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HomeMy WebLinkAboutExhibit 1USE AGREEMENT ORANGE BOWL STADIUM This Agreement is entered into as of the day of , 2007 and between the City of Miami, a municipal corporation of the State of Florida ("City") and Fiibon S.A. (hereinafter referred to as the "User"). In consideration of the mutual covenants and promises herein contained, the City hereby grants to User the right, privilege and permission to enter into and upon the municipal facility owned by the City and known as the Miami Orange Bowl Memorial (the "Facility") for the Permitted Use and during the Use Period, as the terms are hereinafter defined, subject to the terms and conditions set forth in this Agreement. 1.. TERM: The term of this Agreement shall commence upon full execution hereof and shall terminate upon fulfillment of all responsibilities and obligations of the parties hereunder. 2. PERMITTED USE: User shall have the exclusive right to use the Facility for the purpose of presenting a soccer match ("the, "Event") during the Use Period and for no other purpose. 3. USE PERIOD: The Use Period ("Use Period") shall consist of the periods for set- up and dismantling and for presentation of the Event. There shall be one (1) Event day, on July 28, 2007. The period for presentation shall commence at 7:00 a.m., and shall terminate at 11:55 p.m., on the day of the Event ("Event Hours"). Unless otherwise agreed by the Stadium Manager, the set-up period shall commence no earlier than 7:00 a.m., one day prior to each Event period and dismantling shall begin immediately upon the conclusion of the Events and conclude within twenty-four (24) hours thereafter. In addition, each team competing in the Event shall have the right to conduct a light one -hour practice at the Stadium, the day before each game. Each team shall have access to the locker rooms during such scheduled practices. Such practices shall be scheduled at times mutually agreed upon by the parties. Should User require a longer period for set-up and dismantling, or should User require services of. City personnel outside normal City working hours, the same may be allowed by the Stadium Manager, in consideration of an additional fee. 4. USE FEE: The Use Fee shall be the sum total of the Basic Use Fee, the Ticket Surcharge, and the Additional Charges. Filbon Agreement July 28 2007 cln C.IAin # Q1— I I (' A. The Basic Use Fee ("Basic Use Fee") for the use of the Facility for the Event shall be $,1,0,000, exclusive of federal, state or locally imposed taxes payable upon the admission price. Basic Use Fee includes air conditioning, house lights for ordinary use and water during the period commencing with set-up and concluding with dismantlingof each Event, and stadium lights during the Event Hours only. B. The Ticket Surcharge ("Ticket Surcharge") is based upon the actual admission price, excluding taxes. User shall Ievy and collect, on behalf of the City, a Ticket Surcharge on each paid admission. The amount of the surcharge shall be computed as follows: Price of Admission Surcharge $ 1.00 to $ 14.99 $0.75 $ 14.99 to $29.99 $1,00 $30.00 and over $2.00 Each printed ticket shall be itemized to show the admission price, applicable taxes, any service charge from outside ticket agencies, and the City's ticket surcharge. User agrees to record the Ticket Surcharge as a separate item in the statement of accounts for each Event. User shall be responsible for the collection of the Ticket Surcharge, which shall be held by User in trust for the City. User may include the ticket surcharge in the cost of the ticket. User shall pay to the City the Ticket Surcharge upon demand, and/or as soon as possible after the conclusion of each Event, but in no event later than 72 hours of the last day of the Use Period. User shall maintain all books and records pertaining to the Event available for City's inspection and auditing as provided herein. C. in addition to the Basic Use Fee and Ticket Surcharge, the User shall pay the Additional Charges ("Additional Charges"), which shall include payment for Event Personnel (as defined in Section 7A), additional services, equipment or other accommodations or materials requested by and furnished to the User, all applicable taxes, including State of Florida sales tax, and all other amounts due by User under this Agreement. Payment of Additional Charges shall be due at the same time as payment of the Basic Use Fee and Ticket Surcharge. 