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HomeMy WebLinkAboutExhibit 1LNTERLOC3L AGREE -HENT BY AND BETWEEN THE CITY- OF )ILA -M1 .SND THE FLORIDA INLAND -NAVIGATION DISTRICT THIS LNTERLOC AL AGREEMENT is azade and entered into 1Ls day of ?009_ bN- and bem-een the Florida Inland Navigation District. an independent special district of the State of Florida. (hereafter "District") and the City of Miami, a political subdivision of the State of Florida; (hereafter "City") RVITNESSETH: NVHEREAS, the City is the owner in fee simple of a parcel of land in Miami -Dade County, more fully described in the attached Exhibit "A" (the "Premises"); NA HEREAS, the District is desirous of using the Premises from time to time for the temporary placement of dredged material from the Intracoastal Watennvay on an "as needed" basis resulting from the improvement and maintenance of the Intracoastal Waterway by either the District or the United States of America, acting through the U.S. Army Corps of Engineers ("ACOE"), thus fulfilling the District's statutory responsibility to act as a "local sponsor" with respect to the Intracoastal Waterway from Jacksonville to Miami, Florida; WHEREAS, the City is of the opinion that such use by the District pursuant to the provisions of this Agreement is in the public interest; and WHEREAS, Section 163.01, Florida Statutes, authorizes local governments to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities that will harmonize geographic; economic population and other factors influencing the needs and development of local communities. NOW, THEREFORE, in consideration of the mutual representations, terms and covenants hereafter set forth, the parties hereby agree as follows: Section 1. Purpose: The purpose of this Agreement is to clarify the parties' roles and ks, 46r-lvq-,� obiiRationS re_arding t' e Dlsii ct S use cf ilii Section 2. Representative and Project Monitor: The District's re -presentative and project moiLtor during the term of this Asreernent shall be the Executive Director or successor. The City's representative and prO'ect mollltor dl ring Che term OI Oils Agreelner�i shall be the CILv' N :71ager Or successor. Section 3. Effective Date and Term: Tt-Ls Agreement shall take effect upon execution (`Effective Date"), and shall be for an initial term of two (2) years with the City having the sole option to extend, with at least three (3) months written notice to the City by the District prior to the expiration of the initial term to extend this Agreement for two (2) additional one (1) year terins. Section 4. Use of Premises: The District or the ACOS will submit a written request to the City to use the premises for each dredging project. This request will include; the amount of acreage required (estimated to be no more than 5 acres) as described in Exhibit "A", the environmental pernuts for the dredging project which will include the test results of the dredged material to be placed in the Premises, a proposed plan for use of the Premises, a plan for the removal of the dredged material from the Premises, and a timeline. All dredge material, prior to any installation on the Premises, will be pre -tested at the sole cost and expense of the District, to ensure no contamination of the dredge material being installed exists. Only clean dredged material that does not exceed state or federal soil contamination threshold levels for contaminants such as metals, chlorinated pesticides, polychlorinated biphenyls, or polynuclear aromatic hydrocarbons will be placed on the Premises. Prior to installing any dredge material on the Premises, the District, at its sole cost and expense, shall install or cause to be installed, an approved protective type barrier, to ensure against any seepage on the premises from the dredge material. In addition, the District, at its sole cost and expense shall treat, or cause to be treated, in a manner approved by all governing agencies, all dredge material so as to eliminate any odors from being emitted from the dredge material. The District, at its sole cost and 2 expense shall erect 3 -fence at least six Teel (0 ) i t hells, 1t `,'1th teen co.o r eQ iiie _ -,-at i. _utr=clei_tl opaque to block vie,,,- into the site. The Cite will review the request and a nlutaaliv acceptab'e plan for the use of the prenuses will be agreed upon in „'ritinQ by the parties. The dredged ?naielial -vill remain the property of the District. unless the Cin- requests ownership to use the materials. in which case the Citv shall be given the first option for ownership. Othenvise. the District ;will remove the material generated by the District during the tern of this Ageement as necessan'. from .he sites and shall be fully responsible for the proper disposal of all such materials ill accordance with applicable laws and revelations. Therefore, the use plan will include a plan and timeline for the removal of the dredged material from the Premises. (The placement of the dredged material and its removal from the Premises is hereinafter referred to as the "Project".) Section 5. Interest Conferred by this Agreement: The District agrees that this Agreement has been issued by the City to authorize the District to occupy the Premises solely for the limited purpose of the permitted use described in Section 4 of this Agreement and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of the District hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Premises to the terms of this Agreement. 