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HomeMy Public PortalAboutMSC Agreement Revised 12 16 08 STATE OF GEORGIA ) ) COUNTY OF CHATHAM ) AGREEMENT This Agreement made and entered into this _____ day of ________________, 2008 by and between the CITY OF TYBEE ISLAND, GEORGIA (hereinafter the “City”) and the TYBEE ISLAND SCIENCE FOUNDATION, INC., operating as TYBEE ISLAND MARINE SCIENCE CENTER (hereinafter “MSC”). W I T N E S S E T H WHEREAS, the City is a municipal corporation under Georgia law authorized to provide recreational, governmental, public health, and similar activities and facilities to citizens and it is desirous of improving its ability to do; and WHEREAS, the MSC is a non-profit corporation engaged in providing educational and recreational programs and facilities dealing primarily with beach and marine life and issues as well as environmental issues; and WHEREAS, the City has recently acquired certain property located at or near the North Beach parking lot in the City (hereinafter the “Property”); and WHEREAS, the location for the above-mentioned Property is suitable for the construction of a municipal building to be used for MSC purposes, including recreation and education; and WHEREAS, in light of the volunteer services provided by the MSC in the context of enhancing the community of the City and tourism therein; and WHEREAS, the parties wish to enter into an agreement to allow the MSC to lease and occupy the Property in order to conduct feasibility and marketing type studies to determine whether or not a structure can feasibly be built on the Property and to investigate sources of funding therefore and the nature and type of structure; and WHEREAS, it is the intent of the City and the MSC to continue to work together in good faith under this Agreement, the policies of the City and applicable laws and ordinances of the City and state of Georgia; NOW, THEREFORE and in consideration of the mutual covenants and conditions contained herein, the City and the MSC, intending to be legally bound, hereby covenant and agree as follows: 1. Use of Property. The MSC, through the efforts of its membership and others as it might determine appropriate, shall have the right to occupy in compliance with all appropriate laws and ordinances, the Property further described on Exhibit “A” attached hereto and hereby incorporated by reference for the term of this Agreement and any extensions that may be agreed upon. The City hereby authorizes the MSC to investigate the feasibility of the construction of a building on the Property that would fit the needs of the MSC as well as those of the City and to have access to the Property consistent herewith. During the term of this Agreement and any renewals hereof, the City shall be authorized to occupy the Property in order to provide parking for the public. The City shall be entitled to all revenues generated from such parking and to access to the Property at all times in an effort to provide parking services. Upon forty-eight (48) hour notice to the City, the MSC shall be entitled to have Property taped, roped, or barricaded in a temporary manner so as to permit investigation of the feasibility of the construction of a building site on the Property. The City agrees to provide and install such tape, rope or barricade upon the request of the MSC, and the parties shall cooperate so as to be least disruptive of the parking requirements of the City but to also provide the MSC with access necessary to achieve its purpose. During occupancy of the Property by the City for parking purposes, the City shall not be entitled to the benefits of the insurance maintained by the MSC pursuant to the terms of Paragraph 8 hereof. 2. Relationship of Parties. The relationship between the City and the MSC shall be that of independent entities and neither the MSC nor it members, officers, directors, or employees shall be deemed an employee, representative, or agent of the City for any purpose whatsoever. Neither the MSC nor its members, volunteers, or employees is entitled to receive from the City any insurance coverage, worker’s compensation benefits, pensions, profit sharings, paid vacation, sick leave, disability, or other benefits, which might normally be provided by the City to its officers and employees. 3. Grant of Leasehold. The City does hereby rent and lease unto the MSC the Property described on Exhibit “A” hereto and incorporated herein by reference for an annual rental fee payable on the first day of this lease in the sum of $1.00 and for other good and valuable consideration, and in consideration of such sum and mutual covenants and agreements contained herein delivered by each of the parties hereto to the other at and before the sealing and delivery of these presents, the receipt and sufficiency whereof are hereby acknowledged, the City, as owner of the Property, hereby covenants and agrees to grant, demise, and lease to the MSC, and the MSC agrees to hire, take, and lease from the City for a term of one (1) year the Property and all improvements, subject to the terms and provisions of this Agreement. If, at the termination of the one (1) year term, the plans and studies to be conducted on the Property are not yet completed, the City agrees to renew this Agreement for additional one (1) year terms in order to facilitate the successful completion of said feasibility studies and plans. However, such annual renewals shall not exceed three (3) renewal terms without a new agreement between the parties. 