Item 8C AGENDA ITEM # 8C
AUGUST 23, 2010
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Agreement with St. Johns River Water Management District for Grant Funds
for TMDL Improvements
SUBMITTED BY: Donna Kaluzniak, Utility Director
DATE: August 11, 2010
BACKGROUND: As part of the Lower St. Johns River Funding Initiative to restore and enhance
the river, the St. Johns River Water Management District (SJRWMD) has authority to allocate grant
funding for projects to upgrade wastewater facilities to meet or exceed the Total Maximum Daily
Load (TMDL).
A grant of $1,000,000 is allocated for the City of Atlantic Beach TMDL Project, and a signed
agreement must be sent to the SJRWMD prior to August 30, 2010 to meet their funding deadline. The
grant is for the project to phase out the Buccaneer WWTP, construct the force main and upgrade
WWTP #1 to meet advanced treatment standards for nitrogen.
BUDGET: Construction costs for the Buccaneer Phaseout and WWTP #1 Upgrade are estimated at
$9.4 million. The grant will reduce the City's costs by $1,000,000.
RECOMMENDATION: Approve the Agreement with the St. Johns River Water Management
District for the $1,000,000 grant for the Atlantic Beach TMDL Project and authorize the City
Manager to sign the Agreement.
ATTACHMENTS: 1. Agreement from St. Johns River Water Management District
REVIEWED BY CITY MANAGER:
AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
COST - SHARING AGREEMENT
BETWEEN THE
ST. JOHNS RIVER WATER MANAGEMENT DISTRICT
AND CITY OF ATLANTIC BEACH PUBLIC WORKS DEPARTMENT
FOR THE LOWER ST. JOHNS RIVER BASIN
REUSE AND TREATMENT PROGRAM
THIS AGREEMENT is entered into by and between the GOVERNING BOARD of the ST.
JOHNS RIVER WATER MANAGEMENT DISTRICT ( "the District "), whose address is 4049 Reid Street,
Palatka, Florida 32177, and CITY OF ATLANTIC BEACH PUBLIC WORKS DEPARTMENT
( "Recipient "), whose address is 1220 Sandpiper Lane, Atlantic Beach, Florida 32233. All references to the
parties hereto include the parties, their officers, employees, agents, successors, and assigns.
WHEREAS, the waters of the state of Florida are among its basic resources and it has been
declared to be the policy of the Legislature to promote the conservation, development, and proper
utilization of surface and ground water; and
WHEREAS, pursuant to chapter 373, Fla. Stat., the District is responsible for the management of
water resources within its geographical area; and
WHEREAS, the District's Governing Board has established the Lower St. Johns River (LSJR)
Basin Reuse and Treatment Program ( "the Program ") to support efforts that contribute toward the
improvement of water quality by achieving pollutant load reduction goals (PLRGs) or total maximum
daily load (TMDL) allocations for identified priority pollutants; and
WHEREAS, the District may also consider projects that protect or preserve water quality in
designated Surface Water Improvement and Management water bodies; and
WHEREAS, wastewater reuse reduces the flow of wastewater effluent into the St. Johns River,
while also meeting the District's water supply planning objectives relating to the development of
alternative water supplies that reduce the need for groundwater withdrawals; and
WHEREAS, the Florida Legislature has provided additional funding support for the Program
through the District's "Lower St. Johns River Basin Initiative," which are disbursed by the State of
Florida Department of Environmental Protection from the Ecosystem Management and Restoration Trust
Fund; and
WHEREAS, the parties have agreed to jointly fund the following project to benefit the water
resources in accordance with the funding formula further described in the Statement of Work, Attachment
A (hereafter "the Project "):
The Project consists of constructing wastewater treatment upgrades to Wastewater Treatment
Plant (WWTP) No. 1 to advanced wastewater treatment standards to remove nitrogen, phase out of
WWTP No. 2, and construction of a force main to pump wastewater from WWTP No. 2 to WWTP No. 1.
After the Project is complete the nitrogen concentration in wastewater discharged from the plant will be
significantly reduced. The performance -based goal of this project is to meet and exceed the Recipient's
TMDL requirements (a reduction of at least 61,791 lbs /yr nitrogen) through treatment plant upgrades to
include advanced nutrient removal.
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AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
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NOW, THEREFORE, in consideration of the aforesaid premises, and the funding assistance
hereinafter specified, Recipient agrees to perform and complete the activities provided for in the Statement
of Work, Attachment A. Recipient shall complete the Project in conformity with the contract documents
and all attachments and other items incorporated by reference herein. This Agreement consists of all of the
following documents: (1) Agreement, (2) Attachment A- Statement of Work; and (3) Attachment B -
Funded Projects and Expected Performance; (4) all attachments, if any. The parties hereby agree to the
following terms and conditions.
