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HomeMy WebLinkAbout2005-029 06�o2o� FUNDING AGREEMENT AND MEMORANDUM OF UNDERSTANDING AMONG INDIAN RIVER COUNTY , INDIAN RIVER COUNTY CLERK OF THE CIRCUIT COURT , THE DISTRICT BOARD OF TRUSTEES OF INDIAN RIVER COMMUNITY COLLEGE , AND INDIAN RIVER COMMUNITY COLLEGE FOUNDATION , INC . FOR A FULL SERVICE JOINT USE PUBLIC/COMMUNITY COLLEGE BRANCH LIBRARY This Funding Agreement and Memorandum Of Understanding ( "Agreement") made and entered as of January 25 , 2005 (the " Effective Date") , by and among Indian River County , a political subdivision of the State of Florida (the "COUNTY") , Indian River County Clerk Of The Circuit Court , a constitutional officer pursuant to Article V , section 16 , of the Florida Constitution (the "CLERK") , Indian River Community College Foundation , Inc . a Florida not-for- profit corporation (the " FOUNDATION ") , and The District Board of Trustees of Indian River Community College , a political subdivision of the State of Florida (the " TRUSTEES " ) . BACKGROUND RECITALS : A . The COUNTY formally established a countywide public library system in 1986 known as the Indian River County Library System ( " County Library System " ) . B . In 2004 , the COUNTY commissioned a consultant to provide an updated 20 year " Indian River County Library Master Facilities Plan 2004 -2025" for the County Library System . C . The FOUNDATION is the community college direct — support organization for Indian River Community College established in accordance with Florida Statutes section 1004 . 70 (2004) . D . The TRUSTEES own real property on College Lane in Indian River County , Florida , commonly known as the Mueller Campus , and the TRUSTEES and the FOUNDATION want to provide enhanced public library facilities for the students , faculty , 1 and staff of Indian River Community College , together with the citizens of Indian River County , at the Mueller Campus . E . One recommendation of the Indian River County Library Master Facilities Plan 2004 -2025 is a full service joint use public/community college branch library as part of the County Library System and located at the Mueller Campus of the Indian River Community College . F . The Community College Facility Enhancement Challenge Grant Program , Florida Statutes section 1011 . 32 (2004) (sometimes hereinafter referenced as the "Challenge Grant Program ") provides a mechanism to share in the costs of the development of high priority instructional and community- related capital facilities , including common areas connecting such facilities , within community colleges , such as the full service joint use public/community college branch library as part of the County Library System to be located at the Mueller Campus of the Indian River Community College . If funded in accordance with the Challenge Grant Program , the project contemplated to be funded under this Agreement shall encompass the planning , design , construction , and equipping of a full service joint use public/community college branch library as part of the County Library System located at the Mueller Campus ; and public access/infrastructure improvements to include the extension of College Lane to 66th Avenue in Indian River County and construction of a bridge at the future access entrance to the Mueller Campus from 66th Avenue . G . The Challenge Grant Program contemplates that the Florida Legislature will appropriate matching funds for the capital project in one or more fiscal years . H . Pursuant to The Challenge Grant Program , the COUNTY would deposit a portion of the costs of construction for the joint use public/community college branch into a separate capital facilities matching account with the Indian River Community College Foundation , Inc . , the community college direct — support organization for Indian River Community College established in accordance with Florida Statutes section 1004 . 