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HomeMy WebLinkAboutItem 07 Approval for the Renewal of a Facility Sublicense Agreement with Valencia College and the Ocoee Fire Department City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: August 6, 2024 Item #: 7 Contact Name: CJ VanCamp Department Director: Tom Smothers Contact Number: Ext. 2006 City Manager: Robert Frank Subject: Approval for the Renewal of a Facility Sublicense Agreement with Valencia College and the Ocoee Fire Department. (Deputy Fire Chief Van Camp) Background Summary: The Ocoee Fire Department (OFD) is seeking to renew a Facility Sublicense Agreement with Valencia College, effective October 1, 2024. This agreement allows OFD to use a portion of the facilities at Orange Technical College, which Valencia College operates under a license agreement with the School Board of Orange County, Florida. The agreement permits OFD to use the facility for fire training purposes. This use is nonexclusive, temporary, and revocable, and is subject to the terms of the agreement, as well as the license agreement between Valencia and the School Board. OFD is required to pay a fee of $119.10 per firefighter employed to Valencia College annually by October 1st, which has been included in its 24/25 budget. This agreement aims to support OFD's training needs while ensuring the facility's proper maintenance and compliance with legal requirements. It outlines the responsibilities and obligations of both parties, promoting a collaborative and efficient use of the training facilities. OFD has been utilizing and paying the annual fee for the training facilities under facility agreements for over twenty years. The agreement is set to expire on December 31, 2025, unless terminated earlier by mutual agreement or other specified conditions. Issue: Should the Honorable Mayor and City Commissioners approve and authorize the Mayor to renew the Facility Sublicense Agreement with Valencia College for OFD to use the facility for fire training purposes? Recommendations: Staff recommends the Honorable Mayor and City Commissioners approve and authorize the Mayor to renew the Facility Sublicense Agreement with Valencia College. Attachments: 1. Ocoee Fire Department License Agreement Financial Impacts: The fire department has included the cost for the use of the training facility in its annual budget. The total cost will be $8,100 for fiscal year 24/25. City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org Type of Item: Consent Page 1 of 10 FACILITY SUBLICENSE AGREEMENT This FACILITY SUBLICENSE AGREEMENT (“Agreement”), is made effective as of this 01 day of October 2024 by and between the OCOEE FIRE DEPARTMENT, whose address is 563 S. Bluford Ave., Ocoee, Florida, 34761, hereinafter referred to as “Agency”, and THE DISTRICT BOARD OF TRUSTEES OF VALENCIA COLLEGE, FLORIDA, a political subdivision of the State of Florida, whose address is 1800 South Kirkman Road, Orlando, Florida 32811, (“Valencia”). WITNESSETH WHEREAS, Valencia has entered into a license agreement (the "License Agreement"), attached to and incorporated herein as Exhibit "A," with the School Board of Orange County, Florida, to use a portion of the facilities at Orange Technical College, located at 2900 W. Oak Ridge Road, Orlando, Florida 32809, more particularly described in Exhibit “B”, attached to and incorporated herein (the “Facility”) to operate or cause the operation of the Fire Rescue Institute at Valencia such Facility formerly used and operated solely by the Central Florida Fire Academy in accordance with a prior interlocal agreement; and WHEREAS, Valencia wishes to grant a nonexclusive sublicense to Agency and give permission to Agency to enter onto the Facility and use the Facility for fire training purposes subject to and in accordance with this Agreement, the License, and the Interlocal Agreement, all as amended from time to time. NOW THEREFORE, in consideration of the mutual covenants set forth in this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Agency and Valencia hereby agree as follows: 1. Recitals. The recitals set forth above are true and correct and are incorporated herein by reference. 2. Grant of Sublicense. (a) Subject to the terms and conditions of this Agreement, the License, and the Interlocal Agreement, all as amended from time to time, Valencia grants to Agency and its employees a temporary, nonexclusive and revocable sublicense to use the Facility, and parking spaces located on the Orange Technical College property outside of the Facility in numbers and locations as determined by Valencia, solely to use the Facility for fire training purposes on days and at times scheduled by Valencia throughout the Term. This Agreement creates a permissive use only and shall not operate to create or vest any real property rights in Agency. (b) Agency may not grant sublicenses to third parties to use the Facility for any purpose. Page 2 of 10 (c) Agency’s use of the Facility shall not unreasonably interfere with the School Board of Orange County’s operation of Orange Technical College. 