Loading...
HomeMy WebLinkAbout2015-205A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK MEMORANDUM OF AGREEMENT STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS AND INDIAN RIVER COUNTY, FLORIDA REGARDING MAINTENANCE OF THE TRANS FLORIDA TRAIL IN ST. SEBASTIAN RIVER PRESERVE STATE PARK THIS MEMORANDUM OF AGREEMENT, hereinafter referred to as "MOA," is hereby made and entered into on this day of , 201_, by and between the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS, hereinafter referred to as "GRANTOR" and INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter referred to as "GRANTEE" WITNESSETH WHEREAS, GRANTEE is designing, permitting and will construct a portion of the public shared -use trail known as the Trans Florida Trail ("TRAIL") within the boundaries of St. Sebastian Preserve State Park ("Park" or "premises"), Indian River County, Florida, which is administered by GRANTOR, and WHEREAS, GRANTOR manages the Park under the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("Board of Trustees") Lease No. 4397 and WHEREAS, GRANTOR is willing to allow GRANTEE to construct and to maintain the TRAIL as depicted and described in the Trans Florida Trail Map, attached hereto as Exhibit "A" and made part hereof. NOW THEREFORE, in consideration of the faithful and timely performance of and compliance with all the terms and conditions stated herein, GRANTOR does hereby grant to GRANTEE, the right to use the premises subject to the following terms and conditions: 1 DELEGATIONS OF AUTHORITY GRANTOR'S responsibilities and obligations herein shall be exercised by the Division of Recreation and Parks, State of Florida Department of Environmental Protection, pursuant to Delegations of Authority DEP 150, DRP 26, dated April 1, 2003 2. TERM. This MOA is for a period commencing on the execution date of this MOA and ending on March 28, 2046, the current expiration date of GRANTOR'S Lease No 4397 from the Board of Trustees, unless sooner terminated by GRANTOR. If Board of Trustees' Lease No. 4397 to GRANTOR is renewed, it is the intent of GRANTOR and GRANTEE to renew this MOA prior to its expiration date, to be coterminous with the lease renewal expiration date. 3 EXTENT OF AGREEMENT This MOA covers the use of the premises for the purposes of conducting the following activities: day to day TRAIL operations and maintenance of all TRAIL paving, drainage structures and all other TRAIL appurtenances and accessories constructed or installed by GRANTOR. 4 TERMINATION - 4 I This MOA may be terminated by GRANTOR upon such notice as GRANTOR deems appropriate under the circumstances in the event it is determined that termination is necessary to protect the public health, safety or welfare, or the interests of the Board of Trustees. A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK M')A BEWFEl I)Ri' ;ND INDIAN RIVER t 0i'WTI' FOR Iiil TRANS FL TRAIN AT ST SEBASTIAN RIVER PRLSERVE )T•l'rG PARK 4.2 This MOA may be terminated by GRANTOR for cause. Termination pursuant to this section shall include, but not be limited to, failure to suitably perform the work or failure to continuously perform GRANTEE'S work in a manner calculated to meet or accomplish the objectives of GRANTOR as set forth in this MOA. 4.3 Notice of termination shall be provided in accordance with Paragraph 25 of this MOA, 5 UNDUE WASTE. GRANTEE shall not commit undue waste to the premises. GRANTEE shall restore landscape features damaged duriiig construction to the satisfaction of the manager of the Park ("Park Manager"). Vegetation shall be replaced with plants approved by the Park Manager and district biologist. 6, CONFORMITY This MOA shall conform to all terms and conditions of the Board of Trustees' Lease No. 4397 and any subsequent management lease from the Board of Trustees, as lessor to GRANTOR, as lessee. 