2. 07/28/2023 Agreement SITE ACCESS AGREEMENT
THIS AGREEMENT is made and entered into by and between the BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA("County'), a political subdivision of
the State of Florida, and FORTRESS SECURED, LLC ("Developer"), a Florida limited liability
company, effective the last date signed below("Effective Date").
WHEREAS, in May 2022 Developer submitted an unsolicited proposal to deliver a fire
station in Sugarloaf Key ("Proposal"); and
WHEREAS,the Proposal includes potential development work on real property located at
the street address of 17175 Overseas Highway in Monroe County, Florida, parcel number
00117930-000100 (the "Property"), in which the County currently possesses a leasehold interest,
conditioned upon the conveyance of the Property by its owner to the County; and
WHEREAS, after advertising the Proposal in accordance with Section 255.065, Florida
Statutes, County entered into a site access agreement with Developer effective September 22,
2022, to provide Developer access to the Property for the purpose of conducting surveys,
inspections, analyses, soil tests, environmental assessments and tests, appraisals, engineering
reports, market feasibility studies, operational audits and other investigations of the Property
reasonably required to advance the Proposal to fruition (the "Inspections"), the term of which
agreement has expired; and
WHEREAS, County entered into an interim agreement with Developer effective March 3,
2023, and presently is negotiating a comprehensive agreement with Developer(although County
reserves the right to reject the Proposal and not to enter into any further agreements); and
WHEREAS, County and Developer desire to enter into this Agreement setting forth the
terms and conditions upon which Developer may access the Property for purposes of conducting
additional Inspections relevant to the on-going negotiations.
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein
contained and for other valuable consideration, the receipt and sufficiency of which are
conclusively acknowledged by the parties, it is agreed as follows:
1. Defined Terms. Unless provided otherwise herein, capitalized terms used in this
Agreement shall have the same meanings ascribed to such terms in the Proposal.
2. Term of Agreement. The term of this Agreement shall commence on the Effective
Date and, unless otherwise extended by written amendment of this Agreement signed
by both parties, shall terminate on the earliest of the following dates: (a) the date
Developer delivers written notice to County that it has completed the Inspections and
removed from the Property all equipment, machinery, supplies, materials, waste and
debris used or produced in the conduct of the Inspections,(b)the date on which County
delivers written notice to Developer that County is terminating the Agreement,
regardless of whether such termination is for cause or for convenience, and (c) ninety
days after the Effective Date.
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3. Access for Inspections. During the Inspection period, County shall allow Developer
(and Developer's contractors and representatives) to have such access to the Property
as is reasonable and necessary for Developer to timely perform its Inspections.
4. Liability of County. County shall have no obligation or liability for any loss or damage
(whether arising due to theft, casualty or otherwise) to any property of Developer or
any property of Developer's contractors or representatives upon the Property. In that
regard, Developer shall maintain such policies of personal property and contents
insurance as Developer deems sufficient for such purposes. Developer hereby fully
releases County from any claims Developer may have,now or in the future,of any type
or nature for any liability or damage to any property of Developer occurring during the
term of this Agreement,and Developer indemnifies County against any claims by third
parties involved with or affected by the Inspections. Notwithstanding the foregoing,
Developer shall not be responsible or liable for any act or omission of the County or its
agents, representatives, employees, contractors, subcontractors or consultants, any
preexisting conditions, or any losses arising out of the discovery or disclosure of the
Property's condition.
5. Insurance. Developer shall, at its sole cost and expense, obtain and maintain the
following insurance coverage:
(a) If Developer makes any improvements or installs any sheds or trailers or
other structures on the Property, Developer shall maintain insurance policies insuring
such improvements against loss due to theft or casualty in the full amount of the
insurable replacement value of such improvements.
(b) Developer shall maintain in effect liability insurance coverage to protect
against liability for damage to persons and property claims arising from the use of the
Property by Developer or out of accidents occurring upon the Property, in a minimum
amount of Two Million Dollars ($2,000,000), combined single limit.
(c) The policies of insurance provided pursuant to this Paragraph 5 shall be
issued by insurers reasonably acceptable to County. Each such policy shall expressly
name County as a co-insured and shall provide that it may not be terminated or canceled
without County being given at least thirty (30) days' prior written notice thereof.
b. Compliance with Law. Developer shall not keep or store trucks,tractors,bulldozers or
other vehicles or construction equipment upon the Property, except in areas expressly
designated or approved by County for such purposes. Developer shall maintain the
Property in clean and safe condition and will not allow trash or debris to accumulate
thereon. Developer shall not permit any unsafe condition to be created or to exist upon
the Property by reason of or in connection with the Inspections or the presence of any
of Developer's representatives,contractors or invitees on the Property. Developer shall
not store or use any petroleum, chemicals or other substances upon the Property in
violation of any applicable environmental laws.