70 (2004) . The funding contribution from the COUNTY , together with the agreement between the COUNTY and the FOUNDATION , must be in place before February 1 of any calendar year. Thereafter, the Challenge Grant Program contemplates that the Legislature will appropriate matching funds for the capital project in one or more fiscal years . I . The TRUSTEES and the COUNTY wish to maximize the use of their respective resources to provide the citizens of Indian River County and the students , faculty , and staff of the COLLEGE with a full service joint use public/community college branch library as part of the County Library System and located at the Mueller Campus of the Indian River Community College . J . The COUNTY , the TRUSTEES , and the FOUNDATION intend that the full service joint use public/community college branch library as part of the County Library System located at the Mueller Campus of the Indian River Community College be approximately 30 , 000 square feet on five (5) acres of high visibility , high public access 2 . S buildable land at the Mueller Campus ( " Library" ) , together with sufficient parking for Library users (the Library and parking hereinafter collectively referenced as " Library Facility " ) , K . The COUNTY finds that the funding for the Library Facility to be provided under this Agreement will serve a public purpose and will benefit the Indian River County community . L . The COUNTY finds that the Library Facility contemplated in this Agreement will serve a public purpose and will benefit the Indian River County community . M . The FOUNDATION and the TRUSTEES each find that the Library Facility contemplated in this Agreement will serve a public purpose and will benefit the Indian River County community as well as the students , faculty, and staff of Indian River Community College , N . This Agreement is entered into pursuant to and in accordance with the Challenge Grant Program , and other applicable provisions of Florida law . O . The Indian River County Clerk of the Circuit Court ("CLERK") is a party to this Agreement as Florida Statutes section 28 . 12 (2004 ) provides that the CLERK shall be clerk and accountant of the Indian River County Board of County Commissioners . NOW , THEREFORE , IN CONSIDERATION of the mutual covenants contained herein , and for other good and valuable consideration , the receipt and sufficiency of which are hereby acknowledged , the parties agree as follows : 1 . RECITALS . The background recitals set forth above are true and correct , form a material part of this Agreement ; and are incorporated herein by reference . 2 . DEPOSIT OF FUNDS . After the FOUNDATION has approved and executed this Agreement on January 18 , 2005 , and after the TRUSTEES have approved and executed this Agreement on January 25 , 2005 , and on or before January 31 , 2005 , the COUNTY and the CLERK shall transfer or cause to be transferred to the FOUNDATION the amount of Four Million Three Hundred Thousand Dollars ($4 , 300 , 000 . 00) (such amount , together with any earned interest thereon as set forth in this Agreement , the "County Contribution ") to be deposited into a separate capital facilities matching account maintained in a qualified public depository as defined in Florida Statutes section 280 . 02 (2004) and located in the State of Florida (hereinafter a "Qualified Public Depository") (the " FOUNDATION Matching Account") , and held , invested , and disbursed as provided in this Agreement . 3 . MATCHING ACCOUNTS . 3 . 1 . FOUNDATION Matching Account . On or before the Effective Date of this Agreement , the FOUNDATION shall establish the FOUNDATION Matching Account in 3 accordance with Florida Statutes section 1011 . 32 (4) (2004 ) for the Library Facility . The FOUNDATION , the TRUSTEES , the COUNTY , and the CLERK acknowledge and agree that : a) the County Contribution shall be deposited into the FOUNDATION Matching Account ; b ) the County Contribution is the maximum amount that the COUNTY is obligated to contribute to the FOUNDATION Matching Account under this Agreement ; and c ) interest earnings on the County Contribution shall be deposited into the FOUNDATION Matching Account and disbursed as set forth in this Agreement . 3 . 2 . TRUSTEES Matching Account . The COUNTY , the CLERK , the FOUNDATION , and the TRUSTEES acknowledge and agree that : a) appropriations by the Florida Legislature for the Library Facility are disbursed directly to the TRUSTEES ; b ) immediately upon the receipt by the TRUSTEES of any and all appropriations by the Florida Legislature for the Library Facility , the TRUSTEES shall promptly deposit same into a separate capital facilities matching account maintained in a Qualified Public Depository (the "TRUSTEES Matching Account") held , invested , and disbursed solely as provided in this Agreement ; c) immediately upon the receipt by the TRUSTEES of any and all appropriations by the Florida Legislature for the Library Facility , the FOUNDATION shall promptly transfer the County Contribution held in the FOUNDATION Matching Account to the TRUSTEES to be deposited into the TRUSTEES Matching Account to be held , invested , and disbursed solely as provided in this Agreement ; provided , however , that such transfer of the County Contribution from the FOUNDATION Matching Account to the TRUSTEES Matching Account may only occur with the prior written authorization of the CLERK . 