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HomeMy WebLinkAbout03/21/2019 Agreement GVS COURTq c Kevin Madok, CPA Clerk of the Circuit Court& Comptroller— Monroe Count Florida o p Y, E cOVN DATE: April 15, 2019 TO: Judith Clarke, PE, Director Engineering/Roads & Bridges ATTN: Olympia Newton Engineering Department/Stop 1 FROM: Pamela G. Hancock, D.C. SUBJECT: March 21" BOCC Meeting Enclosed is an electronic copy of Item D8, Access Agreement with Cemex Construction Materials Florida, LLC to allow Monroe County to access property located at 92501 Overseas Highway, Tavernier, to perform hurricane debris site restoration work necessitated by the use of the site during Hurricane Irma debris operations, signed by the Assistant County Administrator, for your handling. Should you have any questions,please feel free to contact me at (305) 292-3550. Thank you. cc: County Attorney Finance File KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING 500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070 305-294-4641 305-289-6027 305-852-7145 305-852-7145 ACCESS AGREEMENT This Access Agreement("Agreement") is made and effective this 21st day of March, 2019(the "Effective Date") by and between Cemex Construction Materials Florida, LLC ("Cemex") and Monroe County("County"). Cemex is the owner of certain real property located at 92501 Overseas Highway, Tavernier, Florida (the "Property"). County seeks consent to access the Property to repair and/or replace approximately 40 ft. of damaged chain link fence and to replace Class B native vegetation buffer along the north line of the Property and to replace Class C buffer along US Highway 1 (the"Work"). IN CONSIDERATION of the execution of this Agreement, and other valuable and good consideration,the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: 1) Cemex hereby grants to County, and County accepts from Cemex, a non-transferable, non-exclusive, revocable right to access the Property solely to perform the Work by County and its employees, agents, contractors and subcontractors (each a"County Party" and collectively, the "County Parties") and for no other purpose, subject to the County Parties' compliance with the terms and conditions set forth herein. The rights granted hereunder are solely for performance of the Work by County. No County Party shall access the Property for any other purpose nor shall any County Party allow any other person or parties onto the Property without prior written consent from Cemex. County agrees to to coordinate the Work with Alex Sanchez at (305) 986-0235 or Alexsandro.sanchez0Oceinex.com or such other person as Cemex may designate from time to time. 2) No County Party shall (i) perform any invasive testing nor shall any County Party construct,alter,modify,relocate or remove any improvement in or on the Property without Cemex's prior consent which Cemex may reject in its sole discretion; (ii)disturb or interfere with Cemex's operations and activities or use of the Property; (iii)damage any part of the Property or any personal property owned or held by Cemex or its contractors, subcontractors or invitees; (iv) permit waste or damage to the Property;or(v)create or permit any liens to attach to the Property. Any and all costs and expenses for all Work shall be the sole responsibility of County. Cemex shall have no liability for any costs or expenses or any other costs and expenses of any County Party under this Agreement.County shall,at County's sole cost and expense promptly restore,repair and return any portion of the Property or any adjacent property impacted or damaged by any County Party or the Work to approximately the same condition that the Property or any adjacent property was in prior to the Work. The Work shall be completed on or before Deadniw 20 j/at which time this Agreement shall terminate except for those provisions that by their terms survive termination or expiration. 3) County shall comply with the insurance requirements set forth in Exhibit A. Subject to Sovereign Immunity Provisions of Sec. 768.28, Florida Statutes, County hereby irrevocably agrees to indemnify Cemex and its affiliates and to hold Cemex and its affiliates harmless from any and all liabilities, damages, losses, claims, expenses, suits, costs or demands, direct or indirect, actual or consequential (collectively, "Claims"), and in each and every case, attorney's fees, costs and expenses incurred in defending against or enforcing any such Claims that Cemex or its affiliates may sustain or become subject to,arising out of or relating in any way to(i)access to or entry upon the Property by the County Parties; (ii) the actions,inactions, or performance of the Work by the County Parties including, without limitation, any liens against the Property and Claims (including death, injury or loss) related to persons or property arising out of any County Parry's access to the Property; and (iii) breach of this Agreement by any County Party. The terms of this Section 3 shall survive termination or expiration of this Agreement. 1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered for and in their names by their duly authorized officers all as of the day and year first above written. Monroe County Cemex instruction Materials Florida,LLC By: IF - Print ame: ,egrfAre) -440 Prin Name ONES 3 Title: ! RiiiiTitle: t eg"(Oet- MONROECOUNTYATTORNEY 7 AT 1 qv' AS 0 am: CI RI TIN•LLIMBERT BARROWS ASSDATEL- RNEY /# A/" 2 EXHIBIT A _ INSURANCE REQUIREMENTS 1) Certificate holder. The County is self-insured and has coverage through the Florida League of Cities, Inc. The policy or policies providing insurance as required and when applicable (with the exception of Workers Compensation, Employers' Liability, and if required to be provided, Professional Liability Insurance), shall include CEMEX Construction Materials Florida, LLC ("Cemex") and its affiliates, agents and employees (collectively "Cemex Parties") as Certificate Holders. 