Ware's Creek project hits another bump

BRADENTON - Some words added to a contract could introduce a "time delay" in the Ware's Creek project, county natural resources director Charlie Hunsicker said Thursday.

Speaking at the end of a County Commission work session to provide an update on the project, Hunsicker said he had been told that the new wording would just have to go to the Army Corps of Engineers' regional office in Atlanta for approval.

"There was every anticipation this would be a minor issue," Hunsicker said.

However, it has to go to the Assistant Secretary of the Army in Washington, D.C., he said, and the secretary has to sign off on the change.

Bradenton City Councilman Patrick Roff said in an e-mail message that he isn't worried.

"It is my understanding there will be no delay," he said. "This is just lawyers being careful with other lawyers."

The words are in the Project Participation Agreement, Article XIII, paragraph A, and were put in by the County Attorney in case of a deed problem.

The paragraph in question is the following:

"If at any time the Non-Federal Sponsor fails to fulfill its obligations under this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the Project is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project."

The next text was added, and is the cause of the problem:

", upon first providing written notice to the Non-Federal Sponsor advising of the timing and specific nature of the alleged default or non-performance by the Non-Federal Sponsor hereunder and the expiration of a 60 day period without the Non-Federal Sponsor curing such alleged default or non-performance."

"It just stretches it out," Hunsicker said of the extra time that will be needed for the project.

In an e-mail dated Oct. 12 from Deputy County Attorney Bill Clague to the county commissioners and providing an update on the Ware's Creek project, Clague notes that the PPA was ready for execution in December. "We had hoped it would come back from the Corps sooner. We understand that a minor question has arisen about some of the language in the PPA, which we believe can be resolved fairly easily."

Since the Cooperative Funding Agreement with the Southwest Florida Water Management District and the Interlocal Agreement with the city of Bradenton are dependent on the completion of the Project Participation Agreement, they will not be brought forward until the latter is ready in December, Clague wrote.

"I did not know until 10 minutes to three that I had this information," Hunsicker told the commissioners.

"This points out how fast things change. It's very difficult to make statements about the project's status to the media and the residents who live on Ware's Creek who want to know 'when my carpet is going to be dried out' when things like this happen," he said.

"The attorney in the office in Jacksonville told Bill, 'We had the same language in a project in the city of Miami,' " Hunsicker said. "Well, the project manager told me today that the language I read is intended to protect the county's interest. It was put in by our County Attorney in the event we ran into a deed problem. We wanted to have some buffer period to demonstrate to the federal government that it gives us 60 days to cure a problem."

The added language is not in the original text the Army Corps sent to the county, Hunsicker said.

"Because we're asking for a change of this notice to protect our interest, only the Assistant Secretary of the Army can approve this change," he said.

The Jacksonville office said it understood why Manatee might want to put the language in, and that it wouldn't be a problem.

But it has become one, and it will mean a "time delay" and the contract can't be advertised for bid.

"Everything has to stop," Hunsicker said. "So we'll have to wait to see how quickly the ultimate review will take."

Commissioners react to news

"It may come as a shock, but any time you change those documents, that's an unfortunate part of the process, and I can tell you that we've had stuff go to Washington and never come back for a long time," said County Commissioner Joe McClash. "Sometimes it just sits on a shelf because you're doing something different from what they want you to do."

Commissioner Ron Getman asked if it was worth it to have the language in there. "Is it so important to have this in there that we jeopardize" the project? he asked

County Attorney Tedd Williams advised commissioners to let the lawyers do what they have to do. "Without that language, the Corps could end the project on a whim," he said.

"This delays the project six months," County Commissioner Carol Whitmore said. "If you could just give us an answer at our next meeting on this on what you recommend. I want to get this moving. I've read this three times and I don't understand it."

Whitmore suggested contacting U.S. Rep. Vern Buchanan and asking him to carry it up. "And he will," she said. "This is his baby. He will get an appointment, I think, and see the appropriate people to get this approved. I really think he would help us on this."

"The language is there to protect the interest of the county," Hunsicker said. "The language is the same as it was for a project in Miami, so there was every anticipation that this would have been a minor issue. It may be resolved."

There is good news, though, Hunsicker said. A project like this is a competitive bid and there's more time to meet the regulations. The district, in the interest of moving this forward, had begun working in an alternative process dealing with small businesses if the total amount of the contract is less than $45. million. This dredging project, for the amount of yardage they'll be pulling out of the creek, falls in that area.

They could have started the project in June 2010. If they went to direct negotiations with small businesses, they could have started as soon as January or February 2010.

"We could be seeing work in February of next year," Hunsicker said. The project will bring in an individual, probably with a suction dredge.

But it can only be done under the original timeline, he said.

Pushing for action

McClash said that he'd like to see an agreement back that the Corps would find acceptable. Changing their boilerplate language made things harder, he added.

"They could stop work, but they're the ones paying to do the work," he said. "I think with the congressional attention that this project has from senators and representatives, they would have to have a pretty darn good reason to stop working."

The language may have protected the county, McClash said, but sometimes such actions put governments in conflict with other bureaucracies.

Williams tried again to reassure the commissioners that there should not be a problem with the added language.

"This should not be a big deal," he said after reading the added wording. "This is routine language that any competent lawyer would recognize" as language that Clague had to put in to represent his client.

Whitmore said they should let Buchanan know in any case. Williams said they could do that.

"We don't want it to sit somewhere for months," she said.

"I understand," Williams said.