4 . INVESTMENT MATTERS , 4 . 1 . Authorized Investments . To the maximum extent allowed by Florida law , the County Contribution in the TRUSTEES Matching Account , and the County Contribution in the FOUNDATION Matching Account shall be invested by the TRUSTEES and the FOUNDATION , respectively , only in the following legal investments for COUNTY funds as set forth in the Indian River County Investment Policy dated August 17 , 2004 (" Investment Policy") : . 1 . Direct obligations of the United States Treasury ; . 2 . State of Florida Local Government Surplus Funds Trust Fund ( SBA) ; . 3 . Florida Local Government Investment Trust Fund ( FLGIT) ; . 4 . Interest- bearing time deposits or savings accounts in qualified public depositories as defined in Florida Statutes Section 280 . 02 , . 5 . Federal agencies and instrumentalities ; . 6 . Securities of, or other interests in , any open -end or closed - end management-type investment company or investment trust registered under the Investment Company Act of 1940 , 15 U . S . C . sections 80a= 1 et seq . , as amended from time to time , provided that the portfolio of such investment company or investment trust is limited to obligations of the United States Government or any agency or instrumentality thereof and to repurchase agreements fully collateralized by such United States Government obligations , and provided that such investment company or investment trust takes delivery of such 4 collateral either directly or through an authorized custodian ; . 7 . Securities and Exchange Commission registered money market funds with the highest credit quality rating from a nationally recognized rating agency ; or . 8 . Repurchase agreements with a term of one year or less collateralized by direct obligations of the United States Government which have maturities of three (3) years or less and a market value 103 % or more of the repurchase amount . 4 . 2 . Investment Requirements . The FOUNDATION and the TRUSTEES , respectively, acknowledge and agree that the County Contribution in the FOUNDATION Matching Account and the County Contribution in the TRUSTEES Matching Account that are invested by the FOUNDATION and the TRUSTEES , respectively , pursuant to this Agreement are subject to the following components of the Investment Policy , to the maximum extent allowed by Florida law : . 1 . Maturity and Liquidity . All investments of the County Contribution in the FOUNDATION Matching Account , and the County Contribution in the TRUSTEES Matching Account shall be managed to maintain liquidity to meet the need for cash for the Library Facility and to limit potential market risks . To the maximum extent possible , the FOUNDATION , and the TRUSTEES , respectively , will attempt to match investment maturities with known cash needs and anticipated cash flow requirements ; . 2 . Portfolio Composition . Risk and Diversification With the exception of United States Treasury Obligations and state authorized pools , no more than 20% of the entire portfolio of the County Contribution in the FOUNDATION Matching Account , and the County Contribution in the TRUSTEES Matching Account , respectively , shall be invested in any one issuer. No more than 10 % of the County Contribution in the FOUNDATION Matching Account portfolio , and the County Contribution in the TRUSTEES Matching Account portfolio , respectively , may be placed in certificates of deposit and no more than $ 3 million of either portfolio may be placed in certificates of deposit with any one financial institution . With the exception of State authorized pools , no more than 10 % of the County Contribution in the FOUNDATION Matching Account portfolio , and the County Contribution in the TRUSTEES Matching Account portfolio may be placed in any one money market fund . All investments of the County Contribution in the FOUNDATION Matching Account , and the County Contribution in the TRUSTEES Matching Account , respectively , must have stated maturities of ten ( 10) years or less and no more than 25 % of the County Contribution in the FOUNDATION Matching Account portfolio , and the County Contribution in the TRUSTEES Matching Account portfolio respectively , shall be invested in instruments with stated final maturities greater than five (5 ) years . The County Contribution in the FOUNDATION Matching Account portfolio , and the County Contribution in the TRUSTEES Matching Account portfolio , respectively , shall have securities with varying maturities and at least 10 % of the County Contribution in the FOUNDATION Matching Account portfolio , and the County Contribution in the TRUSTEES Matching Account portfolio , respectively , shall be invested in readily available funds . 