HomeMy WebLinkAboutCape View Playground Use 2005 USE AGREEMENT BETWEEN THE
CITY OF CAPE CANAVERAL AND THE SCHOOL BOARD OF BREVARD COUNTY
FOR THE USE OF CAPE VIEW ELEMENTARY SCHOOL'S PLAYGROUND
THIS USE AGREEMENT ( "Agreement ") is entered into by and between the CITY OF
CAPE CANAVERAL, a Florida Municipal Corporation ( "City"), and the SCHOOL BOARD OF
BREVARD COUNTY, FLORIDA ( "School Board ") on this 13th day of December , 2005.
WITNESSETH:
WHEREAS, the City has requested the use of the Cape View Elementary playground, which
is owned by the School Board of Brevard County, for use as a public park facility for the residents
and visitors of the City of Cape Canaveral when Cape View Elementary is not in session; and
WHEREAS, the School Board desires to allow the City to non - exclusively use the
playground for such purposes upon the terms and conditions set forth under this Agreement; and
WHEREAS, the City and the School Board believe that utilizing the playground as a public
park for the citizens and visitors of the City of Cape Canaveral, consistent with the terms of this
Agreement, serves a valid public purpose and is in the best interests of the general health, safety and
welfare of the citizens of Cape Canaveral.
NOW THEREFORE, in consideration of the mutual promises herein contained, it is agreed
as follows:
1.0 Incorporation of Recitals. The foregoing recitals are true and correct and by this
reference are fully incorporated into this Agreement.
2.0 Real Property. The real property subject to this Agreement are the grounds
surrounding Cape View Elementary School. School buildings are not part of this
agreement (hereafter referred to as "Playground Property").
3.0 City Use of Plavground Property. The School Board hereby grants to the City the
non - exclusive use of the Playground Property for public park purposes, subject to the
following terms and conditions:
3.1 Hours of Operation. The City's use of the Playground Property shall be limited to
non - school hours (customarily school hours commence 30 minutes prior to, during
the day and then terminate 30 minutes after the end of the last scheduled class) as
described in Florida Statute 1003.31 (2004). During non - school hours the city may
permit the public to use the Playground Property as a public park subject to city code
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regulating the hours of operation for city parks.
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3.2 Post Sign. The City shall post a sign on the Playground Property notifying the public
1 of the hours of operation set forth in paragraph 4.1. The sign shall also list mutually
1 agreeable prohibitions such as but not limited to: no alcohol use, no smoking or
, tobacco use no weapons, no illegal drug use, no gambling etc.
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3.3 Clean -Up. The City shall be responsible for clean -up of any debris, garbage, or refuse
that result from the public's use of the Playground Property.
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t l 3.4 School Board Policies. To the extent notified by the School Board in writing and not
inconsistent with this Agreement, the City will abide by the School Board's reasonable
written policies related to the use of the Playground Property.
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3.5 Permits. The City shall obtain all Local, state, and federal permits, if any, necessary to
utilize the Playground Property as a public park.
3.6 School Board Reservation of Right. The School Board reserves the right to
aF temporarily suspend, in writing, the City's use of the Playground Property under the
following circumstances: (i) the School Board is performing maintenance and repairs
on the property; (ii) the School Board needs the property for school events; (iii) an
emergency exists; and (iv) acts of God and other acts of persons that make the
property unsafe or unsuitable for use.
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3.7 Non - Interference with School Session. The City agrees that the City's use of the
Playground Property will not interfere with the school session at Cape View
Elementary. The City understands that Cape View Elementary's use of the
Playground Property for school purposes takes priority over the public's use of said
property for park purposes.
3.8 Type of Use The City shall not use any of the above described premises in any
unlawful, improper or offensive manner contrary to applicable law, rule or regulation
and shall not use the premises in a manner to be injurious to any person or property or
to endanger or affect any insurance or self - insurance on the subject property or to
increase the premium thereof. The City further agrees that in the event insurance or
self - insurance premiums are increased due to the City's use of the property, the City
will reimburse the School Board the amount of the additional premium cost.
I 3.9 Lighting. The City agrees that it shall not operate the Playground Property as a
public park after dark unless the City first installs lighting to the entire Playground
Property including all ingress, egress and parking areas that would be used by the
1 public to attend the Playground Property. All lighting installations shall be in
1 accordance with State Requirements for Educational Facility rules and regulations.
Once lighting is constructed, it shall be provided twenty (20) minutes prior to sun
; down and remain on until one (1) hour after the park closes.
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4.0 Improvements to Playground Property. From time to time, the City may construct
1 and install park related improvements on the Playground Property at the City's
expense subject to the following terms and conditions:
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4.1 Type. Such improvements may include, but not be limited to, playground equipment,
J fences, benches, trash receptacles, mulch, and other park like improvements.
