Second Interlocal Agreement v f -
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Prepared by and Return to:
Neill W.McArthur,Jr.
Office of General Counsel
117 West Duval Street,Suite 480
Jacicsemillc,Florida 32202
SECOND
INTERLOCAL AGREEMENT
BETWEEN
THE CITY OF JACKSONVILLE
AND
THE CITY OF ATLANTIC BEACH
FOR
FUNDING ASSISTANCE IN THE CONSTRUCTION OFA HANDICAP ACCESSIBLE BEACH
WALKOVER AT THE THIRD STREET BEACH ACCESS POINT IN THE CITY OF ATLANTIC BEACH
THIS SECOND INTERLOCAL AGREEMENT, is made and entered into this S�
day of M Q.re-h 2009, and is by and between the CITY OF JACKSONVILLE, a
municipal corporation in Duval County, Florida, with its principal office at 117 West Duval
Street, Jacksonville, Florida 32202 (hereinafter referred to as "COJ") and the CITY OF
ATLANTIC BEACH,a municipal corporation in Duval County,Florida,with its principal office
at 800 Seminole Road, Atlantic Beach, Florida 32233 (hereinafter referred to as "COAB") for
funding assistance in the construction of a handicap accessible beach walkover at the Third Street
beach access point in COAB(hereinafter referred to as the"Project").
RECITALS:
WHEREAS,; on June 20, 2006, the parties made and entered into an Interlocal •
agreement, more particularly identified as City of Jacksonville Contract # 5629-36, (hereinafter
referred to as the"First Agreement")for the Project,pursuant to Section 106.315,ordinance Code
and Ordinance 2005-1044-E;and
WHEREAS, said First Agreement provided District Council funding in the amount of
$48,000.00 to assist with the Project;and
WHEREAS, under said First Agreement, COJ reimbursed COAB $19,642.00 forwork
done on the Project; and
WHEREAS,said First Agreement provided that the Project should be completed no later
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than September 30, 2007, but the Project was never completed and the First Agreement was
terminated, by its terms, with a balance of$28,358.00 remaining for the Project and the COJ
Council Auditor's Offices advises that said balance of underlying Jacksonville City Council
appropriation is still viable and has not lapsed under Section 106.315(a)(2), Ordinance Code;nor
have the enabling ordinances been repealed;and
WHEREAS, a second Interlocal Agreement (hereinafter referred to as the "Second
Agreement")should be made and entered into relative to the remaining$28,358,00 and providing
a completion date of September 30, 2009, in order to allow for completion of the Project; now
therefore
IN CONSIDERATION of the mutual promises contained herein and for other good and
sufficient consideration,the parties agree that:
1. Incorporation of Recitals. The above stated recitals are accurate, true and-
correct and,by this reference, are incorporated herein and made a part hereof.
2. Effective Date. This Second Agreement shall become effective on the day and
year first written above and shall continue in full force until construction of the Project is
complete,unless terminated earlier as provided in this Second Agreement;provided however,this
Project shall be completed no later than September 30,2009.
3, Assistance with Funding the Project. The COJ shall provide funding, in a total
amount not-to-exceed TWENTY-EIGHT THOUSAND THREE HUNDRED FIFTY-EIGHT
AND 00/100 DOLLARS ($28,358.00) to the COAB for the purpose of assisting with the funding
of the Project as described in Exhibit "A", attached hereto and, by this reference, made a part
hereof and incorporated herein, The COJ will not maintain, repair, or support the Project during
construction or at any time thereafter. Such maintenance,repair and support of the Project shall
be the sole and exclusive responsibility of the COAB, with no additional cost or expense to.the
COJ. The COAB shall spend this funding, provided, by the COJ, only on the Project and for no
other matters. Expenditure of the funds on any other matter than the Project shall be a material
breach and default of this Second Agreement and shall result in refunds as specified in this
Second Agreement. The funding,provided in this Second Agreement must be the last funds spent
by the COAB after all other funds,from whatsoever sources,are spent and exhausted.
4. COAB CompIiance. The COAB shall comply with all applicable bond
covenants/restrictions, federal, state, and local laws, rules,regulations, ordinances relative to the
expenditure of the funds,under this Second Agreement.
5. Project Improvements. The COAB shall comply with the construction
standards and priority schedule as stated in Exhibit"A".