4 . 3 . Safekeeping and Custody . All securities purchased by the FOUNDATION for the FOUNDATION Matching Account shall be properly designated as an asset of the 5 FOUNDATION pursuant to the Challenge Grant Program , and held in safekeeping by a third party custodial bank , chartered by the United States Government or the State of Florida , and no withdrawal of such securities , in whole or in part , shall be made from safekeeping except in accordance with all safeguards of this Agreement . All securities purchased by the TRUSTEES for the TRUSTEES Matching Account shall be properly designated as an asset of the TRUSTEES in accordance with applicable Florida law and , to the maximum extent possible , the Challenge Grant Program , and held in safekeeping by a third party custodial bank , chartered by the United States Government or the State of Florida , and no withdrawal of such securities , in whole or in part , shall be made from safekeeping except in accordance with all safeguards of this Agreement . In connection with the FOUNDATION Matching Account and the TRUSTEES Matching Account , the FOUNDATION , and the TRUSTEES , respectively , shall have fully executed third party custodial agreements with a bank chartered by the United States Government or the State of Florida for the FOUNDATION Matching Account and the TRUSTEES Matching Account , respectively, such agreement to include details as to the responsibilities of each party , the costs to be borne by each party , notification of security purchases , sales , delivery , repurchase agreements and wire transfers , safekeeping and transaction costs , and procedures in case of unforeseen mishaps . The TRUSTEES and the FOUNDATION , respectively , acknowledge and agree that purchases and sales of authorized investments in the TRUSTEES Matching Account and in the FOUNDATION Matching Account will only be made through financial institutions which are located in the State of Florida and are Qualified Public Depositories or are primary dealers as designated by the Federal Reserve Bank of New York or are broker/dealers that qualify under Securities & Exchange Commission Rule 15C3 ( Uniform Net Capital Rule) , 4 . 4 . Internal Controls . The FOUNDATION and the TRUSTEES , respectively , shall comply with the following internal controls and operational procedures to protect the County Contribution in the FOUNDATION Matching Account and the County Contribution in the TRUSTEES Matching Account and ensure proper accounting and reporting of securities transactions : 1 . All securities purchased or sold will be transferred only under the " delivery versus payment " ( DVP) method to ensure that funds or securities are not released until all criteria relating to the specific transaction are met ; 2 . The Chief Financial Officer of the FOUNDATION , or the Chief Financial Officer of the TRUSTEES , respectively , are each authorized to accept , on behalf of and in the name of the FOUNDATION Matching Account and the TRUSTEES Matching Account , respectively , bank trust receipts or confirmations as evidence of actual delivery of the obligations or securities in return for investment of funds ; and 3 . Trust receipts or confirmations shall fully describe the various obligations or securities held . The receipt or confirmation shall state that the investment is held in the name of the FOUNDATION Matching Account or the TRUSTEES Matching Account , respectively . 6 4 . 5 . Reporting . During the term of this Agreement , the FOUNDATION and the TRUSTEES , respectively , shall prepare quarterly reports with respect to the County Contribution in the FOUNDATION Matching Account and the County Contribution in the TRUSTEES Matching Account , disclosing current investments ; the book value of all investments ; earnings for the quarter; market values for all investments ; purchases , sales , and maturities of investments ; complete disbursement information , and such other information as may be reasonably requested by the COUNTY and/or CLERK . The FOUNDATION and the TRUSTEES , respectively , shall cause each of the foregoing reports to be completed within fifteen ( 15 ) calendar days after the end of each quarter and thereafter provided to the COUNTY and the CLERK within five (5 ) calendar days after completion . 4 . 