1. .TERM; WITHDRAWAL OF OFFER
.(a) The term of this Agreement is from the date upon which the last party has dated and
executed the same ( "Effective Date ") until September 30, 2014 ( "Completion Date ").
Recipient shall not commence the Project until any required submittals are received and
approved. Recipient shall commence performance within fifteen (15) days after the
Effective Date and shall complete performance in accordance with the time for
completion stated in the Statement of Work. Time is of the essence for every aspect of
this Agreement, including any time extensions. All provisions of this Agreement that by
their nature extend beyond the Completion Date shall survive the termination or
expiration of this Agreement.
(b) This Agreement constitutes an offer until authorized, signed and returned to the District by
Recipient. This offer terminates sixty (60) days after receipt by Recipient.
2. DELIVERABLES. Recipient shall fully implement the Project, as described the Statement of
Work, Attachment A. Recipient is responsible for the professional quality, technical accuracy,
and timely completion of the Project. Both workmanship and materials shall be of good quality.
Unless otherwise specifically provided for herein, Recipient shall provide and pay for all
materials, labor, and other facilities and equipment necessary to complete the Project. The
District's Project Manager shall make a final acceptance inspection of the Project when
completed and finished in all respects. Upon satisfactory completion of the Project, the District
will provide Recipient a written statement indicating that the Project has been completed in
accordance with this Agreement. Acceptance of the final payment by Recipient shall constitute a
release in full of all claims against the District arising from or by reason of this Agreement.
3. OWNERSHIP OF DELIVERABLES. Unless otherwise provided herein, the District does not
assert an ownership interest in any of the deliverables under this Agreement.
4. AMOUNT OF FUNDING.
(a) For satisfactory completion of the Project, the District shall pay Recipient no more than
fifty percent (50 %) of the total cost of the Project, but in no event shall the District cost -
share exceed $1,000,000.00. The District cost -share is not subject to modification based
upon price escalation in implementing the Project during the term of this Agreement.
Recipient shall be responsible for payment of all costs necessary to ensure completion of
the Project. If Recipient's cost for the Work exceeds the estimated cost, Recipient may
elect to complete the Project at its expense or discontinue the Project and return all funds
provided hereunder to the District. Recipient shall notify the District's Project Manager
in writing upon receipt of any additional external funding for the Project not disclosed
prior to execution of this Agreement.
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AGENDA ITEM # 8C
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(b) Funding may be only used for construction costs associated with the Project. It may not
be used for the research, design, engineering, and permitting aspects of the Project.
5. PAYMENT OF INVOICES
(a) Recipient shall submit quarterly itemized invoices based upon the actual percentage of
the work performed by one of the following two methods: (1) by mail to the St. Johns
River Water Management District, Director, Division of Financial Management, 4049
Reid Street, Palatka, Florida 32177, or (2) by e -mail to .acctpay @sjrwmd.com.. The
invoice shall be submitted in detail sufficient for proper pre -audit and post -audit review.
Recipient shall be reimbursed for _one hundred_ percent (100 %) of approved costs until
the not -to- exceed amount of the District's cost -share has been expended. Approved costs
are those costs that do not exceed 50% of actual allowable expenditures for the Project. If
necessary for audit purposes, Recipient shall provide additional supporting information as
required to document invoices.
(b) End of District Fiscal Year Reporting. The District's fiscal year ends on September 30.
Irrespective of the invoicing frequency, the District is required to account for all
encumbered funds at that time. When authorized under the Agreement, submittal of an
invoice as of September 30 satisfies this requirement. The invoice shall be submitted no
later than October 30. If the Agreement does not authorize submittal of an invoice as of
September 30, Recipient shall submit, prior to October 30, a description of the additional
work on the Project completed between the last invoice and September 30, and an
estimate of the additional amount due as of September 30 for such Work. If there have
been no prior invoices, Recipient shall submit a description of the work completed on the
Project through September 30 and a statement estimating the dollar value of that work as
of September 30.
(c) Final Invoice. The final invoice must be submitted no later than 45 days after the
Completion Date; provided, however, that when the Completion Date corresponds with
the end of the District's fiscal year (September 30), the final invoice must be submitted
no later than 30 days after the Completion Date. Final invoices that are submitted after
the requisite date shall be subject to a penalty of 10 percent of the invoice. This
penalty may be waived by the District, in its sole judgment and discretion, upon a
showing of special circumstances that prevent the timely submittal of the final
invoice. Recipient must request approval for delayed submittal of the final invoice
not later than ten (10) days prior to the due date and state the basis for the delay.