3. Term. Unless terminated earlier as provided by this Agreement or otherwise as agreed to in writing by the parties hereto, the term of this Agreement shall expire on December 31, 2025 (the “Term”). 4. Fees. Agency shall pay the fees of $119.10 per firefighter employed by Agency to Valencia by October 1st each year. Valencia must notify all agencies of any change of the fee by April 1st. 5. Maintenance Responsibilities. (a) Except for parking spaces provided for Agency’s use as part of the sublicense granted pursuant to the License Agreement between Valencia and the School Board, Agency shall, at no cost to Valencia, proportionately cause to be maintained the Facility as Valencia deems necessary and appropriate during the Term of this Agreement, including the performance of operations, maintenance and repairs to the Facility necessary to eliminate disruption to the School Board of Orange County’s operation of Orange Technical College, except that Agency shall remediate a hazardous substance spill, release, or discharge on, in, under or from the Facility attributable solely to Agency's use of the Facility ("Hazardous Material Remediation") in a manner reasonably acceptable to Valencia. (b) If Agency fails after twenty (20) business days’ written notice to proceed with due diligence to perform, or cause to be performed, maintenance or to make repairs required for the specific purposes of Hazardous Material Remediation the same may be made by Valencia at the expense of Agency and the reasonable expenses thereof incurred by Valencia shall be paid to Valencia as additional fees within thirty (30) days after rendition of a bill or statement therefor. Agency hereby grants to Valencia the right to enter the Facility at reasonable times to perform such repairs upon not less than two (2) business days (except in cases of emergency) advance notice to Agency. Except in cases of emergency, Valencia agrees to make reasonable efforts to minimize any interference with Agency’s operations caused by such entry and to coordinate such entry in advance with Agency’s academic and training schedule. (c) Agency is authorized to inspect the Facility prior to its use pursuant to this Agreement. Agency is aware, understands and agrees that the Facilities are sublicensed by Valencia to Agency in an "AS IS" condition without warranty or representation, express or implied, and the Agency hereby agreeing, acknowledging and affirming to Valencia that the Agency has had full opportunity to inspect, and accepts the Facilities in an "AS IS" condition. Agency understands and acknowledges that Valencia hereby expressly disclaims any and all warranties, whether express or implied, with respect to the Facilities, including without limitation, any warranty of habitability, warranty of merchantability, or warranty of fitness for a particular use. It is the Agency's intention to give up, waive, and relinquish all rights to assert any claim, demand, or lawsuit of any kind with respect to the condition of the Facilities, including without limitation the improvements, the real property, or the personal property sublicensed or otherwise provided for Agency's use hereunder. Valencia will not be required to make any repairs or pay any expenses concerning the operation and maintenance of the Facilities. Page 3 of 10 (d) Should there arise during the term of this Agreement the need for other than ordinary usual repairs, which would result in costs in excess of Valencia's budgeted expenses, and Valencia is unable or unwilling to provide for such repairs to restore the Facilities to a safe and usable condition, then either party may cancel this Agreement without further obligation to make such repairs or otherwise reconstruct the Facility. In the event this Agreement is cancelled pursuant to this subsection, neither party shall be required to be responsible for payment of the expenses. 6. Utilities. Agency's use of water and sewer, electricity, gas and all other applicable utilities shall be metered and billed by the utilities directly to Valencia. In the event any of these utility charges, as directly attributable to Agency's use of the Facility, such as an exorbitant amount of water usage for training drills, are billed to Valencia, Agency shall be obligated to reimburse the Valencia for these charges as billed to the Valencia. All such reimbursement payments shall be paid no later than thirty (30) days after the Valencia provides Agency written notice of all amounts due and copies of supporting invoices from the utility provider. 