4. Improvements to Property. The City does not authorize the MSC to construct a building or other structure on the Property and the MSC agrees it will not construct any improvements on the Property until such time as plans are presented to the City and an additional lease agreement is entered into pertaining to the occupancy of the proposed structure Property, said consent for such future agreement shall not be unreasonably withheld. 5. Assignment and Subleasing. The MSC may not sublease any Property described herein nor assign any rights or interests in any Property or this Agreement without the written consent of the City. 6. Utilities. The MSC shall pay for all utility costs associated with conducting its programs on the Property or its investigation for feasibility of constructing on the Property. 7. Indemnification. The MSC, its successors-in-title and assigns, shall indemnify, protect, save, and hold harmless the City, its officers, Councilpersons, employees, and agents, from and against any and all claims, demands, judgments, setoffs, losses, damages, liabilities, awards, fines and expenses, including without limitation the concurrent negligence of one or more of the parties herein indemnified and the MSC, its successors-in-title, and assigns, the contributory negligence of any party indemnified herein, and any third party, and any attorney’s fees, expenses or other costs associated with or incurred, based on or in any manner relating to the subject matter of this Agreement, for the use of any Property hereunder, including, but not limited to, injury to person or property, actual damages, consequential damages, punitive damages, losses, setoffs, warranty claims, products liability claims, conversion claims, nuisance claims; provided however, that nothing contained in this provision shall be interpreted to indemnify or hold harmless any indemnified party against liability for damages arising out of bodily injury to person or damage to property caused by or resulting from the sole negligence or willful misconduct of such indemnified party. Without limiting the foregoing indemnity, the MSC, it successors and assigns, shall indemnify the City for all defense costs, including reasonable attorney’s fees, judgments, and amounts paid in settlement. 8. Insurance. The MSC agrees that upon the commencement of work to start construction related activities, including ground preparation, it shall obtain at its own expense, and in the name of and for protection of itself, the City, and such other persons as the City may designate, and keep policies of insurance with an insurance company meeting the following criteria: a) Public liability insurance in the usual form indemnifying the parties described above against loss or damage occasioned by any incident or casualty occurring in, upon or about the Property or the sidewalks, alleys or other property adjacent thereto or for any incident or casualty occurring or arising from or by reason of or in connection with activities conducted by MSC and/or the City under this agreement. Such policy or policies shall provide at least the following limits of coverage: $1,000,000.00 with respect to any injury to any one person; $3,000,000.00 with respect to injury resulting from any one occurrence giving rise to liability; $1,000,000.00 with respect to any injury or damage to property. b) All insurance policies required pursuant to this Agreement shall contain an express waiver of any rights of subrogation by the insurer against the City. 9. Term. The term of this Agreement as stated in Paragraph 3 shall be for one (1) year. However, each party hereto shall have the right, upon thirty (30) days’ written notice to the other party hereto, terminate this Agreement and all rights and obligations hereunder shall cease. As discussed in Section 3 of this Agreement, this Agreement shall be renewable for three (3) subsequent annual calendar years and shall be deemed renewed in the event that written notice of non-renewal is not provided by one party to the other party at least forty-five (45) days in advance of the end of a calendar year. This Agreement shall commence on January 1, 2009 and unless renewed, terminate on December 31, 2009. 10. Notice. Notices hereunder, when directed to the City shall be addressed as follows: City Manager City of Tybee Island 403 Butler Avenue Tybee Island, GA 31328-2749 and when directed to MSC, shall be addressed as follows: Tybee Island Marine Science Center PO Box 1879 1510 Strand Avenue Tybee Island, GA 31328 11. Entire Agreement. This Agreement contained herein shall represent the entire Agreement made between the parties and it is understood and agreed that no subsequent alteration, amendment, change, addition or modification to this lease shall be binding upon the City or MSC unless reduced to writing by them and by direct reference made thereby and made a part hereof. IN WITNESS WHEREOF the City has hereunto set its hand and seal and MSC has caused this Agreement to be executed all on the day and year first written above. CITY OF TYBEE ISLAND, GEORGIA By:_________________________________________ Mayor, Jason Buelterman Signed, sealed and delivered in the presence of: _______________________ Attest:_______________________________________ Witness City Clerk, Vivian Woods ______________________ Notary Agreed to as to form: __________________________ Edward M. Hughes City Attorney TYBEE ISLAND SCIENCE FOUNDATION, INC., a Georgia Corporation By:_________________________________________ Signed, sealed and delivered in the presence of: _________________________ Attest:_________________________________________ Witness Secretary _________________________ Notary Public G:\EMH\20\849\Agreement Revised 12.16.08