.(d) All invoices shall include the following information: (1) District contract number; (2)
District encumbrance number; (3) Recipient's name and address (include remit address, if
necessary); (4) Recipient's invoice number and date of invoice; (5) District Project
Manager; (6) Recipient's Project Manager; (7) supporting documentation as to cost
and /or Project completion (as per the cost schedule and other requirements of the
Statement of Work; (8) Progress Report (if required); (9) Diversity Report (if otherwise
required herein). Invoices that do not correspond with this paragraph shall be returned
without action within twenty (20) business days of receipt, stating the basis for rejection.
Payments shall be made within forty -five (45) days of receipt of an approved invoice.
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.(e) Travel expenses. If the cost schedule for this Agreement includes a line item for travel
expenses, travel expenses shall be drawn from the project budget and are not otherwise
compensable. If travel expenses are not included in the cost schedule, they are a cost of
providing the service that is borne by Recipient and are only compensable when
specifically approved by the District as an authorized District traveler. In such instance,
.travel expenses must be submitted on District or State of Florida travel forms and shall
be paid pursuant to District Administrative Directive 2000 -02.
(f) Payments withheld. The District may withhold or, on account of subsequently
discovered evidence, nullify, in whole or in part, any payment to such an extent as may
be necessary to protect the District from loss as a result of: (1) defective work not
remedied; (2) failure to maintain adequate progress in the Project; (3) any other material
breach of this Agreement. Amounts withheld shall not be considered due and shall not be
paid until the ground(s) for withholding payment have been remedied.
6. LIABILITY AND INSURANCE. Each party is responsible for all personal injury and property
damage attributable to the negligent acts or omissions of that party, its officers, employees and
agents. Nothing contained herein shall be construed or interpreted as denying to any party any
remedy or defense available under the laws of the state of Florida, nor as a waiver of sovereign
immunity of the state of Florida beyond the waiver provided for in section 768.28, Fla. Stat., as
amended. Each party shall acquire and maintain throughout the term of this Agreement such liability,
workers' compensation, and automobile insurance as required by their current rules and regulations.
7. FUNDING CONTINGENCY. This Agreement is contingent upon funding availability, which
may include a single source or multiple sources, including, but not limited to: (1) ad valorem tax
revenues appropriated by the District's Governing Board; (2) annual appropriations by the Florida
Legislature, or (3) appropriations from other agencies or funding sources. Agreements that extend
for a period of more than one Fiscal Year are subject to annual appropriation of funds in the sole
discretion and judgment of the District's Governing Board for each succeeding Fiscal Year.
Should the Project not be funded, in whole or in part, in succeeding Fiscal Years, the District
shall so notify Recipient and this Agreement shall be deemed terminated for convenience five (5)
days after receipt of such notice, or within such additional time as the District may allow. For the
purpose of this Agreement, "Fiscal Year" is defined as the period beginning on October 1 and
ending on September 30.
8. PROJECT MANAGEMENT
(a) The Project Managers listed below shall be responsible for overall coordination and
management of the Project. Either party may change its Project Manager upon three (3)
business days prior written notice to the other party. Written notice of change of address
shall be provided within five (5) business days. All notices shall be in writing to the
Project Managers at the addresses below and shall be sent by one of the following
methods: (1) hand delivery; (2) U.S. certified mail; (3) national overnight courier; (4) e-
mail or, (5) fax. Notices via certified mail are deemed delivered upon receipt. Notices via
overnight courier are deemed delivered one (1) business day after having been deposited
with the courier. Notices via e -mail or fax are deemed delivered on the date transmitted
and received.
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AGENDA ITEM if 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
DISTRICT. RECIPIENT
Derek Busby, Project Manager Donna Kaluzniak, Project Manager
St. Johns River Water Management District City of Atlantic Beach Public Works
4049 Reid Street Dept.
Palatka, Florida 32177 1220 Sandpiper Lane
Phone: (386) 329 -4459 Atlantic Beach, Florida 32233
E- mail:.dbusby @sjwmd.com. Phone: (904) 270 -2535
E- mail:.dkaluzniak @coab.us.
(b) The District's Project Manager shall have sole responsibility for transmitting instructions,
receiving information, and communicating District policies and decisions regarding all
matters pertinent to performance of the Project, and may approve minor deviations in the
Project that do not affect the District cost -share or Completion Date or otherwise
significantly modify the terms of the Agreement.