6. Payment on Draw or Reimbursement Basis. The COJ's contribution for the
Project, pursuant to this Second Agreement, shall be on a"draw for work done" basis or on a
"cost for reimbursement"basis. Payments will be made within thirty(30) days of the COAB's
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submittal to the COJ of documentation,including bills, invoices and other documents satisfactory
to the COD's General Accounting Division, to justify withdrawal or reimbursement payment to
the COAB.
7. COJ Representative. The COJ's Public Works Department shall be responsible
for overseeing, administering and implementing this Second Agreement. The COJ shall by
subsequent written notice advise the COAB of the contact person in the Public Works
Department.
8. Accounting/Report. The COAB shall provide the Public Works Department and
the Council Auditor with a full accounting/report. Such accounting/report shall be in a form
approved by the Council Auditor and shall include,but not be limited to, copies of all invoices
and checks. Such accounting/report shall be submitted within thirty(30) days after the day and
year first above written and shall continue at thirty(30) day intervals until the funds are spent in
their.entirety.
9. Returned Unspent COJ Funds. Any unspent funds from the $28,358.00
contribution, in the possession of the COAB, on September 30, 2009 shall be immediately
returned to the COJ. Any funds, that are unspent, and which are still being held by the COJ on
September 30,2009 shall be returned to the District Council Account from whence they came.
10. Maximum Indebtedness. The COJ shall be indebted under this Second
Agreement in the maximum amount not-to-exceed TWENTY-EIGHT THOUSAND THREE
HUNDRED FIFTY-EIGHT AND 00/100 DOLLARS($28,358,00).
11. Indemnification.
11.01. The COAB shall hold harmless, indemnify, and defend the COJ, including
without limitation, its officers, directors, members, representatives, affiliates, agents and
employees, successors and assigns against any and all claims, suits, demands,judgments,losses, •
costs, fines, penalties, damages, liabilities and expenses (including all costs for investigation and
defense thereof including, but not limited to, court costs, reasonable expert witness fees and
attorney fees) which may be incurred by, charged to or recovered from and against any of the
following arising directly or indirectly out of any of the COAB's operations, work or services
performed in connection with this Second Agreement including,but not limited to:
11.01.01. Any and all claims for damages as a result of the injury to or death of any
person or persons, or damage to or destruction of any property which arises as a result of any
negligence act or omission on the part of the COAB,its agents,affiliates or assigns,regardless of
where the damage, injury or death occurred; or arising out of the failure of the COAB's to keep,
observe or perform any of its obligations under this Second Agreement or in any other document
or instrument delivered by the COAB pursuant to this Second Agreement.
11.01.02. Any and all claims, suits, demands, judgments, losses, costs, fines,
penalties, damages, liabilities and expenses (including all costs of cleanup, containment or other
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remediation, and all costs for investigation and defense thereof including, but not limited to,
court costs, reasonable expert witness fees and attorney fees) arising from or in connection with
(a)the COAB's,including, but not limited to, its agents, affiliates or assigns ("Parties"),actions
or activities that result in a violation on any environmental law, ordinance, rule, or regulation or
that leads to an environmental claim or citation or to damages due to the COAB's or other
Parties' activities, (b) any environmental,health and safety liabilities arising out of or relating to
the operation or other activities performed in connection with this Second Agreement by the
COAB or any Party at any time on or prior to the Effective Date, or (c) any bodily injury
(including illness, disability and death,regardless of when any such bodily injury occurred, was
incurred or manifested itself), personal injury, property damage (including trespass, nuisance,
wrongful eviction and deprivation of the use of real property) or other damage of or to any
person in any way arising from or allegedly arising from any hazardous activity conducted by the
COAB or any Party. The COJ will be entitled to control any remedial action, any proceeding
relating to an environmental claim.
11.01.03. Any and all claims, suits, demands, judgments, losses, costs, fines,
penalties, damages, liabilities and expenses (including all costs for investigation and defense
thereof including, but not limited to, court costs, reasonable expert witness fees and attorney
fees) arising from or based upon the violation of any federal, state, or municipal laws, statutes,
resolutions,or regulations,by the COAB or those under their control.