1\'o leasehold interest in the Premises is conferred upon the District under the provisions hereof and the District does not and shall not claim at any time any leasehold estate or ownership interest in the Premises by virtue of this Agreement or its use of the Premises hereunder. Additionally, the District does not and shall not claim at anytime any interest or estate of any kind or extent whatsoever in the Premises by virtue of any expenditure of funds by the District for improvements, construction, repairs, partitions, or alterations to the Premises even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. Section b. Damage to the Premises: The District agrees that it will not do, or cause to be eOne..__. oil. 01' U-0011 t._c P Ci:i?ses or a_ a_C"n'2 sa.d P:'ella es. � 1`.' aC ', '1110 7 _ a\ `es ! L iIi ca -nage OI" QepreCi3tion of value to the Premnises. or aiiv paIi ihereot. jhe Distllct acccp- iile Premises as " Is in its Present cone110i1 Gild state 0 Tei: 11 a11d w1i110lli ally"_"e Teselilati011 �� OT oIl behalf 02 ille City. and agrees that the Cit shall. under no circumstances. be liable for an-,, iateni. patent or other defects in the Premises. The District at its sole cost. shall maintain the Premises in aood order and repair at all tinges and in an attractive, clean, safe and salutary condition. The District shall be responsible for ail repairs to the Premises required or caused by District's use of am. thereof. The District agrees to make all changes and mitigations necessary to the Premises at the District's sole cost and expense in order to comply with all City, County State and Federal code requirements for the District's use or occupancy thereof Section 7. Alterations, Additions or Replacements: Except in the event of an emergency; the District shall not make any repair or alteration required or permitted to be perfonned by the District without first receiving the written approval of the City_vlanager, which approval may be conditioned or withheld for anv or no reason whatsoever. If the City approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager. In the event of an emergency, the District may reasonably proceed to perform such repair work and shall immediately notify the City of such work. Section 8. Utilities: The District shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, garbage and sewage disposal used by the District during its occupancy of the Premises, as well as all costs for installation of any necessary lines and equipment. The District, at its sole cost, shall install all utilities required for its use, install separate utility meters, and shall be billed directly by the applicable utility company for such services. In the event that the City is billed for any utility or service that is a result of the District's use of the Premises, the District shall reimburse such amount to the City within five (5) calendar 4 dais of noiiIlca`on Ofth-- CiT, :"eCe'pt of said bi_'1. Section 9. Hazardous 'Materials: The Distzict =ees that. dun'nu the teen of this AEreement. it: A. Shall keep or cause the Premises to be kept free of hazardous wastes or substances. In no event shall the District store or mix any such substances on the Premises. B. Shall not cause or perm t, as a result of any intentional or unintentional act or omission on the part of the District or any assignees, a release of hazardous wastes or substances onto the Premises. C. Shall comply with and ensure compliance by its employees and all others under its direction with all applicable federal, state; and local laws, ordinances, rules, and regulations. D. The terms "hazardous waste", "hazardous substance", "disposal", "release", and "threatened release", if used in this lease, shall have the same meaning as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (SARA), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901 et seq., the Florida Resource and Management Act, Chapter 403, Florida Statutes, the Pollution, Spill, Prevention, and Control Act, Chapter 376, Florida Statutes, or any other applicable state or federal laws, rules, or regulations adopted pursuant to any of the foregoing. E. Shall immediately provide the City with notice of any release or threatened release of hazardous waste within the Premises and shall immediatelyprovide the City with notice of any injury or action taken by any local, state, or federal governmental body with respect to hazardous waste within the Premises. 