5. PAYMENT OF USE FEE: User agrees to pay to the City the Use Fee as follows: A. Reservation Deposit: The Reservation Deposit (the "Reservation Deposit") shall be in the amount of $5,000, which represents 50% of the minimum Basic Use Fee for the Event, and shall be paid upon full execution of this Agreement, and as a condition Filbon Agreement July 28 2007 tin 2 precedent to its effectiveness. The Reservation Deposit shall be non-refundable, except where the Event is canceled by the City under Section 23 below, or as a result of force majeure. In addition, User shall upon full execution of this Agreement, and as a condition precedent to its effectiveness, deliver to the City a deposit, in the amount of $5,000, to be held by the City throughout the Use Period. The City shall return the Deposit, or the unexpended portion thereof, to the User upon full satisfaction of all of User's obligations hereunder. B. Balance of Use Fee: The balance of the Use Fee shall be paid as soon as possible after the conclusion of the Events. C. Form of Payment: All payments from User to City shall be by wire transfer, cashier's check or certified check drawn from a local bank. User understands and agrees that the Stadium Manager, at his/her option, shall have the right to demand payment of all amounts due to the City at the time of the closing of the 'ticket gates for the Events, but in no event later than ten (10) days after the expiration of the Use. Period. The moneys that are on hand, or held at all remote ticket outlets, shall be deemed to be "on premises gate receipts" and shall be available to the City to be applied against all amounts due the City. 6. INTENTIONALLY LEFT BLANK 7. EVENT PERSONNEL, UTILITIES AND SUPPLIES:.. Except as otherwise specifically provided, User shall be responsible for the staffing of the Events and shall pay, as an Additional Charge, all charges for Event Personnel, utilities, supplies or other services, required in connection therewith, and not otherwise provided by City as provided herein, which include: A. Event Personnel: User shall furnish, at its sole expense, the Event. Personnel ("Event Personnel"), which are determined by User and the City to be reasonably necessary, including ticket sellers, ticket takers, ushering staff, stagehands, spotlight operators, musicians, projectionists, box office personnel, installation personnel, etc. Event Personnel also includes City personnel, which shall be provided by the City at User's cost and expense, if in the reasonable estimation of the Stadium Manager and User such personnel is required (the "City Event Staff'). City Event Staff includes, but is not limited to, event supervisor, janitorial staff, office attendants, groundsmen, elevator operators, technicians, security staff, and all other personnel necessary for the proper conduct of each Event. When such personnel is required, the Stadium Manager shall, at least sixty (60) days prior to the commencement of the Use Period, Filban Agreement July 28 2007 cln 3 advise User of such requirement, including:the estimated hours of work and rates of pay of City Event Staff. B. Police: User shall be responsible for payment of police services required for the Event. The Stadium Manager, after full discussion with User concerning the type of Event and related activities, shall contact the City's Police Department to ascertain the level of police and/or other security staffing necessary for adequate crowd control, traffic circulation, and safety and/or other required security prior to, during and after each Event. At least sixty (60) days prior to the Event, the Stadium Manager shall advise User of the security requirements, including an estimate of the number of security personnel required, the estimated hours of work and applicable rates of pay. User shall be responsible for the direct payment for police services upon conclusion of each Event. If, during the course of the Event, the City reasonably determines that security for the Event is insufficient for proper crowd control, then the City may summon such additional officers as are deemed necessary. User shall be responsible for payment of such additional security at the applicable rate, which shall be the rate normally charged for such officer, depending on factors such as whether the officer is off -duty or working overtime. In the event that off -duty police officers are summoned, then the compensation shall be based on the greater of four-(4) hours or the actual time -devoted -to the Event, including "administrative" time, such as time devoted to booking prisoners, etc. Payment of additional security shall be made upon the conclusion of the Event. C. Fire: Not later than fifteen (15) days prior to the commencement of the Use Period, User shall provide to the Stadium Manager two (2) copies of a diagram/floor plan of the proposed Event layout to the office of Fire Department Plans Examiner, 444 S.W. 2nd Avenue, 10th Floor, Miami. Fl. 33130. Additionally, not later than ten (10) days prior to the commencement of the Use Period, User shall obtain and deliver to the Stadium Manager an