TERMINAL ACCESS AGREEMENT
BETWEEN SADDLE CREEK TRANSPORTATION, INC.
AND POLK COUNTY, FLORIDA
This Agreement entered into this 1st day of October, 2013, by and between Saddle Creek
Transportation, Inc., and its related and/or affiliated entities (collectively “SCTI”) with its principal
offices located at 3010 Saddle Creek Road, Lakeland, FL 33801 (“SCTI Terminal”) and Polk County, a
political subdivision of the State of Florida ("County").
Whereas, the parties desire to enter into an agreement granting access to County into the SCTI
terminal to fuel at the Compressed Natural Gas Station (“CNG Station”);
NOW, THEREFORE, in consideration of the mutual terms, conditions, and promises hereof, the
parties agree as follows:
1.
Grant of Access. County is hereby granted the rights and privileges of access to the SCTI
Terminal located at 3010 Saddle Creek Road, Lakeland, Florida 33801 during hours agreed
upon by the parties, and SCTI further grants County authorization to fuel at the CNG Station.
2.
County Compliance. County warrants that its equipment and operations shall comply with
all SCTI Terminal and CNG Station rules, policies, and procedures as provided by SCTI and
with all applicable Federal (including Department of Transportation and Environmental
Protection Agency), state, and local laws and regulations. SCTI shall have the right to delete,
add and/or amend its rules, policies, and procedures at any time, and any such deletion(s),
addition(s) and/or amendment(s) shall become effective immediately upon delivery to County.
3.
Indemnification. To extent permitted by Florida Statute 768.28, and other applicable law,
County hereby agrees to protect, defend, indemnify, and hold harmless SCTI, its affiliates,
parents, subsidiaries, employees, agents, representatives, contractors, and any other company
or individual affiliated or in contractual privity with SCTI in ownership, leasing, and/or
operation of the SCTI Terminal and/or CNG Station from any and all claims, demands, causes
of action, expenses (including costs and attorney’s fees) for bodily injury or death to any
persons, including, but not limited to, County’s or SCTI’s agents, employees, invitees,
representatives, and subcontractors, or damage to or the loss or destruction of any property
arising directly or indirectly out of or in connection with the performance of this Agreement or
the presence of or activities of County, or any County employee, agent or invitee, on or
adjacent to the SCTI Terminal, unless caused by the sole gross or willful negligence of SCTI.
Nothing herein shall be deemed a waiver, express or implied of the County’s
sovereign immunity under Section 768.28, Florida Statutes or considered a waiver of
immunity or the limits of liability beyond any statutorily limited waiver of immunity
or limits of liability which may have been adopted by the Florida Legislature in
Section 768.28, Florida Statutes or other state statute. To the extent anything
contained in this Agreement constitutes a waiver of sovereign immunity, such terms
and conditions shall be interpreted to the fullest extent possible to effectuate the intent
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of the parties, but deleting any terms or conditions which would constitute a waiver of
sovereign immunity.
4.
Insurance. The County represents and warrants that it is self-insured as authorized by Section
768.28(16)(a), Florida Statutes with respect to General Liability, Automobile Liability, and
Worker's Compensation insurance. Upon request, the County agrees to provide SCTI a
certificate of self-insurance evidencing such coverage, and that no cancellation or material
change in coverage will be affected without thirty (30) days prior written notice to SCTI.
5.
Risk of Loss. County acknowledges and agrees that it bears all risk of damage or loss to any
equipment, or any portions of equipment, whether owned by County, SCTI or others,
including theft or unexplained loss or damage, whether or not covered by any insurance, while
County is around or located on the SCTI Terminal, except to the extent such damage or loss is
due solely to the gross negligence of SCTI or its employees or agents.
6.
Assignment. County may not assign, transfer, sublet, pledge, or encumber any of its rights
under this Agreement without the express written consent of SCTI.
7.