9. PROGRESS REPORTS AND PERFORMANCE MONITORING
(a) Progress Reports. Recipient shall provide to the District quarterly project update /status
reports by September 1 December 1"; March 1s and June 1s of each year. Reports will
provide detail on progress of the Project and outline any potential issues affecting
completion or the overall schedule. Reports may be submitted in any form agreed to by
District's Project Manager and Recipient, and may include emails, memos, and letters. In
addition to quarterly reports, Recipient shall provide the District an annual report regarding
the efforts being made and accomplishments in obtaining customer agreements to accept
reclaimed water. The report shall include, at a minimum: (1) an overview of the status of
the connection of new customers to the reclaimed water system being constructed as part
of the Work; (2) the capacity of those connections; (3) the estimated amount of reclaimed
water use by these customers; (4) the amount of nitrogen reduction accomplished as a
result of this reclaimed water use; (5) any problems or issues encountered and what
Recipient plans to do to resolve them; and (6) any significant changes in the Work as
originally planned.
(b) Performance Monitoring. For as long as the Project is operational, the District shall have
the right to inspect the operation of the Project during normal business hours upon
reasonable prior notice. Recipient shall make available to the District any data that is
requested pertaining to performance of the Project.
10. FAILURE TO COMPLETE PROJECT.
(a) Should Recipient fail to complete the Project, Recipient shall refund to the District all of the
funds provided to Recipient pursuant to this Agreement. However, the District, in its sole
judgment and discretion, may determine that Recipient has failed to complete the Project due
to circumstances that are beyond Recipient's control, or due to a good faith determination that
the Project is no longer environmentally or economically feasible. In such event, the District
may excuse Recipient from the obligation to return funds provided hereunder. If the Project
has not been completed within 30 days after the Completion Date, Recipient shall provide the
District with notice regarding its intention as to completion of the Project. The parties shall
discuss the status of the Project and may mutually agree to revise the Completion Date or the
scope of the Project. Failure to
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AUGUST 23, 2010
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complete the Project within 90 days after the Completion Date shall be deemed to
constitute failure to complete the Project for the purposes of this provision.
(b) In the event the Project constitutes a portion of the total functional project, this paragraph
shall apply in the event the total functional project is not completed. In such event, the
90 -day timeframe provided herein shall commence upon the date scheduled for
completion of the total functional project at the time of execution of this Agreement,
unless extended by mutual agreement of the parties.
(c) This paragraph shall survive the termination or expiration of this Agreement.
11. TERMINATION
(a) Termination for Default. If Recipient materially fails to fulfill its obligations under this
Agreement, including any specific milestones established herein, the District shall provide
Recipient written notice of the deficiency by forwarding a Notice to Cure, citing the specific
nature of the breach. Recipient shall have thirty (30) days to cure the breach. If Recipient
fails to cure the breach within the thirty (30) day period, the District shall issue a
Termination for Default Notice and this Agreement shall be terminated upon receipt or said
notice. In such event, Recipient shall refund to the District all funds provided to Recipient
pursuant to this Agreement within thirty (30) days of such termination. The District may
also terminate this Agreement upon ten (10) days written notice in the event any of material
misrepresentations in the Project Proposal.
(b) Termination for Convenience. The District may terminate this Agreement at any time for
convenience upon sixty (60) calendar days prior written notice to Recipient. Upon receipt of
notice, Recipient shall place no further orders for materials, equipment, services, or
facilities, for which reimbursement would otherwise be sought. Recipient shall also make
every reasonable effort to cancel, upon terms satisfactory to the District, all orders or
subcontracts related to the Project for which reimbursement would otherwise be sought.
In the event of such termination, Recipient shall be compensated for all work performed
pursuant to this Agreement prior to the effective date of termination.
ADDITIONAL PROVISIONS (Alphabetical)
12. ASSIGNMENT. Recipient shall not assign this Agreement, or any monies due hereunder,
without the District's prior written consent. Recipient is solely responsible for fulfilling all work
elements in any contracts awarded by Recipient and payment of all monies due. No provision of
this Agreement shall create a contractual relationship between the District and any of Recipient's
contractors or subcontractors.
13. AUDIT; ACCESS TO RECORDS; REPAYMENT OF FUNDS.
(a) Maintenance of Records. Recipient shall maintain its books and records such that receipt
and expenditure of the funds provided hereunder are shown separately from other
expenditures in a format that can be easily reviewed. Recipient shall keep the records of
receipts and expenditures, copies of all reports submitted to the District, and copies of all
invoices and supporting documentation for at least three (3) years after expiration of this
Agreement. In accordance with generally accepted governmental auditing standards, the
District shall have access to and the right to examine any directly pertinent books and other
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records involving transactions related to this Agreement. In the event of an audit, Recipient
shall maintain all required records until the audit is completed and all questions are
resolved. Recipient will provide proper facilities for access to and inspection of all
required records.
(b) Repayment of Funds. District funding shall be subject to repayment after expiration of this
Agreement if, upon audit examination, the District finds any of the following: (1) Recipient
has spent funds for purposes other than as provided for herein; (2) Recipient has failed to
perform a continuing obligation of this Agreement; (3) Recipient has received duplicate
funds from the District for the same purpose; and/or (4) Recipient has received more than
100% contributions through cumulative public agency cost -share funding.