6 . Other Financial Matters . To the maximum extent allowed by Florida law , the COUNTY , the CLERK , the FOUNDATION , and the TRUSTEES acknowledge and agree that : . 1 . the County Contribution is not subject to the provisions of Florida Statutes section 1010 . 10 (2004 ) 2 the " Florida Uniform Management of Institutional Funds Act" ; . 2 . the County Contribution in the FOUNDATION Matching Account and the County Contribution in the TRUSTEES Matching Account , respectively , are subject to audit pursuant to Florida Statutes sections 1004 . 70 , 1010 . 34 , and 11 . 45 (8 ) and such audits shall be provided to the COUNTY and the CLERK during the term of this Agreement , within 10 (ten ) calendar days of receipt of all such audits . 5 . AUTHORIZED USES OF FUNDS IN THE MATCHING ACCOUNTS , The County Contribution and all other funds held in the FOUNDATION Matching Account and the TRUSTEES Matching Account , respectively, shall be used solely for the limited purposes set forth in this Agreement and , in accordance with Florida Statutes section 1011 . 32 ( 5 ) (2004 ) , for the planning , construction , and equipping of the Library Facility . The COUNTY , the CLERK , the FOUNDATION , and the TRUSTEES acknowledge and agree that all disbursements of all the County Contribution and the State matching appropriation in the TRUSTEES Matching Account shall be made on an evenly divided 50/50 basis so that both the State matching appropriation and the County Contribution are drawn upon evenly . 6 . EARLY TERMINATION ; REVERTER . Pursuant to Florida Statutes section 1011 . 32 (7) ( 2004) , if the Library Facility project is terminated , the County Contribution , plus accrued interest , reverts to the FOUNDATION for remittance to the COUNTY . In such event , the FOUNDATION agrees to remit all such funds to the COUNTY within ten ( 10) business days after such termination . The COUNTY , the TRUSTEES , and the FOUNDATION acknowledge and agree that this Agreement will be terminated at the expiration of the 2006 Legislative Session if matching funds have not been appropriated , unless the COUNTY , the CLERK , the TRUSTEES , and the FOUNDATION elect to extend the Agreement . Florida Statutes section 1011 . 32 ( 11 ) (2004) provides that any project funds unexpended after a project (such as the Library Facility project) is completed shall revert to the FOUNDATION Matching Account and fifty percent (50 % ) of such unexpended funds 7 shall be reserved for Indian River Community College to provide matching funds for future facility construction projects . The FOUNDATION and the TRUSTEES , to the maximum extent allowable under Florida law , agree to cause any such unexpended funds that are attributable to the County's Contribution to be allocated as a "credit" toward a like amount of costs that the COUNTY must expend for the completed Library Facility . 7 . LIBRARY FACILITY OBLIGATIONS . The COUNTY , the FOUNDATION , and the TRUSTEES all acknowledge and agree : A . that the Library is a full service , joint- use public community college branch library of the County Library System located on the Mueller Campus ; Be that the Library Facility will be located in a mutually agreeable location with a maximum amount of public access and public visibility on the Mueller Campus ; Co to guarantee permanent public access to the Library Facility on the same terms and conditions as other libraries in the County Library System ; D . that the FOUNDATION and the TRUSTEES will diligently pursue funding under Florida Statutes section 1011 . 32 (2004 ) and , upon receipt of such funding , promptly proceed with the design and construction of the Library Facility ; E . that the Indian River County Administrator or designee shall participate in all phases of the professional selection process conducted by either the FOUNDATION , the TRUSTEES , or both under the Consultants ' Competitive Negotiation Act , Florida Statutes section 287 . 055 (2004 ) ; G . that the Indian River County Administrator shall have the ability to designate up to four (4 ) employees , including the General Services Director, the Library Director, the Building and Grounds Superintendent , to review and approve all aspects of the schematic design , plans , exterior signage , and specifications of the Library Facility , consistent with the general schematic design plan for the Mueller Campus and the Richardson Center located thereon ; H . to cooperate with the COUNTY in connection with any Library Facility construction grant funding that the COUNTY may seek to obtain for the Library Facility ; and I . to require that all insurance in connection with the Library