NO WARRANTIES. SCTI, AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS,
AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED,
GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE
SERVICES OR CNG STATION. COUNTY UNDERSTANDS THAT USE OF THE
SERVICES AND CNG STATION IS AT COUNTY’S OWN RISK AND THAT SCTI
PROVIDES THE SERVICES AND/OR ACCESS ON AN “AS IS” “WHERE IS” BASIS
“WITH ALL FAULTS” AND “AS AVAILABLE.” TO THE EXTENT PERMITTED
UNDER LAW, SCTI EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR
MERCHANTABILITY,
SATISFACTORY
QUALITY,
FITNESS
FOR
A
PARTICULAR
PURPOSE,
WORKMANLIKE
EFFORT,
AND
NONINFRINGEMENT. SCTI DOES NOT GUARANTEE THE FUEL SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
8.
Limitation of Liability. If SCTI breaches this agreement or is otherwise liable, you agree that
County’s exclusive remedy is to recover from SCTI or any affiliates, resellers, distributors,
and vendors, direct damages up to an amount equal to amount paid by County for the previous
month fueling. COUNTY CANNOT RECOVER ANY OTHER DAMAGES OR LOSSES,
INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, LOST PROFITS, SPECIAL,
INDIRECT, INCIDENTAL, OR PUNITIVE. These limitations and exclusions apply if this
remedy does not fully compensate you for any losses or fails of its essential purpose or if SCTI
knew or should have known about the possibility of the damages. To the maximum extent
permitted by law, these limitations and exclusions apply to anything related to this agreement
such as loss claims for breach of contract, warranty, guarantee, or condition; strict liability;
negligence; misrepresentation or omission; trespass; violation of statute or regulation; or
unjust enrichment.
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9.
Construction of Instrument. County acknowledges and agrees that the granting of the
privilege of access and permission to fuel constitutes a non-assignable license, and that same
may be revoked by SCTI at any time, with or without cause, and without prior notice to
County. County further agrees that upon notice of revocation, County shall remove from the
SCTI terminal any County equipment and return any access cards or keys to SCTI. In no
event shall any part of the SCTI Terminal be deemed or considered occupied by County or in
County’s charge, custody, or control.
10.
Governing Law, Venue, Attorney’s Fees. It is agreed by SCTI and County that Florida law
shall govern, without reference to the conflict of laws contained therein, disputes involving
any terms of this Agreement or interpretation thereof, whether arising in contract, tort or
otherwise. It is also agreed that venue shall be in Polk County, Florida. SCTI and County
agree that should any conflict or litigation arise between the parties to this Agreement, the
prevailing party shall be awarded reasonable attorney fees and court costs.
11.
Notices. Any notices required hereunder shall be given in person or by United States Mail,
Certified Mail, Return Receipt Requested, at the address shown or at such other address as
either party may later designate in writing.
SCTI
___________________________
___________________________
___________________________
ATTN: Contract Administrator
County:
Polk County
P.O. Box 9005, Drawer CA01
Bartow, FL 33831-9005
ATTN: County Manager
Copy to:
County Attorney's Office
P.O. Box 9005, Drawer AT01
Bartow, FL 33831-9005
12.
Nonwaiver. Failure of either party to insist on performance of any term or condition of this
Agreement or to exercise any right or privilege hereunder shall not be construed as a waiver of
such term, condition, right or privilege in the future.
13.
Severability. In the event any term, condition, provision or clause of this Agreement is held
invalid or unenforceable, for whatever reason, such provision shall be deemed deleted from
this Agreement and the remaining provisions of this Agreement shall remain in full force and
effect.
14.
Section Headings. All section headings in this Agreement are inserted for convenience only
and shall not affect any construction or interpretation of this Agreement.
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15.
Preferred Form. This Agreement exclusively and completely states the rights and
obligations of the parties hereto with respect to the subject matter hereof and supersedes all
other agreements, oral or written, with respect to such subject matter.
16.
Effective Date. This Agreement shall become effective upon the date of approval by the Polk
County Board of County Commissioners.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate the day and year first above written.
POLK COUNTY, FLORIDA, by
and through its Board of County
Commissioners
By: _____________________
Melony M. Bell, Chair
SADDLE CREEK TRANSPORTATION, INC.
By: _________________________________
Printed Name: _________________________
Title: _______________________________
ATTEST:
Stacy M. Butterfield
Clerk and Comptroller to the Board
By: ______________________
Deputy Clerk
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