14. CIVIL RIGHTS. Pursuant to chapter 760, Fla. Stat., Recipient shall not discriminate against any
employee or applicant for employment because of race, color, religion, sex, or national origin,
age, handicap, or marital status.
15. DISPUTE RESOLUTION. Recipient is under a duty to seek clarification and resolution of any
issue, discrepancy, or dispute involving performance of this Agreement by submitting a written
statement to the District's Project Manager no later than ten business (10) days after the
precipitating event. If not resolved by the Project Manager, the Project Manager shall forward the
request to the District's Office of General Counsel, which shall issue a written decision within ten
(10) business days of receipt. This determination shall constitute final action of the District and
shall then be subject to judicial review upon completion of the Project.
16. DIVERSITY REPORTING. The District is committed to the opportunity for diversity in the
performance of all cost - sharing agreements, and encourages Recipient to make a good faith effort
to ensure that women and minority -owned business enterprises (W/MBE) are given the
opportunity for maximum participation as contractors. The District will assist Recipient by
sharing information on W /MBEs. Recipient shall provide with each invoice a report describing:
(1) the company names for all W /MBEs; (2) the type of minority, and (3) the amounts spent with
each during the invoicing period. The report will also denote if there were no W /MBE
expenditures.
17. FLORIDA SINGLE AUDIT ACT
(a) Applicability. The Florida Single Audit Act (FSAA), section 215.97, Fla. Stat., applies
to all sub - recipients of state financial assistance, as defined in section 215.97(1)(q), Fla.
Stat., awarded by the District through a project or program that is funded, in whole or in
part, through state financial assistance to the District. In the event Recipient expends a
total amount of state financial assistance equal to or in excess of $500,000 in any fiscal
year of such Recipient, Recipient must have a state single or project - specific audit for
such fiscal year in accordance with section 215.97, Fla. Stat.; applicable rules of the
Department of Financial Services; and Chapters 10.550 (local governmental entities) or
10.650 (nonprofit and for - profit organizations), Rules of the Auditor General. In
determining the state financial assistance expended in its fiscal year, Recipient shall
consider all sources of state financial assistance, including state financial assistance
received from the District, other state agencies, and other non -state entities. State
financial assistance does not include Federal direct or pass- through awards and resources
received by a non -state entity for Federal program matching requirements. Recipient is
solely responsible for complying with the FSAA. If Recipient expends less than $500,000
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in state financial assistance in its fiscal year, an audit conducted in accordance with the
provisions of section 215.97, Fla. Stat., is not required. In such event, should Recipient
elect to have an audit conducted in accordance with section 215.97, Fla. Stat., the cost of
the audit must be paid from the non -state entity's resources (i.e., Recipient's resources
obtained from other than State entities).
(b) Program Information. This Agreement involves the disbursement of state funding by
the Florida Department of Environmental Protection in the amount of $1,000,000.
Funding is provided under the State — Ecosystems Management Trust Fund. The Florida
Catalog of Financial Assistance (CSFA) number for this program is CFSA No. 37.039.
The District is providing a funding match of $1,000,000.00.
(c) Additional Information. For information regarding the state program under the above
CSFA number, Recipient should access the Florida Single Audit Act website located at
https:// apps.fldfs.com/fsaa/catalog.aspx for assistance. The following websites may be
accessed for additional information: Legislature's Website at .http: / /www.leg.state.fl.us /.,
State of Florida's website at .http: / /myflorida.com, District of Financial Services' Website
at http: / /www.fldfs.com/ and the Auditor General's Website at
http://www.myflorida.com/audgen/.
(d) Allowable Costs. Recipient may only charge allowable costs to this Agreement, as
otherwise provided herein. Any balance of unobligated cash that have been advanced or
paid that is not authorized to be retained for direct program costs in a subsequent period
must be returned to the District.
(e) Audit Requirements. Recipient shall ensure that the audit complies with the
requirements of section 215.97(7), Fla. Stat. This includes submission of a financial
reporting package as defined by section 215.97(2), Fla. Stat., and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for - profit organizations), Rules of the
Auditor General. Recipient shall comply with the program requirements described in the
Florida Catalog of State Financial Assistance (CSFA)
[https: // apps .fldfs.com /fsaa/catalog.aspx]. The services /purposes for which the funds are
to be used are included in the Statement of Work.