7. Indemnification and Insurance. The Parties hereby acknowledge that Agency is a governmental entity in the State of Florida. Without waiving its sovereign immunity, and if and to the extent permitted by law, Agency shall be liable for all bodily injury and property damage attributable solely to its negligent acts or omissions, or those of its employees acting within the scope of their employment. Under no circumstances shall Agency be liable to or for the negligent acts of Valencia or any person employed by Valencia or under the direction of Valencia. Neither party shall have tort liability for any amounts in excess of those limits per claim and per occurrence set for tort liability in Section 768.29 of the Florida Statutes. The foregoing shall not constitute an agreement by the Agency to assume any liability for the acts, omissions and/or negligence of any third party. Valencia shall be named as additional insured or a loss payee on all policies of insurance that the Agency carries or is self-insured for with regard to worker’s compensation, general liability, errors and omissions, administrative defense and automobiles. Upon request, Agency shall provide either a Certificate of Insurance evidencing such insurance or a Certificate of Self-insurance. Nothing contained in this Agreement shall be construed or interpreted as: (i) denying to either party any remedy or defense available to such party under the laws of the State of Florida; (ii) the consent of a Party to be sued; or (iii) a waiver of sovereign immunity of a Party beyond the waiver provided in law. 8. Compliance with Laws, Regulations, and Policies. Valencia and Agency shall, to the extent applicable to each party's respective obligations hereunder, throughout the Term, promptly comply, or cause compliance, with all laws and ordinances and the orders, rules, regulations and requirements (individually and collectively, the "Legal Requirements") of all federal, state, county and municipal governments and appropriate departments, commissions, boards subdivisions, and officers thereof (individually and collectively, the "Governmental Authorities"), and with requirements of the State Fire Marshal which may be applicable to the Facility, or the use or manner of use thereof. 9. Hazardous Materials. (a) Agency agrees to refrain, and to prevent its employees and contractors from bringing any Hazardous Materials onto the Facility in violation of any Legal Requirement. Agency hereby covenants and agrees, subject to the provisions of Florida Statutes §768.28 and without Page 4 of 10 waiving any sovereign immunity, to indemnify, defend and hold Valencia harmless, if and only to the extent permitted by law, from and against any and all claims, actions, administrative proceedings, judgments, damages, penalties, costs, expenses, losses and liabilities of any kind or nature that arise (indirectly or directly) from or in connection with the presence, release, spill or discharge of any Hazardous Materials in, on or about the Facility at any time resulting from the acts or omissions of Agency, its employees, agents or contractors. Without limiting the generality of the foregoing, the indemnity set forth above, if and only to the extent permitted by law, shall specifically cover any investigation, monitoring and remediation costs. The provisions of this paragraph shall survive the termination or expiration of the Agreement. (b) In the event, during the term of this Agreement, there is a spill, release, or other discharge of any hazardous substance on, in, under, or from the Facility, then, in addition to the provisions of any of the Legal Requirements requiring notice of such spill, release or other discharge, Agency shall immediately notify Valencia of such spill, release, or other discharge. Such notification shall be made by telephone and in writing, and, as soon as possible after such spill, release, or other discharge, Agency shall also provide a written follow-up notice providing Valencia with complete information concerning such spill, release or other discharge. (c) For the purposes of this License, “hazardous substances or materials” shall mean (i) hazardous substances, as that term is defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et. seq.; (ii) hazardous waste, as that term is defined by the Resource Conservation Recovery Act, 42 U.S.C. Section 6901, et. seq.; (iii) any pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials, or substances within the meaning of any Environmental Law, (iv) petroleum or petroleum substances; (v) asbestos in any form or condition; (vi) polychlorinated biphenyl (PCBs) or substances or compounds containing PCBs; and (vii) hazardous substances as that term may be defined by the Florida Statutes, the rules of the Florida Department of Environmental Protection, the rules