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1111-ROW/ Rand Yard RoadllJiflll Il# IEEll EflliBl#l~l Illlllllll WASTE SERVICES OF FLORIDA, INC./CITY OF SANFORD RIGHT-OF-WAY USE AND INDEMNIFICATION AGREEMENT THIS RIGHT-OF-WAY USE INDEMNIFICATION AGREEMENT, hereinafter referred to as the "Agreement", is hereby made and entered into by and between WASTE SERVICES OF FLORIDA, INC., whose address is 1451 West Cypress Creek Road, Fort Lauderdale, Florida 33309, hereinafter referred to as the "Company", and the CITY OF SANFORD, whose address is 300 North Park Avenue, Sanford, 32771, hereinafter referred to as the "City". RECITALS: WHEREAS, the Company has advised the City that it is necessary for the Company and its customers to immediately use those portions of the City's public right- of-way known as Rand Yard Road as marked on Exhibit "A" to this Agreement (the "Unimproved Right-of-Way") to access the Company's facility located on Ward Way in the City of Sanford; and WHEREAS, while road improvements are anticipated to be accomplished in the near future, the Unimproved Right-of-Way is not currently constructed to City standards and requirements; and WHEREAS, despite the current condition of the Unimproved Right-of-Way, the Company desires to immediately utilize the Unimproved Right-of-Way and the City has agreed to permit the same; and WHEREAS, the City has made no representation to the Company with regard to the adequacy of the condition of the Unimproved Right-of-Way or the suitability of the Unimproved Right-of-Way for travel in its current condition and the Company is relying upon its independent analysis; and WHEREAS, the City has issued City of Sanford Development Order 03-0058, as amended, which is an underlying document to this Agreement upon which this Agreement is premised and to which this Agreement is subject to. AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the City agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated by reference as if fully set forth herein. 2. Use of Unimproved Right-Of-Way The City hereby permits and approves the immediate use by the Company and vehicles requiring access to the Company's facility of the Unimproved Right-of-Way. The Company agrees that the Unimproved Right-of-Way shall be used for purposes that are permitted and not prohibited under generally applicable traffic regulations or engineering standards. 3. Indemnification. The Company shall be liable for all damages or injury to any and all persons or property caused by any use of the Unimproved Right-of-Way by the Company or its customers, agents, officers and employees, and the general public, during the term of this Agreement and for any actions or proceedings brought as a result of any use of the Unimproved Right-of-Way Agreement. Should the City be sued therefore, the Company shall be promptly notified of such suit and, thereupon, the Company shall have the duty to defend the suit. Should judgment be awarded against the City in any such case, the Company shall forthwith pay the same and relieve the City of any obligations relating thereto. The Company shall indemnify and save harmless the City, its agents, officers and employees from any and all judgments recovered by anyone for personal injury, death or property damage, or any other theory of liability sustained by reason of the Company's or its customers, agents, officers or employees, and the general public's, use of the Unimproved Right-of-Way during the term of this Agreement. The Company shall pay all expenses including, but not limited to, defense and legal costs and attorney's fees, in defending against any such claim made against the City or any of the City's agents, officers or employees. Nothing set forth in this Agreement shall be deemed or construed as a waiver of sovereign immunity by the City and the City shall have all rights and protections provided under Section 768.28, Florida Statutes, and other applicable law. 4. Insurance· (a) The Company shall obtain or possess and continuously maintain the following insurance coverage, from a company or companies, with a Best Rating of A- or better, authorized to do business in the State of Florida: (1) Worker Compensation: The Company shall provide Worker Compensation for all of their employees. The limits will be statutory limits for Worker Compensation and $1,000,000 Combined Single Limit (CSL) for Employer Liability. (2) Comprehensive General Liability: The Company shall provide coverage for all operations including, but not limited to, Complete Operations and Personal Injury. The limits will not be less than $1,000,000 CSL or its equivalent. (3) Comprehensive Automobile Liability: The Company shall provide complete coverage for the motor vehicles which it may use for limits not less than $1,000,000 CSL or its equivalent. (b) All insurance other than Worker Compensation and Professional Liability to be maintained by the Company shall specifically include the City as an additional insured. (c) The Company shall promptly provide Certificates of Insurance to the City evidencing such insurance upon request from the City. These Certificates of Insurance shall become part of this Agreement. The City shall be named as an additional insured on the Company liability insurance. (d) The insurance coverage shall contain a provision that requires that prior to any changes in the coverage, except increases in aggregate coverage, thirty (30) days prior notice will be given to the City by submission of a new Certificate of Insurance. 