7 RIGHT OF INSPECTION• GRANTOR or its duly authorized agent shall have the right at any time to inspect the works and operation of GRANTEE pertaining to this MOA. 8 PROPERTY RIGHTS This MOA constitutes permissive use only, and the placing of permanent facilities or related structures upon the premises, other than the improvements designed, constructed or installed by GRANTEE as pan of the Trans Florida Trail project or additional improvements that may be approved by GRANTOR, is prohibited. GRANTEE agrees that it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the premises, by virtue of this MOA or its occupancy or use hereunder 9 USE OF PROPERTY This MOA shall be non-exclusive. GRANTOR, or its duly authorized agent, shall retain the right to enter the premises covered by this MOA or to engage in management activities not inconsistent with the Park's land management plan and the use herein provided for, and GRANTOR shall retain the right to grant compatible uses of the premises subject to this MOA to third parties during the term of this MOA. 10 NO INTEREST IN LAND. The parties agree that the rights herein conveyed by this MOA are permissive rights only and shall not operate to create or vest any real property rights or interest in GRANTEE. I 1 LIABILITY Each party is responsible for all personal injury and property damage attributable to the negligent acts or omissions of that party and the officers, employees and agents thereof. Nothing herein shall be construed as an indemnity or a waiver of sovereign immunity enjoyed by any party hereto, as provided in Section 768.28, Florida Statutes, as amended from time to time, or any other law providing limitations on claims. 12. APPLICABLE LAW This MOA shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. 13 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this MOA and executed by GRANTOR and GRANTEE. 14 ENTIRE AGREEMENT This MOA incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this MOA that are not contained in this MOA. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms and conditions Page 2 of 7 II A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK 'vIOA BEA' PEEN DRP AND INDIAN RIVER COi;N11' FOR THE TRANS 19. TRAIL A1' Sl' SEHAsmAN RIVER PRESERVE STATE PARK contained herein shall be effective unless contained in a written document in accordance with Paragraph 13 above. 15 SUCCESSION OF AGREEMENT This MOA and the rights and obligations contained herein shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 16. ASSIGNMENT This MOA is personal to GRANTEE and may not be transferred or assigned without the prior written approval of GRANTOR. Notwithstanding the foregoing, GRANTOR and GRANTEE recognize and agree that some or all of the activities permitted under this MOA may be performed by GRANTEE or GRANTEE'S contractor under separate agreement with GRANTEE. Such performance by GRANTEE'S contractor does not create or impose any duty or responsibility between GRANTOR and GRANTEE, nor does it relieve GRANTEE of any duty, responsibility, or liability under this MOA. 17 REMOVAL OF DEBRIS GRANTEE shall clear, remove and pick up all of GRANTEE'S and its contractor's debris including but not limited to herbicide containers, oil containers, papers, discarded tools and trash foreign to the work locations and dispose of the same offsite in such a manner as to leave work locations clean and free of any such debris on a daily basis. 18 ARCHAEOLOGICAL AND HISTORIC SITES. Execution of this MOA in no way affects either of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state-owned lands is prohibited unless prior authorization has been obtained from the Division of Historical Resources of the State of Florida Department of State ("DHR"). If a historical site is uncovered during the duration of this project, GRANTEE will be responsible for any associated costs, such as archaeological testing and excavation, required by DER. 19 TRIPLICATE ORIGINALS This MOA is executed in triplicate originals each of which for all purposes shall be considered an original. 20. COMPLIANCE WITH LAWS This MOA is contingent upon and subject to GRANTEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida, the United States or of any political subdivision or agency thereof. 21 RESPONSIBILITY FOR COMPLIANCE. The parties hereto contemplate the performance of all or a part of the activities authorized herein by GRANTEE. Notwithstanding the foregoing, GRANTEE shall bear the full and ultimate responsibility and liability to GRANTOR for the faithful and timely compliance with the terms and conditions set forth herein. 22. TITLE. GRANTOR neither warrants title to the premises nor guarantees the suitability of the premises for any particular use. 23 DAMAGE. GRANTEE shall not damage the premises, or unduly interfere with public or private rights therein. 