11.01.04. Any and all claims, suits, demands, judgments, losses, costs, fines,
penalties, damages, liabilities and expenses (including all costs for investigation and defense
thereof including, but not limited to, court costs, reasonable expert witness fees and attorney
fees) which may be incurred by, charged to or recovered from any of the foregoing, arising
directly or indirectly out of(a) any breach of any representation or warranty made by the COAB
in connection with this Second Agreement or in any certificate, document, writing or other
instrument delivered by the COAG pursuant to this Second Agreement or(b) any breach.of any
covenant or obligation of the COAB set forth in this Second Agreement or any other any
certificate, document, writing or other instrument delivered by the COAG pursuant to this
Second Agreement.
11.02. The indemnifications contained in Section 11.01, above, are separate and apart
from, and is in no way limited by, any insurance provided pursuant to this Second Agreement or
otherwise. This Section 11, relating to Indemnification shall survive the term of this Second
Agreement, and any holdover and/or contract extensions thereto, whether such term expires
naturally by the passage of time or is terminated earlier pursuant to the provisions of this Second
Agreement.
11.03. The indemnifications given by COAB are subject to the provisions and limitations
of Section 768.28, Florida Statutes, and shall not be construed as, and is not, a further waiver of •
COAB's sovereign immunity beyond the limited legislative waiver thereof in Section 768.28,
Florida Statutes.
12. COAB Operations. The COAB shall, at no additional cost or expense to the
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COJ, operate and maintain the Premises as a public street and right-of-way and such Premises
shall be open and available to all residents and visitors to the COJ,with no discrimination on the
basis of race,creed, color,sex,religion,national origin,marital status,age,disability or residence.
13. COAB Responsibilities. The COAB shall be solely responsible for all
maintenance and repairs to the Project at no additional cost to the COJ including,but not limited
to:
13.01. The COAB shall maintain and keep the Project in good repair and shall provide
all required maintenance and repair of whatsoever kind of nature.
13.02. The COAB shall without limiting its liability hereunder, agrees to procure, keep
and maintain adequate insurance types, including, but not limited to fire insurance, and in.
coverage amounts, as required by the COJ's Risk Management Division. During the
construction term, the COAB shall require any contractor to carry and maintain all risk builders'
risk insurance equal to the replacement cost value of the project which at no time will be less than
the contribution as defined in Section 10 of this Second Agreement, naming the COJ as an
additional insured. Upon completion of construction, the COAB will maintain all risk property
insurance at replacement cost value,which at no time will be less than the contribution as defined
in Section 10 of this Second Agreement.
14. Non-Waiver. The waiver, by either party, of any breach of this- Second
Agreement, by the other party, shall not be construed as a waiver of any subsequent breach of
duty or covenant imposed by this Second Agreement.
15. Right of Entry. The COJ, at reasonable times, has the right to enter into and
upon the Premises for the purposes of viewing the same and for the purpose of verifying
compliance by the COAB of its obligations under this Second Agreement.
16. COAB Default. If.the COAB shall neglect or fail to perform or observe any
requirement or violate any provision of this Second Agreement and such default shall continue for •
a period of thirty(30)days after written notice thereof is given by the COJ to the COAB,then the
COJ may,immediately, or at any time thereafter, and without further notice or demand,terminate
this Second Agreement without prejudice to any remedy which might otherwise be used by the
COJ to recover for any breach of the COAB's covenants herein contained. Should this Second
Agreement be terminated as a result of the COAB's breach of Section 3, of this Second
Agreement, then, and in such event,the COAB must refund and return all funds provided by the
COJ. Such refund and return shall be made within fifteen (15) days after notice and request for
refund,by the COJ.
17. Taxes/Insurance Premiums. The COAB shall pay all real estate taxes, if any,
and other taxes, if any, and fire insurance premiums on the Premises. COAB shall not be liable
to carry fire insurance on the person or property of the COJ or any other person or property
which may now or hereafter be placed in the Premises.
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18. Notices. All notices, as required under this Second Agreement shall be by
certified mail return receipt requested:
As to the COJ: As to the COAB:
John Pappas,P. E. Rick Carper
214 North Hogan Street 1200 Sandpiper Lane
Jacksonville,FL 32202 Atlantic Beach,FL 32233
19. Termination for Convenience. The COJ shall have the absolute right to
terminate this Second Agreement without cause upon giving sixty (30) days advance written
notice to the COAB. In the event that this Second Agreement is terminated for convenience, the
COAB shall return, to the COJ, all unspent funds, provided under this Second Agreement, and
received by the COAB.