5. Termination. This Agreement shall terminate effective upon the date of transfer to the City of the completed improvements to the City rights-of-way known as North White Cedar Road and Church Street pursuant to a "Joint Facilitation Agreement" which is being proposed to be entered into between the City and White Cedar-Church, LLC and others; provided, however, that the City has issued City of Sanford Development ©rder 03-0058, as amended, which is an underlying document to this Agreement upon which this Agreement is premised and to which this Agreement is subject to. The City may terminate the use of the Unimproved Right-of-Way if it determines that the "Joint Facilitation Agreement" will not be timely entered. Should termination by the City be initiated as the result of the "Joint Facilitation Agreement" not being timely entered, the City shall provide the Company with written notice thereof and the Company shall have ninety (90) days within which to secure the fully executed "Joint Facilitation Agreement". In the event the fully executed "Joint Facilitation Agreement" is obtained within this ninety (90) day period, this Agreement shall remain in full force and effect in accordance with its terms provided that the said "Joint Facilitation Agreement" continues to be implemented by the parties. In the event the Company does not secure the fully executed "Joint Facilitation Agreement" within ninety (90) days or the "Joint Facilitation Agreement" is not implemented in a timely manner in accordance with its terms as agreed to by the City, the use of the Unimproved Right-of-Way shall terminate. Notwithstanding anything contained herein to the contrary, the City shall have the unilateral right to restrict or suspend the use of the Unimproved Right-of-Way if it concludes, based upon sound and generally accepted engineering practices and principles, that the continued use of the unimproved Right-of-Way is detrimental to the traveling public. Should the City restrict or suspend the use of the Unimproved Right-of- Way for the cause set forth in the preceding sentence, the City shall provide the Company with twenty (20) days prior written notice in accordance with Section 7 of this Agreement; provided, however, that should the City determine that the public safety necessitate immediate restriction or suspension, the City shall provide the Company with such reasonable notice as deemed appropriate by the City based upon the public safety concerns; provided, further, however, that in either event of restriction or suspension, the City agrees to provide the Company with such information as may be available to evaluate the circumstances causing the matter that is detrimental to the traveling public and a reasonable opportunity to cure the matter and, should the matter be timely and reasonably cured to the satisfaction of the City based upon sound and generally accepted engineering practices and principles, the Company may continue to cause traffic to occur on the Unimproved Right-of-Way. Upon the final termination of this Agreement, the parties shall have no further obligations or liability hereunder except for those based upon occurrence or obligations arising prior to the termination of this Agreement. 6. No Joint Venture or Partnership. Notwithstanding anything in this Agreement which may be interpreted or construed to the contrary, neither this Agreement nor the completion of the transactions contemplated hereby shall create between the parties hereto any relationship or business enterprise, whether joint venture, partnership, or any other business relationship. 7. Notice. Any notices, demands, claims and other communications required or permitted to be given pursuant to this Agreement must be in writing and will be deemed duly given and received (i) if personally delivered, when so delivered; (ii) if mailed, three (3) days (excluding Saturdays, Sundays and days when banks are required or permitted to be closed in the State of Florida) after having been sent by registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below; or (iii) if sent by electronic facsimile, once transmitted to the fax number specified below and the appropriate telephonic confirmation is received, provided that a copy of such notice, demand, claim or other communication is promptly thereafter sent in accordance with the provisions of clause (ii): To the City: City Manager City of Sanford 300 North Park Avenue Sanford, 32771 Facsimile No: 407-330-5616 With a Copy to: Stenstrom, Mclntosh, Colbert, Whigham, Reischmann & Partlow, P.A. 200 West First Street Suite 22 Post Office Box 4848 Sanford, Florida 32772 Attn: City Attorney's Office Facsimile No. 407-330-2379 To the Company: Waste Services of Florida, Inc. 1122 International Blvd., Suite 601 Burlington, Ontario CANADA L7L 6Z8 Attn: General Counsel Facsimile No. 905-319-9408 The City or the Company may change its address for receipt of notices hereunder by giving the other party notice of such change in the manner set forth in this Section 7. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned representatives on and as of the respective date~ hereinafter indicated below their signatures. .... By: / / Date: ,//"/~ CITY OF SANFORD Linda K~hn, Mayor Date: 2T-.~- For the use and reliance of the City of Sanford only. Approved as to form and legal sufficiency. /s/William L. Colbert William L. Colbert, Esquire, City Attorney