2) No Reduction of Limit of Obligation. Insurance affected or procured by County shall not reduce or limit County's contractual obligation, subject to F.S. 768.28, to indemnify and defend Cemex for claims or suits brought which result from or are in connection with performance of,and obligations arising under,the Access Agreement between County and Cemex(the"Agreement"). 3) Duration of Coverage. All required insurance coverages shall be maintained during the entire term of the Agreement and for such additional time as may be further required. 4) Insurer Requirements. All insurance to be provided through companies authorized to do business in the State of FLORIDA and holding a"General Policy Holders Rating of"A"or better as set forth in the most current issue of A.M.Best's Insurance Guide". 5) Retentions/Deductibles. In the event that the County has any self-insured retentions or deductibles under any of the minimum required coverages set forth in paragraph 7,these self-insured retentions or deductibles shall be the sole responsibility of the County. 6) Certificates of Insurance. At any time requested by Cemex, County shall provide to Cemex a certificate of insurance completed by its insurance carrier, agent or broker that accurately reflects the required insurance coverages, including any and all limitations, exclusions and restrictions, specifying that the liability coverages are written on an occurrence form,and that the coverages will not be cancelled, non-renewed or materially changed without thirty (30) days advance written notice to Cemex. County shall instruct its insurer(s) to transmit such certificate(s)to Cemex at the following address: Risk Management, CEMEX, 10100 Katy Freeway, Suite 300, Houston, TX 77043. Acceptance of delivery by Cemex of any certificate of insurance does not constitute approval or agreement by Cemex that the insurance requirements in the Agreement have been met or that the insurance policies shown in the certificates of insurance are in compliance with the Agreement requirements. 7) Insurance Requirements. County shall carry the following types of insurance in at least the limits (which may be a combination of primary and excess coverage)specified below: Coverage Minimum Amounts and Limits a. Worker's Compensation Worker's Compensation Statutory Limits Employer's Liability $1,000,000 Each Accident $1,000,000 Disease Aggregate $1,000,000 Disease per Employee 3 b. Commercial General Liability Bodily Injury/ $1,000,000 each occurrence Property Damage or equivalent,subject to a (Occurrence Basis) $2,000,000 aggregate c. Comprehensive Automobile Liability Bodily Injury $1,000,000 per person $1,000,000 per occurrence Property Damage $1,000,000 per occurrence, or equivalent This policy shall be on a standard form written to cover all owned, hired and non-owned automobiles. The policy shall be endorsed to include the Cemex Parties as additional insured, waive subrogation in favor of the Cemex Parties, contain cross-liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Cemex Parties. d. Umbrella Liability Limits: $2,000,000 Each Occur./Agg. This policy shall be written on an umbrella excess basis above coverages as described in 7(b) —8(c)above,endorsed to include the Cemex Parties as certificate holders,and to the extent as permissible under the policy contain cross-liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Cemex Parties. In addition, the policy shall be endorsed to provide defense coverage obligations. 8) Contractor/Subcontractor's Insurance. Insurance similar to that required of County (unless otherwise approved by Cemex) shall be provided by or on behalf of all contractors and subcontractors of County to cover their operations performed in or on the Property. County shall be held responsible for any modification in these insurance requirements as they apply to contractors and subcontractors of County. County shall maintain Certificates of Insurance from all contractors and subcontractors, enumerating, among other things, the waivers in favor of, and insured status of,Cemex,as required herein,and make them available to Cemex upon request. The term"subcontractor(s)"shall include subcontractors of any tier. 9) Release and Waiver. COUNTY HEREBY RELEASES, AND SHALL CAUSE ITS CONTRACTORS AND SUBCONTRACTORS TO RELEASE, CEMEX AND THE CEMEX PARTIES FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION WHATSOEVER WHICH COUNTY AND/OR ITS CONTRACTORS AND SUBCONTRACTORS MIGHT OTHERWISE POSSESS RESULTING IN OR FROM OR IN ANY WAY CONNECTED WITH ANY LOSS COVERED OR WHICH SHOULD HAVE BEEN COVERED BY INSURANCE, INCLUDING THE DEDUCTIBLE PORTION THEREOF,MAINTAINED AND/OR REQUIRED TO BE MAINTAINED BY COUNTY AND/OR ITS CONTRACTORS AND SUBCONTRACTORS PURSUANT TO THE AGREEMENT. NONE OF THE REQUIREMENTS CONTAINED HEREIN AS TO TYPES, LIMITS OR CEMEX'S APPROVAL OF INSURANCE COVERAGE TO BE MAINTAINED BY COUNTY IS INTENDED TO AND SHALL NOT IN ANY MANNER LIMIT, QUALIFY OR QUANTIFY THE LIABILITIES AND OBLIGATIONS ASSUMED BY COUNTY UNDER THE AGREEMENT OR OTHERWISE PROVIDED BY LAW NOR SHALL THEY BE CONSTRUED TO BE THE ULTIMATE TYPES AND AMOUNTS OF INSURANCE THAT COUNTY SHOULD MAINTAIN TO ADEQUATELY INSURE ITSELF. 4