24 TERMINATION' GRANTEE by acceptance of this MOA, binds itself, its successors and assigns, to abide by the provisions and conditions herein set forth, and said provisions and conditions shall be deemed covenants of GRANTEE, its successors and assigns. In the event GRANTEE fails or refuses to comply with the provisions and conditions herein set forth or in the event GRANTEE violates any of the provisions and conditions herein, GRANTOR, shall give notice to GRANTEE that curative action must be completed within thirty (30) days. In the event that the matter is not resolved within the thirty (30) day curative period, GRANTOR may elect to terminate this MOA by means of a letter of termination. In the event that this MOA is terminated by GRANTOR, all rights inuring to GRANTEE or its successors shall cease upon the effective date of the letter of termination with the exception of those activities necessary to Page 3 of 7 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK �1O.5 I:EWTEE\ DRP 1ND INDIAN RIVER. uO1IN Y FOR 171E TRANS FL IR All. \l' ST SEEM STIA N RIVER PRESER V E kTE.PARK demobilize and remove personnel and equipment, but GRANTEE'S obligations and responsibilities under Paragraph 26. of this MOA shall survive termination. 25 NOTICE. All notices given under this MOA shall be in writing and shall be served by certified mail including, but not limited to, notice of any violation served pursuant to Section 253 04, Florida Statutes, to the last address of the party to whom notice is to be given, as designated by such party in writing. GRANTOR and GRANTEE hereby designate their address as follows: GRANTEE. Indian River County, Public Works Department 1801 276 Street Vero Beach, FL 32960 Attention. Chris Mora, Public Works Director GRANTOR. State of Florida Department of Environmental Protection Division of Recreation and Parks Office of Park Planning 3900 Commonwealth Boulevard Mail Station 525 Attention. Sine A. Murray, Environmental Administrator 26. REMOVAL OF EQUIPMENT Upon termination or expiration of this MOA, the removable equipment and removable improvements placed on the premises by GRANTEE that have not become a permanent part of the premises and are not desired by GRANTOR, shall be removed by GRANTEE, at its sole cost and expense, within thirty (30) days after the termination or expiration of this MOA. Further, GRANTEE shall restore the premises to substantially the same or better condition than it was upon the effective date of this MOA. 27 ENFORCEMENT OF PROVISIONS No failure, or successive failures, on the part of GRANTOR to enforce any provision nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or render the same inoperative or impair the right to GRANTOR to enforce the same upon any renewal thereof or in the event of subsequent breach or breaches. 28. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES Fee title to the premises is held by the Board of Trustees and GRANTOR has a leasehold interest in the premises. GRANTEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property contained in the premises including, but not limited to, mortgages or construction liens against the premises or against any interest of the Board of Trustees or GRANTOR therein. 29 PARTIAL INVALIDITY If any term, covenant, condition or provision of this MOA shall be ruled by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 30 SPECIAL CONDITIONS The following special conditions shall apply to this MOA. 1 GRANTEE shall give no less than 24 hour notification to the Park Manager and district biologist prior to entering the Park to conduct work at any time. 2. It is understood and agreed that the Park Manager or district biologist shall have the authority to direct GRANTEE or GRANTEE'S local representative onsite and to cease activities in cases where public safety is jeopardized or for failure to follow the project design, or if the work is causing other undesirable impacts to the Park's resources or safety 3 GRANTEE shall not remove or destroy any trees, shrubs, or other vegetation (other than targeted exotic species) in any of the areas where the project will take place, unless agreed upon in advance by the Park Manager or district biologist. Page 4 of 7 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK MOA I.E . I I Eti DRP AND INDIAN RIVER COU;N'lY FOR ME TRANS FL TRAIL. aT ST SEBASTIAN RIVER 'RESERVE 5'F WE PARK 4 GRANTEE shall not dump or place soil or other substances or materials as land fill or dump or place trash, waste or unsightly offensive material anywhere on Park property 5 GRANTEE shall not negatively impact any state and/or federally listed plant or animal species. 