5 T . Shai-i remove an-\, hazardous -_ aste or substances i' L:l e2xceed ai Towable levels in the ground or the m-ound-\z-ater ,vithin the Pre -mases. arising fi-oi,7 the District's use ofthe PI"causes. Section 10. Insurance: In consideration for the privilege herein granted. the District shall not claim any damages from the City in connection with or on account of and as between the parties shall be solely responsible for, any injuries or damages arising in or on the Premises while being used by the District and its agents, representatives, and employees. The District shall maintain a program of insurance covering its liabilities as prescribed by Section 768? 8, Florida Statutes, and shall be responsible for the acts and omission of its officers, employees, representatives and agents in the event that such acts or omissions result in injury to persons or damage to property. The City does not warrant or represent that the Premises are safe or suitable for the purpose for which the District is permitted to use it, and the District assumes all risks in its use. At all times during the term of any contract between the District (or the ACOS) and a contractor that is executed for the performance of the Project, or any part thereof. said contractor(s) shall maintain in force insurance in the amounts satisfactory to the City, required by law, if applicable, or otherwise in the City's reasonable discretion. The City shall be named as an additional insured on all such policies of insurance except for the Worker's Compensation Insurance. Section 11. Prohibitions Against Liens or Other Encumbrances: Fee title to the Premises is held by the City. The District 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 City therein. The District, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off in a manner permitted by law, all notices of violations arising from, or otherwise connected with, the District's improvements, use, occupancy, or operations on the 6 Pre'_'iises V, hich shall be issued by alit l abllc aut o'I-iiy ha% ina or asset,ilia jurlSc- ICiion. The DlstiZct shall promptly pay its contractors. subcontractors. and mateI7al=-,nein Tor all \'-ork aind labor done at the Districts request. should any lien. claim. or encumbra ice be asserted or filed. the District shall bond against or discharge the same regardless of validity. «,itlun t« erry (-10) calendar days of the District's receipt of notice of the filing of said lien, claim or encumbrance. The District further agrees to hold the City harmless from covenant not to sue and to indemiufti the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, materialman, laborer or any other third person with whom the District has contracted or othenvise is found liable, in respect to the Premises. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of the City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, materialman or supplier against any part of the Premises or any of the improvements thereon. Section 12. City Access to Facility: City and its authorized representative(s) shall at all times have access to the Premises, but the City agrees that any such access shall not unreasonably interfere with the District's Permitted Use of the Premises. The City shall have access to and entry into the Premises at any time to (a) inspect the Premises, (b) to perform any obligations of District hereunder which the District has failed to perform after written notice thereof to the District, the District not having cured such matter within ten (10) calendar days of such notice; (c) to assure the District's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show the Premises, to prospective tenants, and (e) for other purposes as maybe deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that City shall make a diligent effort to provide at least 24 -hours advance notice and the District shall have the right to have one or more of its representatives or 7 1Tie Cl -L,, hal1 not be l:ah�Or 7 10� lt Or damage to the Di smict by reason of tlhe exercise b c the Citi' of the n-allt of entre- described herein for the pLl-Poses listed above. The making of per", odic inspection or the faill:re to do so shall not operate to impose upon Cis- ally habilin of an,,, kind whatsoever nor relieve the District of any responsibility obligations or liability assumed under this Agreement. Section 13. Independent Contractor: The District recognizes that it is an independent contractor and not an agent or servant of City. No person employed by any party to this Agreement, shall in connection with the performance of this Agreement or any services or functions contemplated hereunder, at any time, be considered the employee of the other party, nor shall an employee claim any right in or entitlement to any pension, worker's compensation benefit, unemployment compensation, civil service, or other employee rights or privileges granted by operation of law or othenvise, except through and against the entity by whom they are employed. Section 14. Indemnification: In the event a claim or lawsuit is brought against the City, its officials, officers, employees, servants, or agents, the District agrees to save, defend, reimburse indemnify and hold harmless the City, its officials, officers, employees, servants or agents from, including but not limited to, any and all claims, demands, damages, liabilities, causes