Okaloosa County BOCC — May 20, 2014 — C12-1950-TDC — reading text

this Agreement, whether exercised individually or collectively. 9.2 The City does hereby represent and warrant to the County that it has all requisite power, authority, and authorization to enter into this Agreement, has taken all necessary actions required to enter into this Agreement, make any payment contemplated hereby, and to fulfill any and all of its obligations, duties, and responsibilities provided for or required of it by this Agreement, whether exercised individually or collectively. SECTION X. AMENDMENTS 10.1 Neither this Agreement nor any portion of it may be modified or waived orally. The provisions hereof may be amended or waived only pursuant to an instrument in writing, approved by the City Council, and the County’s Board of County Commissioners, and jointly executed by the parties hereto. This Agreement shall be enforced and be binding upon, and insure to the benefits of, the parties hereto and their respective successors and assigns, if any. Any party to this Agreement shall have the right, but not obligation, to waive any right or rights, limitation or limitations, or condition or conditions herein reserved or intended for the benefit of such party without being deemed to have waived other rights, limitations, or conditions. However, any such waiver shall be valid only if expressly granted in writing as described above. SECTION XI. DISPUTE RESOLUTION 11.1 The parties shall attempt to resolve any disputes that arise under this Agreement in good faith and in accordance with the provisions of the “Florida Governmental Conflict Resolution Act”. 11.2 To the extent that the parties are unable to resolve this dispute through the provisions of the "Florida Governmental Conflict Resolution Act," then within thirty (30) days, the parties shall Page 5S of 10 be required to participate in mediation. The cost of the mediation shall be borne equally between the parties. 11.3 In the event that the matter is not resolved through the mediation process, each party shall be free to pursue any of its available remedies. SECTION XII. SEVERABILITY 12.1. If any one or more of the covenants, agreements or provisions of this Agreement shall be held contrary to any express provision of law or contrary to any policy of express law, then the remainder of this agreement shall remain in full force and effect. SECTION XIII. CONTROLLING LAW 13.1. All covenants, stipulations, obligations and agreements of the County and the City contained in this Agreement shall be deemed to be covenants, stipulations, obligations and agreements of each of the County and the City to the full extent authorized by the Act and provided by the Constitution and laws of the State of Florida. The laws of the State of Florida shall govern any and all provisions of this Agreement and any proceeding seeking to enforce or challenge any provision of this Agreement. Venue for any proceeding pertaining to this Agreement shall be exclusively in Okaloosa County. SECTION XIV. NOTICE 14.1 If written notice to a party is required under this Agreement, such notice shall be given by hand delivery, recognized overnight delivery service, or by first class mail, registered and return receipt requested, to the County as follows: James Curry County Administrator Okaloosa County 1804 Lewis Turner Blvd. Suite 400 Fort Walton Beach, FL 32547 Page 6 of 10 As to the City as follows: Maryann Ustick City Manager City of Destin 4200 Indian Bayou Trail Destin, FL 32541 SECTION XV. NO MEMBER LIABILITY 15.1 Neither the members of the governing body of the County, the City, nor any official executing this Agreement, shall be liable personally or shall be subject to any accountability for reason of the execution by the County, the City or any executing authority of the County or the City for any act pertaining thereto. SECTION XVI. FORCE MAJEURE 16.1 A party’s timely performance of its obligations under this Agreement, only to the extent it is specifically affected thereby, shall be suspended, without forfeiture of any performance bond or the incurring of any financial liability, when and only for as long as performance of such obligations is prevented by reasons of any of the following cases: (i) acts of God, including without limitation severe weather events, (ii) operation of law, and (iii) any other event beyond the reasonable control of the party whose performance is affected, to the extent not caused by such party’s willful or negligent acts or omissions, except in those cases where the party could not have reasonably foreseen and reasonably avoided the occurrence. The party affected by any such event shall give written notice thereof to the other party as soon as practicable after it becomes aware of such an event and, to the extent practicable, shall specify the anticipated length of the delay. The affected party shall use reasonable efforts to minimize the impact of that delay on that party’s performance. Neither party shall be liable to the other for damages caused by such events. This provision shall not apply to obligations to make payments under Section V of this Agreement. SECTION XVII. FILING 17.1. The County and the City are hereby authorized and directed after approval of this Agreement by the County and the City and the execution thereof by the duly qualified and authorized officers of each of the parties hereto, to file this Agreement with the Clerk of the Circuit Court of Okaloosa County, Florida for recording in the public records of Okaloosa County, Florida as provided in Section 163.01(11), Florida Statutes. Page 7 of 10 SECTION XVIII. SOVEREIGN IMMUNITY 18.1 The parties further agree that nothing contained herein is intended to nor shall be construed a waiver of the County or City’s rights and immunities under the common law or Section 768.28, Florida Statutes, as amended from time to time. SECTION XIX INSURANCE, LIABILITY AND INDEMNIFICATION 19.1 During the term of this Agreement, the City shall have in force general liability insurance with limits of at least $3,000,000.00 per occurrence and $6,000,000.00 aggregate naming the County as an Additional Insured and Certificate Holder covering any liability, claim, damage or lawsuit, excluding claims for a taking of property or inverse condemnation, resulting from the actions of the City or its employees, officers or agents in the performance of its responsibilities under this Agreement. 19.2. The County and City each agree to be fully responsible for all claims, liabilities, damages, costs, actions, suits or proceedings at law or in equity which may occur as a result of the wrongful or negligent acts of their respective officers, employees, representatives, and agents. 19.3. Any contractor or consultant engaged by the City for work on the Project shall be required to protect, defend, indemnify and hold the City and County harmless from all claims, demands, causes of action or liability resulting from injury to or death of persons or damage to or loss of property sustained as a consequence of the Project and arising from the said contractor’s or vendor’s operations or as a proximate result of the acts or omissions of the contractor, consultant or their employees. Such agreement by the contractor or consultant shall include their indemnification as to any assessment of an administrative fine or penalty by a governmental entity for a violation of conditions of the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization related to their actions or failure to act in carrying out their contractual duties The City shall require the provisions of this section to be included in all contracts between the City and its contractors and consultants for work or services to occur on the Project. SECTION XX. CONSTRUCTION 20.1 The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provision of this Agreement. IN WITNESS WHEREOF, the parties hereto, by and through the undersigned, have entered into this Interlocal Agreement on the date and year first above written. Page 8 of 10 BOARD OF COUNTY COMMISSIONERS.-C OKALOOSA COUNTY, FLORIDA /°-— By EAL CLesseth Don R. Amunds Its: Chairman Dated: “Wee LY, Ltd ATTEST: By: Mas (). GY Its: Deputy Clerk John R. Dowd Its: County Attorney Page 9 of 10 CITY OF DESTIN, FLORIDA By: Sw Q aw Satat Seat Seay Seeyérd Its: Mayor Dated: Rey SS Its: Clerk Dated: Approved as to st Scott Sieg j Its: Land Use tine / Page 10 of 10