20, Actions of Mayor and Corporation Secretary. The Mayor and Corporation
Secretary shall have the authority to terminate this Second Agreement under any circumstances in
which the COJ has a legal right to terminate this Second Agreement in accordance with the
provisions hereof.
21. Construction of Terms. The parties agree that they have had meaningful
discussion and/or negotiations of the provisions, terms and conditions contained in this Second
Agreement. Therefore, doubtful or ambiguous provisions, if any, contained in this Second
Agreement, shall not be construed against the party who physically prepared this Second -
Agreement._The rule commonly known as"Fortius Contra Proferentium"shall not be applied to
this Second Agreement or any interpretation thereof.
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22. Entire Agreement. This Second Agreement represents the entire agreement by
and between the parties concerning the receipt and expenditures of the funds specified herein. No
agreement, statement, representation, course of action or course of statement, representation,
course of action or course of conduct by either of the parties hereto, or by their authorized
representatives, shall bebinding if it is not in writing and contained in this Second Agreement.
This Second Agreement may be amended by written instrument signed by the parties or their
lawfully authorized representatives.
23. Severability. If any section, paragraph, sentence or other"part of this Second
Agreement is declared to be unenforceable or unlawful by a court of competent jurisdiction,then,
in such event, such section, paragraph, sentence or other part shall be severed from this Second
Agreement and shall not affect other terms and conditions herein.
24. Section/Paragraph Headings. All section/paragraph headings herein are
provided for convenience only and shall not be used in the interpretation or construction of this
Second Agreement. •
25. Exhibits. All exhibits which are attached"hereto and which arespecifically and
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expressly reference in the text of this Second Agreement, are incorporated into this Second
Agreement as if fully set forth herein.
26. Governing Law/Venue. This Second Agreement shall be governed by the law of
the State of Florida. Venue for litigation of this Second Agreement shall be in a court of
competent jurisdiction in Jacksonville,Florida.
27. Survival of Provisions. The provisions of Sections 8, 11, 12, and 13 shall
survive the termination of this Second Agreement.
[Remainder of page intentionally left blank. Signature page follows immediately.]
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IN WITNESS WHEREOF, the parties, by and through their Iawfully authorized
representatives have executed this Second Agreement on the day and year first above written.
ATTEST: CITY OF JACKSONVILLE
By: By:
Neill W.McArthur,Jr., John Peyton,Mayor,
Corporation Secretary
ATTEST: �'T S i TLANTIC BEACH
42fJ4(flO gad& By:
Donna Bartle,City Clerk Jo -'yr-, ' ayor
In compliance with the Charter of the COJ of Jacksonville, I do hereby certify that there
is an unexpended, unencumbered, and unimpounded balance in the appropriation sufficient to
cover the foregoing Second Agreement, and provision has been made for the payment of the
monies provided therein to be paid.
Director of Finance,
City of Jacksonville
Form Approved:
Office of General Counsel •
G:\Gov't OperationslNE1LLM\CONTRACT1Atlantic Beach Interlocal Agreement(2)Sept.30,2009.doc
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STATE OF FLORIDA) •
)ss.
COUNTY OF DUVAL)
The foregoing instrument was acknowledged before me this day of • 2006,
by John Peyton and Neill W.McArthur,Jr.,the Mayor and Corporation Secretary respectively,of
the City of Jacksonville,a municipal corporation in Duval County,Florida.
Such persons: (notary must check applicable box)
o are personally known to me; or
o produced a current driver's license as identification;or
o produced as identification
(Sign)
(Print)
NOTARY PUBLIC
My Commission expires:
(NOTARIAL SEAL) •
STATE OF FLORIDA)
)ss. •
COUNTY OF DUVAL)
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The'foregoing instrument was acknowledged before me this SO day of A- ,t 200q,
•by John Meserve and Donna Bartle,the Mayor and City Clerk respectively,of thlCity of Atlantic
Beach,a municipal corporation in Duval County,Florida.
Such persons: (notary must check applicable box)
EV' personally known to me;or
• 0 produced a current • driver's license as identification;or
0 produced as identification
r
1r'' ��.wr (Sign)
• (Print) •
NOTARY PUBLIC
►� Commission expires:
.. °� Notary Public State of Florida (NOTARIAL SEAL)
rxr
Nancy E Bailey
y� zr My Commission DD745822
$pF mow Expires 02/08/2012
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