Assembly Permit, and such other permits as may be required by the City, and of which the User is aware, relative to each Event. Fire department manpower requirements for the Event shall be as stipulated by the Fire Marshall and approved by the Stadium Manager. D. Additional Utilities, Services and Equipment: User shall pay to the City, as an Additional Charge the prevailing fee charged by the City for stadium lights required at times other than Event Hours, or for other services provided by the City at the request of User, and not Hawn Agreement July 28 2007 cln 4 otherwise provided as set forth herein, such as the services of groundsmen, technicians and other City, personnel for services rendered outside of normal City working hours, including setup and/or dismantling. E. Cost Confirmation: At least sixty (60) days prior to the commencement of the Use Period, the City shall provide to the User a "Cost Confirmation" sheet which shall describe, to the extent known and available, the Additional Charges. User understands and agrees that the. Cost Confirmation represents the City's good faith estimate of the Additional Charges, but the same may change in accordance with the provisions of this Agreement. 8. UNION REOUIREMENTS: User shall ensure compliance with all necessary union requirements (if applicable), of which User is aware, in connection with the personnel and services engaged for presentation of the Event. The City shall use its best efforts to inform User of the terms of any trade or employeeunion agreement, written or oral, affecting all relevant personnel or services used in connection with the Event. 9. PARKING: The City shall provide and control all parking for the Event. The City agrees that charges to the public shall not exceed the usual and customary charges for parking at the Facility, unless otherwise agreed. All parking revenues and all parking rights shall belong to the City. User shall receive 200 complimentary parking passes for the Event. 10. ATTENDANCE LIMITATION: A maximum attendance of 50,000 persons will be permitted for the Event. User represents and warrants that no more than 50,000 number of tickets will be printed. 11. ADMISSION AND TICKETS: All entry to the Facility on the Event dates shall be by ticket only, purchased at the full ticket price established by the User, except for employees of User and City whose presence is required for the presentation of the Event and who have received passes issued by User, and for the working media and working broadcast partners who have received passes issued by the User or as otherwise provided by this Agreement. All tickets shall be printed by a bonded printer, if feasible, and listed on a ticket manifest. The ticket manifest, which shall specifically state the number of tickets printed and the serial numbers, shall be presented to the Stadium Manager or his/her designee within sixty (60) days following full execution of this Agreement. User shall prepare a complete box office statement of all admission tickets sold or distributed as complimentary tickets. User shall have the right to print and design the tickets, and place advertising thereon. Filbon Agreement July 28 2007 cln 5 City shall permit User to utilize a; maximum of five hundred total number of tickets, which User is authorized to have printed; for each Event day as Complimentary Tickets for promotional purposes, Complimentary Tickets issued in excess of the five hundred limitation shall have a value equal to the average ticket price offered for sale to the public and shall be included in the calculation of gross ticket sales for determination of the Ticket Surcharge as described in Section 4 above. 12. GATE OPENING TIME: Doors shall open as advertised and as approved by the City. All tickets and advertising shall indicate opening time. The City reserves the right to change or adjust the door opening time as it deems appropriate based on crowd control conditions. 13. CONCESSION RIGHTS: A. Food and Beverage Concessions: User understands and agrees that this Agreement shall not grant to the User any food and beverage concession rights, which belong to an exclusive concessionaire for the Facility. Accordingly, the sale of all food or beverages except by the exclusive concessionaire is strictly prohibited. B. Novelties and Merchandise:' User shall have the exclusive right to sell, or give away, all non -consumable merchandise of all types or descriptions, including but not limited to, licensed merchandise, souvenirs, novelties, premiums, magazines and programs at the Facility on each Event day. All concessionaires engaged by User for this purposes shall be granted access to the Facility in order to deliver their supplies and render their services. City shall provide sufficient space for such