Facility name " Indian River County" as an additional insured , with all coverages , insurers , deductibles , and cancellation provisions acceptable to the COUNTY' s Risk Manager; J . to require that all payment and performance bonds in connection with the Library Facility be dual obligee bonds in favor of the COUNTY , in the name of " Indian River County" with a surety acceptable to the COUNTY's Risk Manager; K . to require that a one ( 1 ) year maintenance bond for the Library Facility be provided , in the form of a dual obligee bond in favor of the COUNTY , in the name of " Indian River County" with a surety acceptable to the COUNTY's Risk Manager; and L . that during any federally , State of Florida , or locally declared disaster or other emergency , the COUNTY shall have the full and exclusive use of the Library Facility as the COUNTY , in its sole discretion , acting as the Indian River County Emergency Services 8 District , shall determine , for any and all appropriate governmental purposes in connection with such declared disaster or other emergency ; provided , however, that the TRUSTEES shall have access to the Library Facility at any time as may be deemed by the TRUSTEES to be reasonably necessary . 8 . FURTHER AGREEMENTS . The COUNTY and the TRUSTEES acknowledge and agree that this Agreement sets forth a general framework for future agreements that are contemplated between the COUNTY and the TRUSTEES for the lease , operation , and maintenance of the Library Facility , The COUNTY and the TRUSTEES each agree to negotiate the terms of a Lease and Interlocal Agreement for the construction and operation of the Library Facility as a full service , joint- use public community college branch library located at the Mueller Campus . The Library will be approximately 30 , 000 square feet located on five (5 ) buildable acres as more specifically set forth in the Lease and Interlocal Agreement , The Lease will be a long-term capital facilities lease of ninety- nine (99 ) years . The COUNTY and the TRUSTEES acknowledge and agree that the TRUSTEES anticipate receipt of funds from the Florida Legislature in the minimum amount of $5 . 62 per square foot to be applied toward operation and maintenance for the completed Library (such funds hereinafter the "Operating Funds for New Facilities") . If in any legislative funding cycle , the TRUSTEES do not receive such legislative appropriations of Operating Funds for New Facilities , the COUNTY and the TRUSTEES acknowledge and agree that the COUNTY has no obligation to fund such shortfall . In the unlikely event that Legislative funding for Indian River Community College is reduced across-the - board , the COUNTY and the TRUSTEES agree that the percentage of reduction in funds contributed by the TRUSTEES shall not exceed the percentage reduction applied to Indian River Community College by the Legislature . In connection with the Library , the TRUSTEES acknowledge and agree that the TRUSTEES will use their best efforts to obtain all allowable legislative appropriations and funding , and to use any and all other legally available funding sources , to provide funding of both : a) a minimum of $5 . 62 per square foot to be applied toward allowable operation and maintenance costs of the Library ; and b) all personnel costs for one ( 1 ) librarian dedicated to the Library . The Operating Funds for New Facilities may be increased by the Florida Legislature from time to time , and the TRUSTEES acknowledge and agree that any increased amount in the rate of Operating Funds for New Facilities received by the TRUSTEES for the Library shall be allocated by the TRUSTEES to the Library . 9 . TERM . The term of this Agreement shall commence on the Effective Date and terminate eighteen ( 18 ) months after final completion and acceptance of the Library Facility , unless sooner terminated in accordance with its terms . 10 . INDEMNIFICATION , A . The FOUNDATION shall indemnify and hold harmless the COUNTY and the CLERK , and their respective officers , agents , and employees from or on account of any negligent act or omission , reckless , or intentionally wrongful conduct of the FOUNDATION , 9 or its agents or employees , in connection with , or arising directly or indirectly from , the performance by the FOUNDATION , or its agents or employees , of the obligations to be performed by the FOUNDATION , or its agents or employees under this Agreement . B . The COUNTY and the CLERK are state agencies or political subdivisions of the State of Florida as defined in Florida Statutes section 768 . 