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HomeMy WebLinkAbout2019-126FACILITIES USE AGREEMENT (Harbour Pointe) THIS AGREEMENT made and entered into on this day of w , 2019, by and between ST. LUCIE COUNTY, a political subdivision of the State 1 F41 ida, hereinafter referred to as "St. Lucie," and INDIAN RIVER COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "Indian River". and, WITNESSETH: WHEREAS, St. Lucie owns Harbour Pointe Park hereinafter referred to as the "Facilities"; WHEREAS, Indian River desire to use the Facilities to stage artificial reef material; and, WHEREAS, St. Lucie is willing to enter into this agreement with Indian River to permit it to temporarily use the Facilities. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties agree as follows: 1. SITE The parties acknowledge and agree that the Facilities shall be located at 1 Avenue M, Fort Pierce and shall consist of the unimproved parcel with no services. 2. USE OF FACILITY Indian River shall use the Facilities to stage 10 fabricated limestone concrete modules (manufactured offsite) and up to 500 tons of mixed secondary use concrete for deployment offshore of Indian River County, Florida. Indian River's use of the Facilities shall not be exclusive and such use of the property shall not preclude St. Lucie staff from accessing the Facilities. Indian River shall use St. Lucie's choice of artificial reef contractor to navigate St. Lucie's permitted staging area. 3. TERM/TERMINATION The term of this Agreement shall be until August 31, 2019. Either party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other party. If the Agreement is terminated Indian River agrees to remove all material prior to the termination date. S:\ATTY\AGREEMNT\FAC-USE\Indian River County — Harbour Pointe 1 4. PROJECT MANAGER The Project Manager for the County is James Oppenborn at (772) 462-1713. The Project Manager for the Foundation is Kendra Cope, M.S. at (772) 226-1569. 5. PERSONNEL Indian River represents that it has, or will secure at its own expense, all necessary contractors, employees or volunteers required to perform the services under this Agreement. 6. INDEMNIFICATION To the extent allowed by law, Indian River will indemnify, defend and hold the St. Lucie County Board of County Commissioners, its officers, directors and employees, harmless from any and all liability, loss, damage, costs, expenses, including, without limitation, attorneys' fees, on account of injury or damage to persons, firms or corporations or to property directly or indirectly arising out of or relating to this Agreement, the performance or breach thereof, or the use or occupancy of the Premises, the parking area or other areas of the facilities by Indian River agents, servants, employees, exhibitors, independent contractors, patrons, guests or invitees except for loss or property damage caused by St. Lucie's negligent conduct; and in the event that suit shall be brought against St. Lucie, either independently or jointly with Indian River on account thereof, Indian River will defend any such suit or suits at the sole cost of Indian River; and in the event of final judgment being obtained against County, either independently or jointly with Indian River, then Indian River will pay such judgment immediately, with all interest and costs thereon, and shall hold St. Lucie harmless. 7. INDEPENDENT CONTRACTOR RELATIONSHIP All persons engaged in any of the work or service performed pursuant to this Agreement, with the exception of St. Lucie employees, shall at all times, and in all places, be subject to Indian River's sole direction, supervision and control. Indian River shall exercise control over the means and manner in which it and its employees perform the work, and in all respects, Indian River's relationship and the relationship of its contractor or employees to St. Lucie shall be that of an independent contractor and not as employees or agents of St. Lucie. In addition, Indian River shall not have the power or authority to bind St. Lucie in any promise, agreement or representation other than specifically provided for in this Agreement. S:\ATTY\AGREEMNT\FAC-USE\Indian River County — Harbour Pointe 2 8. INSURANCE Indian River shall cause its Contractor to procure and maintain, at its own cost and expense, the following forms of insurance coverage or the equivalent thereof which shall name St. Lucie County as an "Additional Insured" and said copy of proof or insurance shall be submitted to St. Lucie. Public Liability Coverage insurance coverage, Comprehensive General Liability including contractual liability covering the indemnification provision agreement contained in this Agreement. Coverage shall provide a combined minimum limit of One Million and 0/100 Dollars ($1,000,000.00) per occurrence/and Two Million and 0/100 Dollars $2,000,000.00 general aggregate. 