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HomeMy WebLinkAboutExhibit 2MPROVEMENTS AND INDEMNIFICATION AGREEMENT Between Sightseeing Tours Management. Inc. and Cih' of Miami This Improvements and Indemnification Agreement ("Agreement") is made this day of , 2008 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida, located at 444 S.W. 2"d Avenue, 10th Floor, Miami, Florida 33130 ("CITY") and Sightseeing Tours Management, Inc., a Florida corporation, whose principal address is 555 NE 15th Street, Suite 102, Miami, Florida 33132 ("Licensee" or "Sightseeing Tours Management"). RECITALS WHEREAS, the City of Miami ("City") is the owner of real property located at 401 Biscayne Boulevard, Miami, Florida, commonly known as Miamarina ("Miamarina") and manages and operates Miamarina as a municipal marina open to the public; and WHEREAS, Sightseeing Tours Management owns and operates several commercial sightseeing vessels at Miamarina and is a licensee in good standing with the City; and WHEREAS, updated United States Coast Guard regulations pertaining to vessel stability and safety of sightseeing vessel passengers has necessitated the replacement of certain existing Sightseeing Tours Management commercial vessels with newer, wider vessels; and WHEREAS, Sightseeing Tours Management has requested authorization from the City to demolish the existing finger pier located at Miamarina, Pier 5 Slip 1/2 utilized by Licensee as part of it's operations and replace said finger pier with a new, wider finger pier of similar construction at no cost or expense to the City (the "Improvements"); and WHEREAS, the estimated cost of the demolition work and requested Improvements is S45,000; and WHEREAS, upon the termination of this Agreement, the Improvements shall be donated and become the property of the City of Miami; and WHEREAS, pursuant to the Code of the City of Miami, Florida, as amended, Section 18-115 Acceptance of Donation, donations in excess of S25,000 require approval of the Miami City Commission; and WHEREAS, the Improvements will also better accommodate the many passengers that utilize Sightseeing Tours Management's commercial sightseeing vessels with disabilities; NOW THEREFORE, for and in consideration of one ($1.00) dollar and other valuable consideration contained herein, the receipt and sufficiency of which are hereby acknowledged, the City and Sightseeing Tours Management agree as follows: TERMS I. RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. DEMOLITION OF EXISTING FINGER PIER AND IMPROVEMENTS. A. The City hereby authorizes Licensee to demolish the existing finger pier located at Pier 5 Slip 1/2 and replace it with a new, similar finger pier with a design approved by the City as depicted in the sketch attached hereto as "Exhibit A". B. The Licensee hereby agrees to directly contract with and be solely responsible for the payment of the work to be performed by a licensed, bonded, and insured marine contractor for the demolition of the existing finger pier and construction of the new finger pier. The marine contractor and its agents shall waive in writing any rights to a mechanic's lien under Chapter 713 Fla. Stat., or otherwise prior to the commencement of any work. C. All Improvements constructed by the Licensee under this Agreement shall immediately become the property of the City. D. The City shall sign -off, as owner, on any permit applications required for the construction of the finger pier, but shall have no other duties or obligations with respect to Licensee's obligations to obtain permits prior to the commencement of construction. The finger pier shall not be used, or otherwise occupied by Licensee until all inspections required by the South Florida Building Code, or otherwise required by law, have been passed. E. Prior to commencement of construction, Licensee shall obtain and maintain or cause to be obtained and maintained throughout construction, the types and amounts of insurance•coverage set forth in Exhibit "B," attached hereto and incorporated herein by this reference. Such Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Public Facilities, Marinas Division, prior to commencement of construction. The City reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Licensee. The Licensee shall provide any other insurance or security reasonably required by the City. 3 Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required does not constitute a waiver of the Licensee's obligation to fulfill the insurance requirements herein, Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein, 4. TERM. The term of this Agreement shall commence on the date it is filly executed by all parties being the Effective Date and shall end on the date which is one (1) year from the Effective Date, unless extended for a specific renewal term of up to one (1) additional one-year period by the mutual written agreement of the City Manager and the Li censee. 