purposes. User shall have the right to set prices (if any) for such merchandise, and shall retain all revenues (if any) therefrom. Neither the City nor any of its agents, contractors or employees shall sell or give away any such merchandise at, near, or around the Facility on Event days. 14. CONDITION OF FACILITY/REMOVAL OF USER'S EFFECTS: A. User has inspected the Facility and accepts it in "as -is" condition. User agrees to tear down and remove all of User's effects immediately after the completion of the last Event day. B. CITY shall not be liable for any failure to perform its obligations where such failure is caused by conditions beyond its control, including, but not limited to, Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, events in foreign countries that affect the CITY and its citizens, hostilities Filbon Agreement July 28 2007 cln 6 (whether war is declared or not), civil war, rebellion, revolution, insurrection, riots, street celebrations or protests, military or usurped power or confiscation, terrorists activities, nationalization, government sanctions or restrictions, blockage, embargo, labor dispute, strike, lockout or interruption, or the failure of services such as electricity or telephone. User agrees that the cost of damagerepairs, or any repairs necessitated as a result of the use of the Facility by User shall be deducted from the Deposit. The City shall have the right to remove from the Facility, at User's cost and expense, any of User's effects remaining in or on the grounds of the Facility at the end of the Use Period. Alternatively, the City may charge the User for storage, at a rate equal to the lowest use rate available, per day, for each day or part of a day that said effects remain in or on the grounds of the Facility. All amounts due by User under this Section shall be deducted from the Deposit and any deficiency shall be paid by User upon demand. C. The City shall have the right to enter upon the Facility at any time during the Use Period, as it deems necessary. 15. AUDIT AND INSPECTION RIGHTS: The City may, at reasonable times, and for a period of up to three (3) years following the expiration of the, Use Period, audit, or cause to be audited, those books and records of User which are related to this Agreement. User agrees to maintain all such books and records at its principal place of business for a period of three (3) years after expiration of the Use Period. 16. PUBLIC RECORDS: User understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. User's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 17. COMPLIANCE WITH APPLICABLE LAWS: User agrees to obtain all required licenses and permits of which it is made aware by City and to abide by and comply with all applicable laws, rules, regulations, codes and ordinances in the use of the Facility and/or presentation of the Event. City agrees to abide by and comply with all applicable laws, rules, regulations, codes and ordinances in managing the Facility. Fithian Agreement July 28 2007 cln 7 18. RULES AND REGULATIONS FOR THE FACILITY: By execution of this Agreement, User acknowledges that it has received and fully understands the "Rules and Regulations for Use of City of Miami Municipal Facilities" which has been furnished to User prior to the execution hereof. User hereby represents and warrants to the City that User shall abide by each, and shall not knowingly permit the violation of any, rule and regulation set out therein. In the case where the terms stated in the "Rules and Regulations" are in conflict with this Agreement, the terms in this Agreement shall be binding and enforceable, overriding the terms in the "Rules and ReguIations." 19. INDEMNIFICATION: A. User shall indemnify and save harmless the City of Miami and their officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses, (including attorney's fees) of liabilities (collectively referred to as "Liabilities") by reason of injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from or in connection with (i) the performance or non performance of the services contemplated by this Agreement which is directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of User or its employees, agents, or subcontractors (collectively referred to as "User"), unless this act, omission, default or negligence is solely caused by the City of Miami or (ii) the failure of the User to comply with any of the paragraphs herein or the failure of the User to conform to statutes, ordinances or other regulations of any governmental authority, federal or state, in connection with the performance of this Agreement. User expressly agrees to indemnify and hold harmless the Indemnities, or any of them from and against all liabilities which may be asserted by an employee or former employee of User, or