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Home My WebLink AboutAmendment #2 to AgreementAMENDMENT NO. 2 TO USE AGREEMENT BETWEEN BAYFRONT PARK MANAGEMENT TRUST AND BAYFRONT VENTURES This Amendment No. 2 (the or this "Amendment No. 2") is entered into this day of , 2001, by and between the City of Miami, a municipal corporation of the State of Florida (the "City") and Bayfront Park Management Trust, a Limited agency and instrumentality of the City of Miami having an office at 301 North Biscayne Boulevard, Miami, Florida 33132 (the '`Trust"), and Concorde Cruises, Inc., a South Dakota Corporation db'a Bayfront Ventures, formerly known as Bayfront Ventures, a Limited partnership ("User") for the purpose of amending Section Ten (10) and Section Eighteen (I8) of that certain agreement between the parties hereto dated June 25, I997 (the "Use Agreement"), pursuant to Section 36 thereof, in order to clarify certain provisions relating to Charitable Cruises and to permit fueling at the Facility subject to certain conditions. RECITALS: WHEREAS, on June 25, I997, the Trust and User executed a Use Agreement which received approvals by the Miami City Commission, the U.S. Army Corps of Engineers and the Oversight Committee established by the Governor of the State of Florida (the "Use Agreement"); and WHEREAS, Section 10, Charitable Cruises, of the Use Agreement states that the User shall provide the Trust with four Charitable Sails and two Community Sails each Contract Year, and an amendment to the Use Agreement executed between the parties on September 26, 1997 (the "Amendment to Use Agreement"), states that the User shall provide the Trust with a special Community Sail each Contract Year (hereinafter called the "Special Community Sail") (the Charitable Sails, Community Sails and Special Community Sail are collectively referred to as "Charitable Cruises"); and WHEREAS, no Charitable Cruises have been utilized as of the date of this Amendment No. 2 and the parties agree that the Use Agreement should be amended as hereinafter set forth with regard to their use; and WHEREAS, Section 18 of the Use Agreement prohibits the fueling of the vessel at the Facility; and WHEREAS, in March. 2000, at the request of the User, the Trust approved a motion to allow the fueling of the vessel at the Facility under limited circumstances, namely, a) that fueling may only occur from the land side of the Facility, and only between the hours of midnight and 6 a.m., and b) that the User obtain and provide copies to the City and to the Trust of all insurance, environmental protections, required permits and licenses and other assurances that may be required by the City; and WHEREAS, the parties agree that the Use Agreement should be amended to permit the refueling of the vessel at the Facility in accordance with the Trust decision. NOW, THEREFORE, in consideration of the foregoing and of the mutual agreements and covenants of the parties as set forth in this Amendment No. 2, the City, the Trust, and the User agree as follows: 1. RECITALS: The Recitals are true and correct and are hereby incorporated and made a part of this Amendment No. 2. ?. SECTION 10. Charitable Cruises subsection (a) of the Use Agreement is amended by the addition of the following Ianguage at the end of the existing paragraph (a): There shall be no carryover Charitable Sails. 3. SECTION 10. Charitable Cruises subsection (b) of the Use Agreement is amended by the addition of the following language at the end of the existing paragraph (b), notwithstanding any provisions to the contrary: Three Community Sails from the Contract Year October 1, 1998 to September 30, 1999, and t'vo Community Sails from the Contract Year October 1, 1999 to September 30, 2000 shall be available for use by the Trust until September 30, 2001. There shall be no required notification period for use of the Community Sails relating to Contract Years October, 1998 to September 30, 1999, and October 1, 1999 to September 30, 2000. All carryover Community Sails from the Contract Years October 1, 1998 to September 30, 1999 and October 1, 1999 to September 30, 2000 shall be used by September 30, 2001. Commencing with Contract Year October 1, 2000 to September 30, 2001 and continuing throughout the term of the Use Agreement, including any extensions thereto, any unused Community Sails at the end of each Contract Year shall be carried over for one year only, to the end of the next Contract Year. After September 30, 2001, at no time shall there be more than four Community Sails available to the Trust in any one Contract Year. GMNI,Agreemenis.'E irr gam vess Dec 12 Page 2 of 5 3. SECTION 10. Charitable Cruises, subsection (h) is amended in its