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7. Utilijy Services. Developer shall have the right to access utility easement areas for
purposes of locating surface and underground utility, stormwater, communication,
cable, fiber and information technology installations. Developer shall make all
arrangements with utility service providers and owners of underground installations as
necessary for performance of research and survey activities relating to utility
installations, including coordinating with County with respect to compliance with
Chapter 556, Florida Statutes (Sunshine State One-Call notification). All activities by
Developer shall be conducted in a manner consistent with utility company requirements
and good industry practice and avoid the interruption, curtailment or suspension of
utility service to the County and buildings in the vicinity of the Property.
8. Inspection Documents. All research and survey activities are conditioned upon
Developer providing to County, upon County's written request, copies of all reports,
studies, test results, surveys, maps, drawings, diagrams and other product prepared by
Developer or its consultants or consultants in connection with the Inspection activities
("Work Product") and granting to County the non-exclusive, royalty free, cost free,
non-expiring and assignable right to use Work Product for purposes relating to the
ownership,lease,occupancy,use,development,improvement,operation,maintenance,
alteration and repair of the Property and improvements thereon. All such Work Product
shall be fully paid for by Developer and be free and clear of any lien, charge, security
interest and claim. Developer shall provide to County one electronic copy and one hard
copy of each item of Work Product prepared by Developer or affiliates,consultants and
contractors. All Work Product shall be provided AS-IS, WHERE-IS and without
representation or warranty of any kind whatsoever.
9. Liens. Developer shall not cause or permit any lien to be placed upon the Property,
including, without limitation, any lien in favor of any person providing labor or
materials in connection with any of the Inspections. If any liens or claims, or orders
for the payment of money, shall be filed against the Property, or any improvements
thereon,by reason of any changes,alterations or additions made or alleged to have been
made by or for Developer,Developer shall promptly cause the same to be canceled and
discharged of record, by bond or otherwise, at the election and expense of Developer,
and shall also defend on behalf of County, at Developer's sole cost and expense, any
action, suit or proceeding which may be brought thereon for the enforcement of such
liens,claims or orders,and Developer will pay any damage and satisfactorily discharge
any judgment entered therein,and save harmless County from any claim, attorney fees
or damage therefrom.
If any lien (including, without limitation, any construction lien), claim, or order for
payment of money,shall be filed against the Property,or on any improvements thereon,
by reason of or arising out of the Inspections, and the same shall not be removed by
Developer within thirty (30) days after written notice given by County, then County
shall have the right to remove same by payment or otherwise, and all sums expended
by County for such removal, including attorney fees, shall be paid by Developer to
County upon demand.
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Developer shall not permit to be created nor to remain undischarged any lien,
encumbrance, or charge arising out of any work or work claim of any contractor,
mechanic, materialmen, or supplier of labor or materials supplied, which might be or
become a lien or encumbrance, or a charge upon the Property, and Developer shall not
suffer any other matter or thing whereby the estate, right, or interest of County in the
Property might be encumbered or impaired. Upon the termination of this Agreement,
Developer shall cause any outstanding notices of commencement affecting the Property
to be terminated of record.
10. Restoration. Before the termination of this Agreement, Developer shall, upon request
by County and at Developer's sole cost and expense, remove all of Developer's
property and improvements from the Property and restore the Property as nearly as
possible to the same condition as it was in prior to the Effective Date of this Agreement,
reasonable wear and tear excepted.
11. Governing This Agreement shall be governed by Florida law.
12. Attorneys' Fees. If either party takes any action to enforce this Agreement, then the
prevailing party to such action may recover from the other all of such prevailing party's
costs incurred in bringing or defending such action, as the case may be, including
(without limitation) attorneys' fees, court costs and costs of appeals.
13. Counterparts. This Agreement may be executed in counterparts. Each counterpart
shall be an original, but, when taken together, shall constitute a single instrument. The
parties agree that a signed counterpart received via facsimile or electronic transmission
shall be binding upon the party executing such counterpart.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives and agree to be bound hereby as of the aforementioned
Effective Date.
MONROE COUNTY
MONROE COUNTYATTORNEY'S OFFICE
APPROVED AS TO FORM
y
oman Gastes�
County Administrator
ANT COUNTY ATTORNEY
DATE; Date: July 28, 2023
FORTRESS SECURED, LLC
By: j Z
Date: 774 L„+
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