(f) Financial Reporting. Recipient shall provide the District with a copy of any reports,
management letters, or other information required to be submitted in accordance with
Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for - profit
organizations), Rules of the Auditor General, as applicable, no more than 20 days after its
preparation. Recipient shall indicate the date the reporting package was delivered to
Recipient in correspondence accompanying the reporting package. This information shall
be directed to: St. Johns River Water Management District, Mr. Greg Rockwell, Director,
Division of Financial Management, 4049 Reid Street, Palatka, FL 32177. A copy of the
report shall also be provided to the Auditor General's Office at the following address:
State of Florida Auditor General, Room 401, Claude Pepper Building, 111 West Madison
Street, Tallahassee, Florida 32399 -1450.
(g) Monitoring. In addition to reviews of audits conducted in accordance with section
215.97, Fla. Stat., as revised, monitoring procedures may include, but not be limited to,
on -site visits by District staff, limited scope audits, and /or other procedures. Recipient
agrees to comply and cooperate with any monitoring procedures /processes deemed
appropriate by the District. In the event the District determines that a limited scope audit
of Recipient is appropriate, Recipient agrees to comply with any additional instructions
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provided by the District to Recipient regarding such audit. Recipient agrees to comply
and cooperate with any inspections, reviews, investigations, or audits deemed necessary
by the District's Inspector General or the state Chief Financial Officer or Auditor
General.
(h) Examination of Records. In addition to the District's audit rights otherwise provided for
herein, Recipient shall permit the District or its designated agent, the state awarding
agency, the Department of Financial Services, the state's Chief Financial Officer and the
state's Auditor General to examine Recipient's financial and non - financial records to the
extent necessary to monitor Recipient's use of state financial assistance and to determine
whether timely and appropriate corrective actions have been taken with respect to audit
findings and recommendations, which may include onsite visits and limited scope audits.
(i) Records Retention. Notwithstanding any other provision of this Agreement to the
contrary, Recipient shall retain sufficient records demonstrating its compliance with the
terms of this Agreement for a period of five (5) years from the date the audit report is
issued, and shall allow the District, or its designee, state Chief Financial Officer, or
Auditor General access to such records upon request. Recipient shall ensure that audit
working papers are made available for such access for a period of three years from the
date the audit report is issued, unless extended in writing by the District.
18. GOVERNING LAW, VENUE, ATTORNEY'S FEES, WAIVER OF RIGHT TO JURY
TRIAL. This Agreement shall be construed according to the laws of Florida and shall not be
construed more strictly against one party than against the other because it may have been drafted
by one of the parties. As used herein, "shall" is always mandatory. In the event of any legal
proceedings arising from or related to this Agreement: (1) venue for any state or federal legal
proceedings shall be in Duval County; (2) each party shall bear its own attorney's fees, including
appeals; (3) for civil proceedings, the parties hereby consent to trial by the court and waive the
right to jury trial.
19. INDEPENDENT ENTITIES. The parties to this Agreement, their employees and agents, are
independent entities and not employees or agents of each other. Nothing in this Agreement shall
be interpreted to establish any relationship other than that of independent entities during and after
the term of this Agreement. Recipient is not a contractor of the District. The District is providing
cost -share funding as a cooperating governmental entity to assist Recipient in accomplishing the
Project. Recipient is solely responsible for accomplishing the Project and directs the means and
methods by which the Project is accomplished. Recipient is solely responsible for compliance
with all labor and tax laws pertaining to Recipient, its officers, agents, and employees.
20. INTEREST OF RECIPIENT. Recipient certifies that no officer, agent, or employee of the
District has any material interest, as defined in chapter 112, Fla. Stat., either directly or indirectly,
in the business of Recipient to be conducted hereby, and that no such person shall have any such
interest at any time during the term of this Agreement.
21. NON - LOBBYING. Pursuant to section 216.347, Fla. Stat., as amended, Recipient agrees that funds
received from the District under this Agreement shall not be used for the purpose of lobbying the
Legislature or any other state agency.
22. PERMITS. Recipient shall comply with all applicable federal, state and local laws and
regulations in implementing the Project and shall include this requirement in all subcontracts
pertaining to the Project. Recipient shall obtain any and all governmental permits necessary to
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23. implement the Project. Any activities not properly permitted prior to implementation or completed
without proper permits does not comply with this Agreement and shall not be approved for cost -
share funding.
24. PUBLIC RECORDS. Records of Recipient that are made or received in the course of
performance of the Project may be public records that are subject to the requirements of chapter
119, Fla. Stat. If Recipient receives a public records request, Recipient shall promptly notify the
District's Project Manager. Each party reserves the right to cancel this Agreement for refusal by
the other party to allow public access to all documents, papers, letters, or other material related
hereto and subject to the provisions of chapter 119, Fla. Stat., as amended.