entirety to read as follows: (h) "Special Community Sail" User shall provide the Trust with one special community sail each year (the "Special Community Sail") for the benefit of the Trust or of any charity designated by the Trust. This Special Community Sail shall be separate from and in addition to the two Community Sails described in paragraph 10(b) of the Use Agreement. User shall provide the entertainment, food and beverage for such Special Community Sail at User's expense and shall donate the proceeds of said sail to the Trust or any charity designated by the Trust. The term "Proceeds," for the purpose of this section 10 (h), shall be defined to mean, "Any revenue generated in connection with the Special Community Sail, less sales tax, except for revenues generated by gaming activities and gift shop sales." Any unused Special Community Sails at the end of each Contract Year shall be carried over automatically, on a cumulative basis, to the next Contract Year throughout the teen of the Use Agreement, including any extensions thereto." The former subsection (h), as set forth in the Amendment to Use Agreement, shall be deleted in its entirety. 4. SECTION 18. Limitation of Activities at Facility, is amended in its entirety to read as follows: "No painting of the vessel or heavy maintenance shall occur at the Facility. 'Fueling at the Facility may occur only from the land side of the Facility and only between the hours of midnight and 6 a.m. and only by the transfer of fuel in an environmentally sensitive manner, using best management practices, from a properly licensed, permitted, 'inspected and insured fuel transfer vehicle Iocated on the land side of the Facility, and, further, subject to the following conditions: (a) User shall comply with all Federal, State, County and Iocal statutes, laws, rules and regulations pertaining to such fueling activity, including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes and shall require the fuel transfer vehicle to obtain all required permits and licenses, submit to all required inspections, and comply with all Federal, State, County and local statutes, laws, rules and regulations pertaining to such fueling activity, including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes; (b) Prior to the commencement of fueling, activities at the Facility, User shall submit to the City, for the written approval of the City of Miami's Risk Management Administrator, the following insurance policies kvhich the User shall require the fuel transfer vehicle to obtain: Comprehensive General Liability insurance policy, with carriers of recognized standing, with limits of liability of at least One Million Dollars (S 1,000.000); Environmental Impairment Policy with limits of liability of at least One Million Dollars (S 1,000,000); Worker's Compensation statutory coverage. All u,til\I kcreemenisaiPT ea vcss Dec t2 Page of5 liability policies shall name the City of Miami, the Trust and the U.S. Army Corps of Engineers as "Additional Insureds" and shall provide for thirty days' notice to said "Additional Insureds" in the event of cancellation. modification by change in coverage, or non -renewal. All such insurance must be primary and be required to respond to and pay claims prior to any other available coverage; (c) User shall indemnify, protect, defend and hold harmless the Trust, its Board members, and the City, its officials and its employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the refueling. activity; (d) No fueling shall occur from the waterside of the Facility; (e) User shall obtain and provide copies to the City and to the Trust of all insurance, environmental protections, required permits and licenses and other assurances that may be required by the City of Miami." 6. Except as specifically provided herein, all of the terms and provisions of the Use Agreement and the Amendment to Use Agreement shall remain in effect. IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be executed by their respective officials thereunto duly authorized, as of the day and year first above written. Attest: Walter J. Foeman, City Clerk Witnesses: —printed Name: `jcSC' (tee! I Printed Name: The City of Miami By: Carlos A. Gimenez, City Manager Bayfro By: Jay Const Man, emt T z, Executive Di ector GMM/Agreernents,73PTgam vess Dec r2 Page 4 of 5 (Prin Prin es: / L ed Name: r 4/ 7-4q4,45 d Name: APPROVED AS T$ FO CORRECTNE ity Attorney Concorde Cruises, Inc., a South Dakota Corporation d/b/a Bayfront Ventures B v: Print e 51A'fy �, es',rt Printed itle: Pees/oery-7- APPROVED AS TO INSURANCE REQUIREMENTS: By: t Mario E. oldevilla, Administrate Risk Management GMM-Agreements/131'Tgam vess Dec I 2. • o/oai,p3-0 iv Page 5 of 5