve. The AUTHORITY
35 shall provide the DISTRICT with a monthly accounting of all funds
36 expended from the Cash Flow Reserve. Such accounting must include
37 itemized statements equivalent to invoices required under this Agreement.
38 The AUTHORITY may request replenishment of the funds in Cash Flow
39 Reserve. Requests for replenishment should follow the payment method as
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described in Section 6.4 of this agreement. The AUTHORITY shall
indicate in the cover letter the time period covering the request (date
3 beginning and date ending), beginning balance of the Cash Flow Reserve as
4 of the beginning date, interest earned for time period covering request,
5 invoices paid in part or total, and ending balance of Cash Flow Reserve for
6 time period of request. Requests shall be sequentially numbered and shall
7 cover continuous time periods. Interest, if any, earned on idle funds of the
8 Cash Flow Reserve shall be used to replenish the fund.
10 6.8 Final Accounting. Within three months of the completion of the project, the
11 AUTHORITY will provide a final accounting of expenditures showing that
12 the District's funds spent by the AUTHORITY went toward "Eligible"
13 PROJECT costs as described in Paragraph 6.2 above.
15 7. PROJECT ABANDONMENT OR DEVIATION. It shall be considered a breach
16 of this agreement if the AUTHORITY abandons or significantly modifies the
17 PROJECT PLAN without the consent of the DISTRICT. If the DISTRICT (in its
18 sole discretion) determines that such a breach has occurred, then the DISTRICT
19 will give the AUTHORITY written notice of the breach and allow the
20 AUTHORITY thirty (30) days to remedy the breach. If the AUTHORITY fails to
remedy within this time period, then this Agreement shall automatically terminate
22 and the AUTHORITY shall repay to the DISTRICT all monies paid or advanced
23 under this agreement. The term "significantly modifies" shall mean modified in an
24 important and meaningful manner. The DISTRICT shall not act in an arbitrary or
25 capricious manner.
27 8. INDEMNIFICATION. To the extent authorized by law, the AUTHORITY shall
28 defend, indemnify, and save harmless the DISTRICT and its agents, employees
29 and officers from all actions, causes, claims, demands, judgements, losses,
30 payments, recoveries and suits of every kind arising out of, or resulting from, any
31 act or omission of the AUTHORITY or its agents, employees, or subcontractors in
32 relation to this agreement. However, nothing in this agreement shall be construed
33 as a waiver of sovereign immunity under federal or Florida law.
34 9. THIRD PARTY BENEFICIARIES. Nothing in this agreement shall be construed
35 to benefit any person or entity not a party to this agreement.
37 10. PROJECT MANAGERS. The DISTRICT and the AUTHORITY shall each
38 designate an employee as its Project Manager for the purposes of giving directions
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and maintaining coordination. Each party shall notify the other in a timely manner
of every successor to the original Project Manager.
4 11. NOTICES. Any notices pursuant to this agreement shall be sent to the other party
5 at the address shown below, or such later address of which the sending party has
6 received notice pursuant to this Section.
8 As to AUTHORITY: West Coast Regional Water Supply Authority
9 2535 Landmark Drive, Suite 211
10 Clearwater, Florida 33761
12 As to DISTRICT: Contracts Administration
13 Southwest Florida Water Management District
14 2379 Broad Street
15 Brooksville, Florida 34609-6899
17 12. GOVERNING LAW AND COMPLIANCE. This agreement and all actions taken
18 pursuant thereto are governed by the laws of the State of Florida. The
19 AUTHORITY shall abide by and assist the DISTRICT in satisfying all applicable
20 federal, state and local laws, rules, regulations and guidelines, including but not
limited to the Americans with Disability Act (ADA), relative to performance under
22 this agreement. The AUTHORITY shall not discriminate against any employee or
23 applicant for employment because of race, color, religion, sex, handicap, disability,
24 marital status or national origin.
26 13. INSURANCE. The AUTHORITY shall submit a letter to the DISTRICT
27 providing documentation that the AUTHORITY is insured pursuant to the
30 A. The AUTHORITY is a public corporation of the State of Florida. As such
31 it may be insured under the Florida Casualty Insurance Risk Management
32 Trust Fund (FCIRMF) or it may be otherwise insured or self-insured for
33 liability coverage. The AUTHORITY shall maintain in force during the
34 entire term of the agreement general liability and vehicle liability coverage.
35 Liability is limited pursuant to Section 768.28 and/or Chapter 284, Part II,
36 Florida Statutes.
38 B. The AUTHORITY shall maintain in force workers' compensation benefits
39 in accordance with Florida Statue 440 for the duration of the agreement.
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C. The AUTHORITY shall provide on an annual basis, throughout the term of
2 the agreement, documentation to the DISTRICT from the (FCIRMF), from
3 the insurance carrier or on AUTHORITY letterhead that the above
4 insurance is in effect.
6 D. The DISTRICT shall receive thirty (30) days prior written notice of any
7 material change, cancellation or claim that would affect the required
10 E. Certificates of insurance general liability, vehicle liability and workers'
11 compensation shall also be required from any contractor or consultant who
12 performs services for the AUTHORITY pursuant to this agreement.
14 14. CONTRACT PERIOD. This agreement shall commence on the day of execution
15 and shall remain in effect until unless completed or
16 terminated earlier, or extended in writing by the DISTRICT.
18 15. ASSIGNMENT. The AUTHORITY may not assign or transfer its rights or
19 obligations under this agreement without prior written consent of the DISTRICT.
16. RELEASE OF INFORMATION. The AUTHORITY shall promptly notify the
22 DISTRICT of any publication or release of any information relative to
23 performance under this agreement.
25 17. MODIFICATIONS. This agreement constitutes the entire agreement between the
26 parties and may be amended only in writing, signed by all parties.
28 18. TERMINATION. Upon either party's default under this agreement, the party so
29 defaulting shall remedy such default within 90 days after receiving notice of
30 default from the other party. If the defaulting party does not remedy the default
31 within this time period, and the default is not caused by a default of the other party,
32 then the non-defaulting party may terminate this agreement by giving the
33 defaulting party written notice of termination. Termination shall be effective on
34 the fifteenth (15th) day after the defaulting party's receipt of the notice of
38 IN WITNESS WHEREOF, the lawful representatives of the parties hereto have executed
39 this agreement on the day and year first noted above.
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SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
Federal ID #59-0965067
WEST COAST REGIONAL WATER SUPPLY AUTHORITY
Federal ID #59-1020868
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