of the United States Environmental Protection Agency and the rules of the St. Johns River Water Management District. (d) Agency will immediately notify Valencia, and provide copies upon Agency’s receipt, of all written complaints, claims, citations, demands, inquiries, reports, or notices alleging a spill, release, or discharge of any hazardous substance on, in, under, or from the Facility by Agency, employee, or independent contractor of the Agency during the term of this Agreement, or any extension thereof. To the extent specifically required by any of the other provisions of this Agreement, Agency shall promptly resolve any of those actions and proceedings to the satisfaction of Valencia 10. Notices. All notices required under this Agreement shall be in writing and shall be given by hand delivery, acknowledged electronic transmission or United States mail, first class postage prepaid, addressed as follows (or to any such other address or office as either party may designate in writing). Agency: City of Ocoee Fire Department Copy to: City of Ocoee Fire Department 563 S. Bluford Ave, Ocoee, Florida 34761 Attention: Fire Chief Tom Smothers Telephone: (407) 905 - 3140 Page 5 of 10 Valencia: Valencia College 1800 S. Kirkman Rd. Orlando, Florida 32811 Attention: Dr. Kathleen Plinske, President Telephone: (407) 582-3400 Copy to: Valencia College 1800 S. Kirkman Rd. Orlando, Florida 32811 Attention: William J. Mullowney, Esq., Vice President of Policy and General Counsel Telephone: (407) 582-3411 11. Default/Termination. This Agreement may be terminated by either party and be of no further force and effect, immediately upon the occurrence of any of the following events: (a). Failure of Agency to provide to Valencia in a timely manner fees as mutually agreed upon, or (b). Upon no less than ninety (90) days written notice stating the party’s intent not to participate in or otherwise to terminate the Agreement for any reason whatsoever, or (c) Immediately upon written notice of termination for the reasons provided in Section 5. (d) relating to other than ordinary and usual repairs for which Valencia is unable or unwilling to provide, or (c). Failure of any party to observe, perform or comply with any of the material terms, covenants or conditions of this Agreement, or (d). Failure of the State of Florida to appropriate the funds necessary to operate the Facility or Institute, or (e). The Interlocal Agreement is terminated, Agency ceases to participate in the Interlocal Agreement, the Facility is rendered substantially inoperable by any cause or for any reason, or Valencia's License Agreement with the School Board of Orange County is terminated. To the extent permitted by Federal and State Law, neither party shall be liable, whether contractually or in tort, for any consequential, special or indirect damages arising out of or in connection with this Agreement. 12. Miscellaneous Provisions. (a) No Other Parties. This Agreement is solely for the benefit of the parties executing this Agreement and no rights are intended, nor shall any rights accrue, to any third party. Valencia shall not have the right to assign this Agreement, but may grant written, nonexclusive sublicenses to third parties to use the Facility as described herein. Page 6 of 10 (b) Assignments and Sublicenses. Valencia may issue nonexclusive sublicenses to other agencies, containing the same substantive terms and conditions as set forth herein. (c) Binding on Successors. This Agreement shall run with the land and be binding on the parties, their successors and assigns and upon all entities operating for or on behalf of the parties to this Agreement. (d) Governing Law. This Agreement shall be construed, interpreted and controlled according to the laws of the State of Florida, with venue in Orange County, Florida. (e) Entire Agreement. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes all previous discussions, understandings and agreements with respect to those matters. (f) Severability. If any sentence, phrase, paragraph, provision or portion of this Agreement is held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be considered an independent provision and the finding shall have no effect on the validity of the balance of this Agreement. (g) Time of the Essence. Time is of the essence of this Agreement and of each and every provision hereof. (h) Counterpart Execution. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and, when taken together, shall constitute one and the same agreement. (i) Enforcement and Attorney’s Fees. Any litigation arising out of this Agreement shall take place in the Circuit Court for Orange County, Florida and the prevailing party will be entitled to recover its reasonable attorney’s fees and costs at trial and any and all appeals from the non-prevailing party. (j) Captions. The captions of this Agreement are for convenience only and are not to be construed as part of this Agreement and shall not be construed as defining or limiting in any way the scope or intent of the provisions hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES TO FOLLOW] Page 7 of 10 IN WITNESS WHEREOF, Agency and Valencia have caused this Agreement to be executed on the respective dates set forth below. “AGENCY”: CITY OF OCOEE, FLORIDA By: ____________________________ Rusty Johnson, Mayor Attest: _________________________ Melanie Sibbitt, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE CITY OF OCOEE THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD Approved as to form and legality ON ___________________, 20___ UNDER this ____ day of ______________, 20___. AGENDA ITEM NO. _____. FISHBACK DOMINICK By: __________________________ Richard Geller, City Attorney STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, by means of ☐ physical presence or ☐ online notarization, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared RUSTY JOHNSON and MELANIE SIBBITT, personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, FLORIDA. WITNESS my hand and official seal in the County and State last aforesaid this ____ day of _____________________, 2024. ____________________________________ Signature of Notary ____________________________________ Name of Notary (typed, printed or stamped) Commission Number (if not legible on seal):__________ Commission expires (if not legible on seal):__________ Page 8 of 10 “VALENCIA” THE DISTRICT BOARD OF TRUSTEES OF VALENCIA COLLEGE, FLORIDA By: By: Printed Name: Printed Name: Title: By: Date: Printed Name: STATE OF FLORIDA COUNTY OF: ORANGE The foregoing instrument was acknowledged before me this ____ day of ___________, 2024, by _________________, as ____________ of Valencia Community College, who produced as identification or is personally known to me and who acknowledged that he/she signed the instrument voluntarily for the purpose expressed in it. Notary Public Printed Name: My Commission Expires: Page 9 of 10 EXHIBIT “A” ORANGE TECHNICAL COLLEGE FACILITIES and Eric Olson Bus Compound Lots 36 and 45 and the West 2/3 of Lots 35 and 46, The McKoy Land Company Subdivision of Section 21, Township 23 South, Range 29 East, according to the plat thereof as recorded in Plat Book F, Page 48, Public Records of Orange County, Florida; AND The Northwest ¼ of the Southwest ¼ of the Southeast ¼ of Section 21, Township 23 South, Range 29 East, Orange County, Florida; AND The West 2/3 of the Northeast ¼ of the Southwest ¼ of the Southeast ¼ of Section 21, Township 23 South, Range 29 East, Orange County, Florida; AND Block .A. Orlando Central Park Number Fifty-Seven, according to the plat thereof as recorded in Plat Book 16, Pages 64, Public Records of Orange County, Florida as vacated by Resolution recorded in Book 3810, Page 3501; AND Block .B. Orlando Central Park Number Fifty-Seven, according to the plat thereof as recorded in Plat Book 16, Pages 64, Public Records of Orange County, Florida. Together With vacated road vacated by Certificate recorded September 19, 1958 in Book 428, Page 30, if any, lying within the Southwest ¼ of Section 21, Township, 23 South, Range 29 East, Orange County, Florida and east of John Young Parkway right-of-way; And Together With vacated road vacated by Certificate recorded April 19, 1963 in Book 1189, Page 492 as is contained within the above-described property; And Together With vacated road vacated by Certificate recorded July 7, 1967 in Book 1647, Page 571 and corrective Certificate recorded August 8, 1967 in Book 1655, Page 1002, if any, lying east of John Young Parkway right-of-way and west of the above-described property. Less and Except rights-of-way on north and west in Deed Book 554, Page 410, Book 234, Page 448, Book 1256, Page 26, and Book 4262, Page 1155 All lying west of the right-of-way of Chancellor Drive as established in Right-of-Way Deed recorded in Book 2639, Page 495. Page 10 of 10 EXHIBIT “B” PORTION OF ORANGE TECHNICAL COLLEGE FACILITIES OCCUPIED BY VALENCIA TO OPERATE A FIRE TRAINING FACILITY The area identified as being located within the fenced-in area at the property known as Orange Technical College which area shall include the following facilities and their approximate square footage: •TOWER •APPARATUS BAY •BURN BUILDING •SIX (6) PORTABLES (4 CLASSROOM, 1 OFFICE AND 1 EQUIPMENT) In addition, there shall be sufficient sections of parking identified by mutual agreement of the parties to provide parking for the benefit and use of Valencia which shall not impact the School Board’s use and operations of Orange Technical College. To the extent feasible, sufficient signage shall be provided to identify the areas of parking designated for Valencia’s use.