any of its subcontractors, as provided above, for which the User's liability to such employee or former employee would otherwise be limited to payments under state Worker's Compensation or similar Iaws. 20. RISK OF LOSS: User understands and agrees that except where caused by the negligence or misconduct of City, its agents or employees, the City shall not be liable for any Ioss, injury or damage to any personal property or equipment brought into the Facility during the Use Period by User or anyone whomsoever on User's behalf, during the time that the Facility is under the control of, or occupied by the User. All personal property placed or moved in the Filbon Agreement July 28 2007 cln 8 Facility during the Use Period shall be at the risk of User or the owner thereof. User further agrees that it shall be responsible to provide, security whenever personal property either owned or used by the User, its employees, agents or subcontractors is placed in the Facility, including any property or equipment necessary for set-up and dismantling, whether or not the Facility is open to the general public. 21. INSURANCE: User shall obtain, at User's expense, and keep in effect during the term of this Agreement, general liability insurance, in a comprehensive form, in the following insurance limit amounts; General Aggregate: , $1,000,000 Products/complete operations: $1,000,000 Personal/advertising injury: $1,000,000 Fire damage (any one fire): $ 50,000 Liquor liability (where applicable): $1,000,000 Such insurance shall be written by insurance companies which are satisfactory to the City and which are registered to do business in the State of Florida. All policies shall be endorsed to name the City and its directors, officers, employees and agents, as additional insured, to provide that the City shall be given thirty (30) days advance written notice of cancellation, and shall be written on an occurrence basis. User shall provide to the City certificates evidencing the required insurance coverage at least thirty (30) days prior to the commencement of the Use Period and throughout the term of the Agreement, as the insurance policies expire. Binders are not acceptable. 22. DEFAULT: If either User or City fails to comply with any material term or condition of this Agreement, or fails to perform any of its obligations hereunder, then that party shall be in default. Upon the occurrence of a default hereunder which is not cured within five (5) days after the date of the default, the non -defaulting party, in addition to all remedies available to it by law, may immediately, upon written notice to the defaulting party, terminate this Agreement. If User is the defaulting party, all deposits, payments, advances, or other compensation paid by the User to the City shall be retained by the City. If the City is the defaulting party, the City will return to User all deposits, payments, advances, or other compensation paid by User to the City. 23. CITY'S TERMINATION RIGHTS: Filbon Agreement July 28 2007 c!n 9 A. Termination for Convenience: The City shall have the right to terminate this Agreement for convenience, in its sole; discretion, upon at least 6 months written notice to User, Additionally, the City shall have the right to cancel this Agreement at any time if, in the exercise of its reasonable discretion, the City determines that the presentation of the Event, at the scheduled time, is not in the best interest of the City due to circumstances beyond the City's reasonable control. B. Termination for Cause: The City shall have the right to terminate this Agreement, without notice or liability to User, upon the occurrence of an event of default, as described in Section 22 above. ti C. Other Termination Rights: The City shall have the right to terminate this Agreement in the event that the Facility is condemned, or in the event of its damage due to fire, windstorm, catastrophe or other act of God and the City decides, in its sole discretion, not to repair or rebuild. D. Return of the Deposit: Except where this Agreement is terminated for cause, User shall be entitled to a refund of the Deposit, or so much thereof as has not been app]ied, upon termination of the Agreement, after satisfaction of all amounts due by User hereunder, if any. 24. NONDISCRIMINATION: User represents and warrants to the City that User does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with User's use of the Facility or presentation of the Event on account of race, color, sex, religion, age, handicap, marital status or national origin. User further covenants that no individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination in connection with the use of the Facility under this Agreement. 