or actions, legal or administrative proceedings, judgments, interest, attorney's fees, costs and expenses of whatsoever kind or nature, whether arising in any manner directly or indirectly caused, occasioned or contributed to, by reason of any act, omission or fault whether active or passive of District, or anyone acting under its direction or control, or on its behalf, in connection with or incidental to the performance of this Agreement. The District's aforesaid indemnity and hold harmless obligations, or portions or applications thereof, shall apply to the fullest extent permitted by law. This indemnity and hold harmless shall survive the term of this Agreement. The City shall limit any liability to the limits of 768.28.F.S. ON Seezion 15_ Notice of Complaints or Suits: .Each-paigv v 11 promp,_h.* noir%- 7 __e o-_�er of aM, ctZei] coi__ 13L1t. claim. lilt. Or Cause of aCr10n tl'reatel]ed Or commenced aRa I]St It ti"lllcll arises out of or relates. in anv iTiaiLner. to the perfo=ance of this Agreement. Section 16. Breach and Opportunity to Cure: The parties expressly covenant and agree that in the event either pare is in default of its obligations under this Agreement. the party not in I efault shall provide to the defaulting party ten (10) days written notice before exercising any of its rialits. I£ at the sole and complete discretion of the City, the District in any manner violates the restrictions and conditions of this Aareement, then, and in the event, after ten (10) calendar days written notice given to the District by the City within which to cease such violation or correct such deficiencies, and upon failure of the District to do so after such written notice within said ten (10) day period this Agreement shall be automatically canceled without the need for further action by the City_ Section 17. Enforcement Costs: In the event of any litigation arising out of or resulting I om this Agreement, the prevailing party in such litigation shall be entitled to its costs and reasonable attorney's fees (at trial, appellate, and post -judgment proceeding levels). Section 18. Taxes and Fees: The District shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Premises, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Premises by the District, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event the District appeals a tax or fee, the District shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested 9 3 iC`"Zif1e1" \x, costs a, c ex. )'i2 C'J. in 1-uclnz 1-ea�o iab�� a tOIii - "e25. c'? -roc :cd i0 bZ �i'_CUII"ed. Section 19. Termination by Citi --Nlanaaer for Cause: I£ at the sole and complete discretion of the City, the Distllct in any manner violates the restllctions and conditions of Ihis Agreernent" then. and in the event, after ten (10) calendar days w1itten notice given to the District by the Cine Tanager �yitlun «Much to cease such violation or correct such deficiencies. and upon failure of the District to do so after such written notice within said ten (10) day period this Agreement shall be automatically canceled without the need for further action by the City. Section 20. Cancellation by Cite Manager NVithout Cause. The City at its sole discretion, may cancel this Agreement Mthout cause by giving six (6) months written notice to the District. Section 21. Notice: All notices required to be given under this Agreement shall be in writing, and deemed sufficient to each party when sent by Unites States Mail, postage prepaid, to the following: As to the Citv: City of Miami 3500 Pan American Drive Miami, Florida 33133 Attention: City Manager With a copy to: As to the District: Florida Inland Navigation District 1314 Marcinski Road Jupiter, Florida 33477 Attention: Executive Director Section 22. Advertising: The District shall not permit any signs, decoration, or advertising matter to be placed either in the interior or upon the exterior of the Premises without having first obtained the approval of the City Manager or designee, which approval may be withheld for any or 10 10 reas�,_'.. 8t ills �Ciz i? Cr`i.G11. _!ic i71s_ ct s+iall. _ S Ole cOST wi1Q e'ip _ls ln. fall. prow` nlaintaln Stich s? --1_ decoration_ ad,-ZrtiSlIlLy?'",a7TeT Or Otlier inil,L­ c it"_abe P errn iced hereunder ill good condition and repair at all times. The Distrci _must f. nl—er obtain approval from all governrnental authorities having jurisdiction. and must coir:pl�, ,vlili all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, the District shall_ at its sole cost and expense. remove any sign, decoration, advertising matter or other thing permitted hereunder fiom the Premises. If any part of the Premises is in any way damaged by the removal of such items; said damage shall be repaired by the District at its sole cost and expense. Should the District fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City directing the required repairs; City shall cause the Premises to be repaired at the sole cost and expense of District. The District shall pay City the full cost of such repairs within. five (5) days of receipt of an invoice indicating the cost of such required repairs. Section 23. Modification and Amendment: Except as expressly permitted herein to the contrary, no modification, amendment or alteration in the terms or conditions contained herein shall be effective by both parties and approved by the City Manager. The City Manager has the authority to amend or modify this Agreement as needed provided there is no additional cost or fee to the City and any modification or amendment does not extend the Term of the Agreement. Section 24. Remedies: This Agreement shall be construed by and governed by the laws of the State of Florida. Any and all legal action necessary to enforce this Agreement shall be held only in Miami -Dade County. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or 11 oihtr,vlse. No single or palinal exercise b -\ ani- Dart- of aliv pC -N er. or reli_�dv i-iti—tu _del shall preclude any other or firl-� her exercise thereof. Section 25. Surrender of the Area: h1 event of cancellation pursuant to Section 19. "Termination BN- City Manager For Cause." at the expiration of the Notice Period. the Disil-ict shall peacefully surrender the Premises in the same or better condition and repair than the area was before its use by the District to gether with all alterations. fixtures, installation_ additions and improvements which may have been made in or attached on or to the Premises. Upon surrender. the District shall promptly remove all its personal property, trade fixtures and equipment and the District shall repair any damage to the Premises caused thereby. Should the District fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Premises to be repaired at the sole cost and expense of the District. The District shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, City may require the District, at the District's sole cost and expense, to restore the Premises to a condition acceptable to the City. In the event the District fails to remove its personal property, equipment and fixtures from the Premises within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City; at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at the District's sole cost and expense. Section 26. Joint Preparation: The preparation of this Agreement has been a joint effort of the parties, and the resulting document shall not, solely as a matter of judicial constraint, be construed more severely against one of the parties than the other. Section 27. No Assignment or Transfer: The District may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. Section 28. Equal Opportunity: The District and City agree that no person shall on the grounds of race, color, sex, national origin, disability, religion, ancestry, marital status, or sexual 12 O1 entaII0I1 (Je e�c!uded II_ol'] I_'_e oclleriIs Ct. OI" be sL1b�CCi�Q t0 l]�' _�ITi] 01 i 1sC17i1]L aI1o] UnCer ally' aclivlt<' caiTled out by the-oertorinance of this Aarreemei]t. The DI_tnct -�- 1111 ens-cre iiia; an v contracts let for the Project pursuant to the terms of this Aa" een]ent \;"111 contain a sllnllar non-discrimination and equal opportunity clause" Section 29. Captions: The captions and section desimiations herein set forth are for convenience only and shall have no substantive meaning. Section 30. Severability: In the event that any section, paragraph. sentence, clause_ or provision hereof is held invalid by a court of competent jurisdiction, such holding shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. Section 31. Waiver of Jury Trial: The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and the District entering into the subject transaction. Section 32. Non -waiver of Violation: Any failure by the City at any time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and signed by the City. 13 Section 33. Compliance Niirh All Applicable Laws: The Distl�ct accep_s tis A�eelr�zt and hereby ac_til ovvledges that The ,Dlsti,ct s stilet coLhpI a?ice with all tede_Lh state and local laivs_ ordinances and re"_uiatlons is a condition of tills _-kgreeinent_ and the Distn"ct shall coi-, Up - therewith as the same presently exist and as they may be amended herea7fer. This Agreement shall be govemed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction. Section 34. Entirety of Agreement: This Agreement, and its attachinents, represents the entire understanding bet-\veen the parties, and supersedes all other negotiations; representations, or aareements. either written or oral. relating to this Aareement. (REMAINDER OF PAGE INTENTIONALLY LEFT BLAND 14 I_ti WITNESS WHEREOF. rhe Cir, has caused this I��_rerlocai A�ee��e��t to be executed a.a da, of . -1009. ATTEST: Priscilla A. Thompson, Cita, Clerk APPROVED AS TO INSL�A -NCE REQUIREMENTS Lee min Brelun, Director Risk Manacement ATTEST: Approved as to Form and Legal Sufficiency Attorney for Florida Inland Navigation District CIT Y Or NILI N,11. a municipal corporation of the State of Floc da Pedro G. Hernandez. City Malzaaer APPROVED AS TO FORM AND CORRECTNESS NJ Julie O. Bru City Attorney FLORIDA INLAND NAVIGATION DISTRICT FLORIDA INLAND NAVIGATION DISTRICT By:_ Name: Title: W, =XHIBIT 16