4.2 School Board Approval Required Prior to the construction and installation of any
improvements, the City shall submit plans and specifications to the School Board for
1 approval.
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4.3 Permits. The City shall be required to obtain all permits necessary to construct and
I install the improvements.
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4.4 Maintenance of Playground Property and Improvements. The City and the School
Board shall equally share the responsibility and expense of maintaining the Playground
Property for the life of this agreement.
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5.0 General Miscellaneous Provisions. The following general miscellaneous provisions
shall apply to this Agreement:
1 5.1 No Assignment. This Agreement shall not be assigned or transferred by either party.
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5.2 Severability. If a word, sentence, or paragraph herein shall be declared illegal,
unenforceable, or unconstitutional, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any way.
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5.3 Governing Law; Venue. This Agreement shall be governed by the law of the State of
Florida. Venue of all disputes shall be properly placed in Brevard County, Florida.
The parties agree that the Agreement was consummated in Brevard County, and the
1 site of use is Brevard County. If any dispute concerning this Agreement arises under
Federal law, the venue will be Orlando, Florida. Any objections to jurisdiction and
venue are expressly waived. Any trial regarding disputes to this agreement shall be
non jury.
5.4 Non Waiver. No delay or failure by either party to exercise any right under this
I Agreement, and no partial or single exercise of that right, shall constitute a waiver of
that or any other rights, unless otherwise expressly provided herein.
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5.6 Notices. Any notice, request, instruction, or other document to be given as part of
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this Agreement shall be in writing and shall be deemed given under the following
1 circumstances: when delivered in person; or three (3) business days after being
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deposited in the United States Mail, postage prepared, certified or registered; or the
next business day after being deposited with a recognized overnight mail or courier
delivery service; or when transmitted by facsimile, email or telecopy transmission,
with receipt acknowledged upon transmission; and addressed as follows (or to such
a other person or at such other address (including an email address), of which any party
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hereto shall have given written notice as provided herein):
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TO THE CITY: City Manager
105 Polk Avenue
1 Cape Canaveral, FL 32920
(321) 868 -1230 (Phone)
(321) 868 -1248 (Fax)
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TO SCHOOL BOARD: Superintendent
2700 Judge Fran Jamieson Way
Viera, FL 32940
(321) 633 -1911 (Phone)
(321) 633 -3432 (Fax)
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5.7 Security. The School Board will not provide security or supervision of the City's
1 visitors, patrons, spectators, or guests from the time they enter the School District
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1 4 Property and until they leave the School Districts Property regardless of where their
visitors, patrons, spectators, or guests go on the School Districts Property.
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5.8 Interpretation. Both the City and the School Board have participated in the drafting
of all parts of this Agreement. As a result, it is the intent of the parties that no portion
of this Agreement shall be interpreted more harshly against either of the parties as the
drafter.
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6.0 Entire Agreement. This Agreement represents the entire and integrated Agreement
between the parties and supersedes all prior negotiations, representations, or
Agreements, either oral or written, and all such matters shall be deemed merged into
this Agreement. The headings used in this Agreement are for convenience purposes
I only.
7.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a
waiver of the City's or the School Board's right to sovereign immunity under Section
768.28, Florida Statutes, or other limitations imposed regarding the City's or the School
Board's potential liability under state or federal law.
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8.0 Indemnification and Hold Harmless. To the extent permitted by law, the City agrees
to indemnify and hold harmless the School Board and their employees, officers, and
attorneys from and against all claims, losses, damages, personal injuries (including but
not limited to death), or liability (including reasonable attorney's fees), which directly or
indirectly arises out of or results from their own acts or omissions and the acts and
omissions of their employees, officers, and attorneys pursuant to this Agreement. This
paragraph shall survive termination of this Agreement.
9.0 Term; Termination. The term of this Agreement shall commence upon full execution
of this Agreement by the parties. This Agreement in accordance with Section 2.0 of this
Agreement. Either party may terminate this Agreement, without penalty, for cause or
convenience, upon providing five (5) days advance written notice to the other party as
set forth under this Agreement
10.0 Third Party Beneficiary. This Agreement is intended to only benefit the City and the
School Board. Nothing in this Agreement shall be construed as benefiting any third
party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year written above.
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Attest: CITY OF CAPE CANAVERAL.
IR1'. :
B y �OC.I�
Sus. Stills, ty lerk Rocky Rand RandeI4, Mayor
Approved as to form and legal sufficiency
for the City only
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Anthony A. Garganese, City Attorney
Attest: THE SCHOOL BOARD OF BREVARD
COUNTY.
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LI 6- -
• .bert Jord� n
airman of the Boar.
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Approved as to form and legal sufficiency
for the School Board only:
Harold T. Bistline, Board Attorney
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