25. ASSIGNMENT: This Agreement shall not be assigned by User, in whole or in part, without the prior written consent of the City, which may be withheld, or conditioned, in the City's sole discretion. This Agreement may not be assigned by City in whole or in part, without the prior written consent of the User, which may be withheld, or conditioned, in the User's sole discretion, 26. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by overnight delivery (e.g., FedEx, UPS, Fi1bon Agreement July 28 2007 cln 10 DHL), addressed to the other party at the address indicated herein or to such other address as a party may designate by giving notice in the manner herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date ofactual receipt, whichever is earlier. TO USER: TO THE CITY: Alejandro Dominguez Filbon S.A. Roque Saenz Pena 1119 , Piso 4 of 401/409 Buenos Aires, Argentina 1035 Pedro Hernandez, City Manager 3500 Pan American Dr Miami, FL 33133 Laura Billberry, Director Public Facilities 400 SE 2nd Avenue Miami, FL 33131 Cc: Jorge L. Fernandez, City Attorney 444 Southwest 2nd Ave. Suite 945 Miami, FL 33130 27. SPECIAL REGULATIONS: User agrees to comply with each of the following Special Regulations: A. Beverages: There shall be no bottles or cans of any sort brought into the Facility during the presentation of the Event. User agrees to advise the public of this provision byincluding this restriction in all advertisement for the Event. B. Licensing Contract; User, for itself and on behalf of the artist or promoter of each Event, represents and warrants to the City that all copyrighted programming to be presented has been duly licensed or authorized by the copyright owners or their representatives. User hereby indemnifies and holds the City harmless from and against any and all claims, losses or expenses that may arise in connection with the provisions contained herein. C. Restriction for Planing Field: User agrees to restrict all vehicles from the grass and playing field. Any exception to this restriction may only be granted by the Facility Grounds and Turf Manager for the Facility. D. Music License: User shall obtain a copy of the blanket BMI and/or ASCAP license in connection with the Events. User represents and warrants that all BMI and/or ASCAP fees for the Events will be paid by User and further agrees to indemnify and hold the City harmless from any and all claims, losses or expenses incurred with regard thereof. Filbon Agreement July 28 2007 cln 11 28. MISCELLANEOUS PROVISIONS: ' A. User shall identify the City in all promotional material and press releases prepared or issued in connection with the Event. The City shall be identified as "The City of Miami, Florida" or "Miami." B. User shall provide to the City 75 promotional tickets for each Event, for the purpose of promoting the Facility, which tickets shall not be included in the Complimentary Tickets described in Section 11 hereof and shall not count as gross admission revenue. Such 75 promotional tickets for each Event shall not be subject to the Ticket Surcharge. C. This Agreement shall be construed and enforced according to the laws of the State of Florida. D. Title and paragraph headings are for convenient reference and are not a part of this Agreement. E. No waiver or breach of any provision of this Agreement shall constitute a waiver of any -subsequent -breach -of -the same or any other provision hereof, and no waiver shall be effective unless made in writing. F. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under Federal, State, and/or Local laws, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. 29. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 30. ENTIRE AGREEMENT: This instrument, together with its attachments and all other instruments incorporated herein by reference constitute the sole and only agreement of the parties hereto relating to the use of the Facilities. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. Filbon Agreement July 29 2007 cln 12 31. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. THIS AGREEMENT SHALL BE RETURNED TO THE CITY, PROPERLY EXECUTED BY USER, JUNE 12, 2007 AT 12:00 P.M. FAILURE TO COMPLY WITH THIS PROVISION MAY RESULT IN THE CANCELLATION OF THIS AGREEMENT BY THE CITY AND FORFEITURE OF ANY DEPOSIT, ADVANCE OR PAYMENT MADE BY USER TO RESERVE THE USE PERIOD. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials therdunto duly authorized, this the day and year above ' written. ATTEST: "CITY" CITY OF MIAMI, a municipal corporation By: Priscilla Thompson, City Clerk Pedro Hernandez, City Manager Print Name: Title: "USER" Filbon S.A. By: Print Name: Title: Approved as to Form and Approved as to Insurance Correctness Requirements Jorge L. Fernandez LeAnn Brehm, City Attorney Risk Management Administrator Filbon Agrcement July 28 2007 cln 13 Filbon Agreement July 28 2007 ctn 14