28 (2004) , and each agree to be fully responsible for acts and omissions of its respective agents or employees in connection with its respective performance under this Agreement to the extent permitted by law . Nothing herein is intended to serve as a waiver of sovereign immunity by the COUNTY or the CLERK . Nothing herein shall be construed as consent by the COUNTY or the CLERK to be sued by third parties regarding any matter arising out of this Agreement . C . The TRUSTEES are a state agency or political subdivision of the State of Florida as defined in Florida Statutes section 768 . 28 , and agree to be fully responsible for acts and omissions of its agents or employees in connection with its performance under this Agreement to the extent permitted by law . Nothing herein is intended to serve as a waiver of sovereign immunity by the TRUSTEES . Nothing herein shall be construed as consent by the TRUSTEES to be sued by third parties regarding any matter arising out of this Agreement . D . The provisions of this section 10 shall survive the expiration or earlier termination of this Agreement . 11 . LAW GOVERNING AND VENUE , This Agreement shall be governed by and construed in accordance with the laws of the State of Florida . Venue with respect to any litigation instituted in connection with this Agreement shall lie exclusively in Indian River County , Florida . 12 . INDEPENDENT CONTRACTOR , The COUNTY , the CLERK , the TRUSTEES , and the FOUNDATION are each deemed to be independent contractors . Neither the TRUSTEES nor the FOUNDATION is in any sense a legal or implied agent of the COUNTY or the CLERK , and neither has any authority whatsoever to bind the COUNTY or the CLERK , and no acts or assistance given by the COUNTY or the CLERK shall be construed to have altered this relationship . Likewise , neither the COUNTY nor the CLERK is in any sense a legal or implied agent of the TRUSTEES or the FOUNDATION , and has no authority whatsoever to bind the TRUSTEES or the FOUNDATION , and no acts or assistance given by the COUNTY or the CLERK shall be construed to have altered this relationship . This Agreement shall not create nor be deemed to create a partnership or joint venture among the parties . 13 . HEADINGS . The headings , section , and subsection numbers of this Agreement are inserted for convenience only , and shall have no effect upon the meaning of any of the provisions herein . 14 . SEVERABILITY . If any provision of this Agreement , or the application thereof to any person or circumstance , shall be found to be invalid or unenforceable by a court of 10 competent jurisdiction , then the remainder of this Agreement , or the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable , shall not be affected thereby , and each unaffected provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law . 15 . TIME IS OF THE ESSENCE . Time shall be deemed to be of the essence of this Agreement with respect to all provisions in which a definite time for performance is specified ; provided , however, that the foregoing shall not be deemed to deprive any party of the benefit of any cure period set forth herein . No extension of any such time period shall be implied from any conduct of the parties , but rather such extension must be in writing and signed by the party to whom such performance is due from the other party . 16 . NOTICES . Any and all notices , approvals , consents , or demands required or permitted to be provided under this Agreement shall be in writing and shall be deemed given and received ( i) when personally delivered with a receipt obtained , ( ii ) on the date noted as received , refused , or uncollected when sent by certified or registered mail , postage prepaid and return receipt requested , or ( iii) on the earlier of receipt or two (2) business days after acceptance for delivery by a nationally recognized overnight delivery service (e . g . , Federal Express) , at the following addresses : If to the COUNTY : Joseph A . Baird , County Administrator Indian River County 184025 th Street Vero Beach , FL 32960-3365 FAX : 772 - 770- 5095 If to the CLERK Jeffrey K . Barton , Clerk Indian River County 200016 th Avenue Vero Beach , FL 32960 FAX : 772 -778 -4748 If to the TRUSTEES : Dr. Edwin R . Massey , President Indian River Community College 3209 Virginia Avenue Fort Pierce , FL 34981 FAX : 772462 -4724 If to the FOUNDATION : Jimmie Anne Haisley , Executive Director Indian River Community College Foundation , Inc . 