6. GRANTEE shall not construct or place buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, except those that may be authorized in writing by GRANTOR. 7 GRANTEE shall prevent exotic plants or animal species from entering the Park by making certain that all equipment brought onsite is washed and free of all vegetative debris (seeds, leaves, woody material). GRANTEE will coordinate inspection of the equipment with the Park Manager or district biologist prior to entering the premises. 8 During the term of this MOA, GRANTEE shall procure and maintain policies of fire, extended risk, and liability insurance coverage. The extended risk and fire insurance coverage shall be in an amount equal to the full insurable replacement value of any improvements or fixtures located on the premises. The liability insurance coverage shall be in amounts not less than $200,000 per person and $300,000 per incident or occurrence for personal injury, death, and property damage on the premises. During the term of this MOA, if Section 768.28, Florida Statutes, or its successor statute is subsequently amended to increase the amount of the liability coverages specified herein, GRANTEE shall immediately obtain liability coverage for the increased amounts. Such policies of insurance shall name GRANTOR, the Board of Trustees of the Internal Improvement Trust Fund, and the State of Florida as additional insureds. GRANTEE shall submit written evidence of having procured all insurance policies required herein to the Park Manager upon entering the Park and shall submit annually thereafter, written evidence of maintaining such insurance policies to the Park Manager GRANTEE shall purchase all policies of insurance from a financially - responsible insurer duly authorized to do business in the State of Florida. Any certificate of self-insurance shall be issued or approved by the Chief Financial Officer, State of Florida. The certificate of self-insurance shall provide for casualty and liability coverage. GRANTEE shall immediately notify GRANTOR and the insurer of any erection or removal of any building or other improvement on the premises and any changes affecting the value of any improvements and shall request the insurer to make adequate changes in the coverage to reflect the changes in value. GRANTEE shall be financially responsible for any loss due to failure to obtain adequate insurance coverage and the failure to maintain such policies or certificate in the amounts set forth shall constitute a breach of this MOA. 9 All herbicides used for exotic and nuisance plant removal shall be used in accordance with the State of Florida Department of Environmental Protection rules and the instructions printed on the herbicide label, and will be coordinated with the Park Manager 10 Maintenance schedules should be coordinated with the Park Manager for weekly trash pickup, and biweekly mowing during growing season. 11 Other maintenance items such as curb drops, uneven surfaces and painted markers/ bollards should be repaired immediately as safety items and visitor precautions should be posted until such repairs are completed. Page 5 of 7 MOA BI VT EN DRi' 4\1) INDIAN RIVER COUNTY FOR THE TRANS PL TRAIL AT ST SEF3AS IIAN RIVER PRESERVE STATE PARK The parties have caused this MOA to be executed on the day and year first above written. ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS By. _ Sine A. Murray„ Environmental Administrator Office of Park Planning "GRANTOR" INDIAN RIVER COUNTY, FLORIDA By its Board of Cou . Commissioners ty Clerk Date: October 20, 2015 esley S Ch (Official Seal) "GRANTEE" Ap Ir. % df »r Forrp 9nd Le *ty i County Attorney Consented to by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida on this day of , 20 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA By• (SEAL) Cheryl McCall, Chief Bureau of Public Land Administration, Division of State Lands, State of Florida Department of Environmental Protection, as agent and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida Approved for Form and Legality DEP Attorney Page 6 of 7 MOA BEATE:EN DRP AND INDIAN 12IVER COUNTY FOR 'ITIE TRANS FL lRAII. AT ST SEBASTIAN RIVER PRESERVE, STATE PARK Exhibit "A" .• FLORIDA Ii$VER COUNTY •- : IS TO CER THAT THI • :RUE AND C RECT COP ORIGIN ON FILE IN �FICE. Page 7 of 7