25. RESERVATION OF REDUCTION CREDITS AND INELIGIBILITY FOR MEETING
BASIN MANAGEMENT ACTION PLAN (BMAP) ALLOCATION(S)
(a) When District ad valorem funds are provided, it is understood that the District intends to
reserve a percentage of the total Water Quality Trading Credits ( WQTCs) achieved
through efforts funded under this Agreement based on its prorated share of the project
costs in order to further accomplish its objectives in improving the water quality of the
Lower St. Johns River. The calculation of the District's share of the reduction amount is
based on the District's relative ad valorem contribution to the total project cost. Total
project costs include the sum of total construction and non - construction capital costs.
Construction costs are the sum of construction costs, land or right -of -way acquisition
costs, and excludes operation and maintenance costs. Non - construction capital costs
include contingency, engineering design, permitting, and administration directly
associated with the construction of the facilities.
(b) The WQTC reservation applies only to ad valorem funds. Such reduction credits will not
accrue to the Recipient and shall not be available for TMDL compliance or for sale as
water quality credits to other entities. Credits generated by portions of the Work
supported by other state funds, e.g. legislative funding, shall be available to the Recipient
according to conditions established by the Florida Department of Environmental
Protection.
(c) Arbitration. The parties shall negotiate in good faith to develop a methodology for
allocating WQTCs between the parties pursuant to the general principles described
above. In the event the parties are unable to reach agreement within 90 days after a
WQTC program becomes effective, the parties may elect to submit the matter to
arbitration before the American Arbitration Association by a group of three arbitrators.
Each party shall select one arbitrator and shall mutually agree upon a third arbitrator. In
the event the parties cannot so agree, the arbitrators selected by the parties shall select the
third arbitrator. The parties shall share equally in the costs of arbitration. The decision
reached by the arbitrators shall be binding upon the parties and shall be enforceable in
accordance with Florida law.
26. ROYALTIES AND PATENTS. Recipient certifies that the Project does not, to the best of its
information and belief, infringe on any patent rights. Recipient shall pay all royalties and patent
and license fees necessary for performance of the Project and shall defend all suits or claims for
infringement of any patent rights and save and hold the District harmless from loss to the extent
allowed by Florida law.
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AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
27. WATER CONSERVATION
(a) Water Conserving Rate Structure. A Recipient receiving funding through this
Agreement that operates a public water supply utility must develop a rate structure for water
customers in its service area that will: (1) promote the conservation of water; and (2)
promote the use of water from available alternative water supplies. Recipient, if operating a
public water supply utility, acknowledges that it either has a water conserving rate structure
in effect or will implement a water conserving rate structure within nine months after the
Effective Date. Failure to comply with this paragraph constitutes a material breach that shall
constitute a failure to complete the Project.
(b) Landscape Irrigation. Within 180 days of the effective date of this Agreement,
Recipient shall enact a landscape irrigation ordinance that fully implements the landscape
irrigation provisions in District Rule 40C- 2.042(2), Florida Administrative Code,
including adequate enforcement mechanisms, and that does not in any other manner
regulate the consumptive use of water. Within 270 days of the effective date of this
Agreement, Recipient shall rescind any other ordinance provision that regulates or
purports to regulate the consumptive use of water. The District may extend the applicable
time periods upon a showing of good cause, which determination shall be made by the
District in its sole discretion and judgment. In order to ensure that Recipient meets the
requirements of this paragraph, Recipient shall submit the draft ordinance to the District's
Project Manager for the District's review not less than 30 days prior to the first reading of
the ordinance, with a copy to the District's Governmental Affairs Manager, Office of
Communications and Governmental Affairs, 4049 Reid Street, Palatka, FL 32177 -2529.
Failure to comply with this provision shall constitute a material breach of this Agreement.
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AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
IN WITNESS WHEREOF, the St. Johns River Water Management District has caused this
Agreement to be executed on the day and year written below in its name by its Executive Director, and
Recipient has caused this Agreement to be executed on the day and year written below in its name by its
duly authorized representatives, and, if appropriate, has caused the seal of the corporation to be attached.
This Agreement may be executed in separate counterparts, which shall not affect its validity. Upon
execution, this Agreement constitutes the entire agreement of the parties, notwithstanding any
stipulations, representations, agreements, or promises, oral or otherwise, not printed or inserted herein.
This Agreement cannot be changed by any means other than written amendments referencing this
Agreement and signed by all parties.