3209 Virginia Avenue , Fort Pierce , FL 34981 FAX : 7724624602 11 Facsimile transmission is acceptable notice effective when received , provided , however , that facsimile transmissions received ( i . e . , printed) after 5 : 00 p . m . or on weekends or holidays , will be deemed received on the next day that is not a weekend day or a holiday . The original of the notice must additionally be mailed . Any party may change its address , for the purposes of this section , by written notice to the other parties given in accordance with the provisions of this section . 17 . INTERPRETATION AND JOINT PREPARATION . Should any of the provisions of this Agreement require judicial interpretation , it is agreed by the COUNTY , the CLERK , the TRUSTEES , and the FOUNDATION that the court interpreting or construing the same shall not apply a presumption that the terms of any such provision shall be more strictly construed against the party who itself or through its agents prepared the same . The COUNTY , the CLERK , the TRUSTEES , and the FOUNDATION acknowledge that the agents and attorneys of all parties have participated in the preparation of the provisions of this Agreement and that all terms have been negotiated by the parties . 18 . WAIVER . The waiver by the COUNTY , the CLERK , the TRUSTEES , or the FOUNDATION of any breach of or default under any term , covenant , or condition in this Agreement shall not be deemed a waiver of any subsequent breach or default under the same or any other term , covenant or condition contained herein . 19 . NO THIRD PARTY BENEFICIARY . The provisions of this Agreement are for the exclusive benefit of the parties hereto and not for the benefit of any specific third party , nor shall this Agreement be deemed to have conferred any rights , express or implied , upon any specific third party except as otherwise specifically provided for herein . 20 . LIBERAL CONSTRUCTION . This Agreement shall be liberally construed and interpreted to the extent possible to fully effectuate its purposes and intent . 21 . SUCCESSORS . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assignees . 22 . AVAILABILITY OF FUNDS . The obligations of the COUNTY under this Agreement are subject to the availability of funds lawfully appropriated for its purpose by the Board of County Commissioners of Indian River County . 23 . NO PLEDGE OF CREDIT . Neither party to this Agreement shall pledge the credit of any other party to this Agreement , or make any party a guarantor of payment or surety for any contract , debt , obligation , judgment , lien , or any form of indebtedness . 24 . COUNTERPARTS , This Agreement may be executed in one or more counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument . 12 IN WITNESS WHEREOF , the parties hereto have made and executed this Funding Agreement- a Lp{ ( J 414ndum of Understanding effective as of January 25 , 2005 , ATT � S r B c n ,, ,r INDIAN RIVER COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS p' u B h � ' , % By S. Thomas S . Lowther, Chairman COUNTY — BCC approved 1 / 18/2005 Approved : n Ap v d as to form and legal sufficiency : seph . Baird dian River County Administrator arian E . Fell , Assistant County Attorney CLERK OF THE CIRCUIT COURT INDIAN RIVER COUNTY , F ORIDA By J . K . Ba lerk Date Approved by Clerk : 13 t DISTRICT BOARD OF TRUSTEES OF [ SEAL] INDIAN RIVER COMMUNITY COLLEGE WITNESSES : `J+( OaLAJL ga44�� B Dr. Edwin R . Massey, Prident Signature Sjlannle. arsons Print Name TRUSTEES approved 1 /25/2005 Signature Print Name INDIAN RIVER COMMUNITY COLLEGE FOUNDATION , INC . WITNESSES . U, J Akt7 AX4 cSlt.O... Signa re za.n rtG rayls By Print Name jimmie Anne Haisley Executive Director FOUNDATION approved 1 / 18/2005 Signature Print Name 14 k /,f 40S . . nn � 4 �Jfike of INDIAN RIVER COUNTY *�'ioRtvA ATTORNEY William G. Collins II, County Attorney Marian E. Fell, Assistant County Attorney William K. DeBraal, Assistant County Attorney INTER - OFFICE MEMORANDUM T0 : er to the Board of County Commissioners FROM : n E . Fell , Assistant County Attorney DAT January 26 , 2005 RE : Original Agreement for Permanent Records Full Service Joint Use Public / Community College Branch Library - BCC 1 / 18 / 2005 Agenda Item # 11 - C - 4 The Board of County Commissioners of Indian River County at its meeting January 18 , 2005 , approved the County entering into an Agreement , in substantially the form presented , with the Clerk , the District Board of Trustees of the Indian River Community College , and the Indian River Community College Foundation , Inc . Attached for the County ' s permanent records is the County ' s fully executed original Agreement , MEF / lk Attachment r'y' JAN 2 6 2005 CLIERK " U .1 r-i1= bWi Ro