5. INDEMNITY. INSURANCE AND RELEASES: A. Sightseeing Tours Management shall indemnify, defend, covenant not to sue and hold harmless the City and its 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) or liabilities (collectively referred to as "Liabilities") by reason of any 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 perfonnance or non-performance of the services required to make the Improvements, which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Sightseeing Tours Management, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or 4 negligence (whether active or passive) of the Indemnities or (ii) the failure of Licensee to provide the Improvements or the failure of Sightseeing Tours Management to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of the Agreement. Sightseeing Tours Management expressly agrees to indemnify and hold harmless the Indemnities from and against all liabilities which may be asserted by an employee or former employee of Sightseeing Tours Management, or any of its agents or subcontractors, as provided • above, for which Sightseeing Tour Management's liability to such agent, employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. B. The indemnity provision set forth in this Paragraph 5(A) shall commence on the Effective Date, shall survive termination of this Agreement and shall continue in full force and effect until the earlier of (a) one year from the Effective Date; or (b) such time as both the City Manager and Sightseeing Tours Management shall in writing agree to terminate this indemnity provision. C. Sightseeing Tours Management hereby waives any and all claims against the City for personal injury or property `damage, sustained by Sightseeing Tours Management, its agents, employees, consultants and contractors upon the Property, or in connection with the performance of the Improvements and releases the City from any claims in connection therewith, other than those claims arising from or relating to the willful misconduct or negligence of the City, its officials, employees, agents or contractors. Similarly, Sightseeing Tours Management hereby waives any and all indemnity claims against the City for third party regulatory actions by governmental 5 agencies against' Sightseeing Tours ivlanagement in connection with the petfonnanee of the Improvements other than those claims arising from or relating to the willful misconduct or negligence of the City, its officers, employees, agents or contractors. The provisions of this Paragraph 5(C) shall be effective until the expiration of the Tenn. 6. AMENDMENTS. No amendments to this Agreement shall be binding on either party, unless in writing and signed by both parties. The City Manager shall be authorized to make non -substantive amendments on behalf of the City. 7. MISCELLANEOUS. A. This Agreement shall be construed and enforced according with all applicable laws, ordinances and codes'of U.S. Federal, State of Florida, and local governments. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of ,the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. 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. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be detennined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such 6 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 the 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 or limitation of its use. E. In the event of conflict between the terns of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. 14. NOTICES: All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from ,time to time. Such notice shall be deemed given on the day on which personally served; or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. CITY OF MIAMI City Manager 444 SW 2 Avenue, 10" floor Miami, FL 33130 Wit]i copies to: City of Miami Marinas Manager 3400 Pan American Drive Miami, Florida 33133 City Attorney, City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 SIGHTSEEING TOURS MANAGEMENT, INC. 15. INDEPENDENT CONTRACTOR. Licensee, its contractors, subcontractors, and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Workers' Compensation benefits as employees of the City. 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 17. FORCE MAJEURE. A "Force Majeure Event" shall mean an act of God, act of govenunental body or military authority, fire, explosion, power failure, flood, stone, hunicane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the perfonnance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in perfonnance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a' Force Majeure Event continues. Any party seeking delay in perfonnance due to a Force Major Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that 8 has resulted. 18. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to the funding, creation, installation, and construction of the Improvements on the Property, and correctly sets forth the rights, duties, and' obligations promises, negotiations, or representations not expressly set forth in the Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to_ be executed by the respective officials thereunto duly authorized on the first date above written. A I EST: (AFFIX SEAL) SIGHTSEEING MANAGEMENT, INC. a Florida corporation BY: TOURS Name: CHARLES SOFGE CORPORATE SECRETARY PRESIDENT CITY OF MIAMI, a municipal corporation of the State of Florida ATTEST: BY: PRISCILLA A. THOMPSON, CITY CLERK PEDRO G. HERNANDEZ, P.E. CITY MANAGER APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: LEEANN BREHM, RISK JULIE O. BRU MANAGEMENT DIRECTOR CITY A I 1 ORNEY 9