ST. JOHNS RIVER WATER CITY OF ATLANTIC BEACH PUBLIC WORKS
MANAGEMENT DISTRICT DEPARTMENT
By: By:
Kirby B. Green III, Executive Director
Typed Name and Title
Date: Date:
APPROVED BY THE OFFICE
OF GENERAL COUNSEL
Attest:
Stanley J. Niego, Sr. Assistant General Counsel Typed Name and Title
ATTACHMENTS
Attachment A - Statement of Work
Attachment B - Funded Projects and Expected Performance
Page 12 of 15
AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
ATTACHMENT A - STATEMENT OF WORK (SOW)
City of Atlantic Beach Wastewater Treatment Project
I. Introduction/Background
The District has established Lower St. Johns River (LSJR) pollutant load reduction goals and the Florida
Department of Environmental Protection has adopted the nutrient Total Maximum Daily Loads (TMDLs).
In response to these regulatory initiatives, the District has been working toward facilitating efficient and
cost effective efforts to exceed the minimum nutrient reductions required by the TMDL allocations.
Reducing nutrient discharges to below TMDL levels will help assure the sustainable future health of the
LSJR.
During project evaluations, the District established the LSJR Reuse and Treatment Program to create
additional opportunities to significantly reduce nutrient loading to the LSJR from treated wastewater
through District -based cost -share agreements to increase the reuse of reclaimed water. This Project shall
reduce nitrogen loading to the LSJR while helping to meet long -term water supply needs.
II. Objective
The objective is to reduce wastewater effluent discharges to the Lower St. Johns River, which shall
reduce nutrient loadings in excess of the TMDL allocations.
III. Scope of Work
Recipient shall manage the engineering and construction of a wastewater treatment project scheduled for
construction in FY10 through FY12 (Exhibit B). The Project consists of constructing wastewater
treatment upgrades to Wastewater Treatment Plant (WWTP) No. 1 to advanced wastewater treatment
standardsto remove nitrogen, phase out WWTP No. 2, and construction of a force main to pump
wastewater from WWTP No. 2 to WWTP No. 1. After the Project is complete, the nitrogen concentration
in wastewater discharged from the plant will be significantly reduced. The performance -based goal of
this project is to meet and exceed the Recipient's TMDL requirements (a reduction of at least 61,791
lbs /yr nitrogen) through treatment plant upgrades to include advanced nutrient removal.
IV. Task Identification
Recipient shall be responsible for the following:
• Obtaining project final design, construction plans and specifications
• Providing a copy of Recipient's executed construction contract documents to the District's
Project Manager
• Scheduling construction implementation of the project described in this statement of work
• Providing copies of any subsequent change orders to the contract to the District's Project
Manager
• Obtaining all required permits, including right of access to the project sites, related to project
construction and subsequent operation of the systems
• Complying with all permits
• Procuring project construction
• Supervising and inspecting construction
• Administering construction contract(s)
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AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
• Submit invoices in a timely manner in accordance with this Agreement to enable proper review
by the District's Project Manager prior to payment authorization.
• Certifying completion of construction by a Professional Engineer registered in the State of
Florida
• Complying with cost accounting practices and procedures required for reimbursement of funds
expended for the Project.
V. Timeframe and Deliverables
Deliverables
Quarterly progress reports shall be submitted to the District's Project Manager, identifying project
progress to date, key milestones reached, overall project schedule versus time for project completion, key
issues to be resolved, project time and projected costs versus actual cost to date.
Projected Milestones
Progress shall be measured by the percent of construction completed for:
Milestone 1: Final Plans and Specifications Complete — October 1, 2010
Milestone 2: Begin Construction — April 30, 2011
Milestone 3: 50% of the Project construction complete — February 30, 2012
Milestone 4: Construction Complete — December 31, 2012
Milestone 5: Begin Operation — March 31, 2013
Milestone 6: 100% Operational Level Attained — October 1, 2013
Milestone 7: Atlantic Beach Meeting or Exceeding TMDL Requirements — October 1, 2014
VI. Project Budget
Total Project cost is estimated to be $9.4 million. The District's contribution shall not exceed $1,000,000.
Recipient shall submit documentation of Project expenditures with each invoice. The District will
reimburse Recipient for 50% of their properly documented allowable expenditures.
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AGENDA ITEM # 8C
AUGUST 23, 2010
Contract #26664
Encumbrance #S004798
Attachment B - Funded Projects and Expected Performance
TMDL
Approximate Starting TN Nitrogen
Capacity Construction District Concentration Removed
Project Name Description (mgd) Cost Cost Share' (mg /L) (Ibs /yr)
(FY10) _ _ (FY12)
City of Atlantic Phase out WWTF 2.2 $9,400,000 $1,000,000 11.35 76.900
Beach Wastewater No. 2, transfer flow
Treatment Project from WWTF No. 2 to
WWTF No. 1, and
upgrade existing
WWTF No 1 to an
advanced wastewater
treatment system
capable of reducing
nitrogen to a level of
3 mg/L utilizing
biological nutrient
removal.
1 Cost share portion is subject to conditions in this Agreement.
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