9. ADDITIONAL COVENANTS OF INDIAN RIVER Indian River shall use and occupy the Facility solely for the purpose specified in Paragraph 2 of this Agreement. 10. NON-DISCRIMINATION Indian River for themselves, successors in interest, and assigns, as a part of the consideration hereof, do hereby covenant and agree that no person on the grounds of face, color, national origin or sex shall be excluded from participation in, be denied the benefits or, or otherwise be subjected to discrimination in the use of the facilities. 11. CONFLICT OF INTEREST Indian River hereby represents and warrants that neither it nor any of its directors, officers, members, partners or employees have any interest nor shall they acquire any interest, directly or indirectly, which would or may conflict in any manner or degree with the performance or rendering of the services herein provided. Indian River further represent and warrant that in the performance of this Agreement, no person having such interest or possible interest shall be employed by it. No elected official or other officer or employee of the County of St. Lucie nor any person whose salary is payable, in whole or part, from County Treasury, shall participate in any decision relating to this Agreement which affects his/her personal financial interest or the financial interest of any corporations, partnership or association in which they are directly or indirectly, interested nor shall any such person have any financial interest, direct or indirect, in this agreement or in the proceeds thereof. S:\ATTY\AGREEMNT\FAC-USE\Indian River County — Harbour Pointe 3 12. ASSIGNMENT No party may assign their rights or obligations under this Agreement without the written consent of the other parties which consent shall not be unreasonably withheld. Any attempt to effect an assignment without St. Lucie's prior written consent shall be deemed a default under this Agreement. 13. ENTIRE AGREEMENT This Agreement and the attachments hereto represent the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersede all other negotiation, understandings, and representations (if any) made by and between such parties. 14. AMENDMENTS The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only in writing signed by the party as to whom enforcement of any such amendment, supplement, waiver or modification is sought and making specific reference to this Agreement. 15. FURTHER ASSURANCES The parties hereby agree from time to time to execute and deliver such further and other transfers, assignment and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the terms of this Agreement. 16. NOTICES All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including telex and telegraphic communication) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, telecommunicated, or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested, addressed to: AS TO ST. LUCIE COUNTY St. Lucie County Administrator 2300 Virginia Avenue Administration Annex Fort Pierce, Florida 34982 S:\ATTY\AGREEMNT\FAC-USE\Indian River County — Harbour Pointe WITH A COPY TO: St. Lucie County Attorney 2300 Virginia Avenue Administration Annex Fort Pierce, Florida 34982 4 AS TO INDIAN RIVER: Indian River County Administrator 1801 27th Street Vero Beach, FL 32960 WITH A COPY TO: Indian River County Attorney 1801 27th Street Vero Beach, FL 32960 or to such other address as any party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery, (b) on the date telecommunicated if by telegraph, (c) on the date of transmission with confirmed answer bank if by telex, and (d) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed. Whenever any party hereto is required to give its approval or disapproval to any matter contained herein, such approval or disapproval shall be given within twenty (20) days from receipt of written requests for approval or approval shall be deemed to be granted. 17. GOVERNING LAW; VENUE This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Florida without regard to principles of conflicts of laws. In the event it is necessary for either party to initiate legal action regarding this Agreement, venue shall be in the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, for claims under state law and the Southern District of Florida, for claims under state law and the Southern District of Florida for any claims which are justiciable in federal court. IN WITNESS WHEREOF, the parties have executed this Agreement on the 16th day of July, 2019. ATTEST: DEPUTY CLERK BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY, FLORIDA BY: CHAIR APPROVED AS— O Fr NCORRECTNESS: BY: S:\ATTY\AGRE -USE\Indian River County — Harbour Pointe COUNTY ATTORN ' Y 5 ATTEST: BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA DEPUTY CLERK CHAIR BY: (1 4y000NTY ATTORNEY S:\ATTY\AGREEMNT\FAC-USE\Indian River County — Harbour Pointe 6