HomeMy WebLinkAboutExhibit 1BICENTENNIAL PARK
USE AGREEMENT
THIS AGREEMENT hereinafter referred to as the "AGREEMENT," • made this_ day
of , 2012, by and between the Bayfront Park Management Trust, a limited agency and
instrumentality of the City of Miami, hereinafter referred to as the "TRUST," and V 0 R Miami, Inc., a Florida Non -
Profit Corporation with offices located at 280] SW 3 ] Avenue, Suite 2B, Miami, Florida 33133, hereinafter referred
to as the "USER."
RECITALS
WHEREAS, the TRUST is responsible for the operation and management of the park owned by the City
of Miami, located at 1075 Biscayne Blvd., Miami, Florida 33132, and known as Bicentennial Park (the "PARK");
and
WHEREAS, USER wishes to use the PARK for the purpose of conducting an ocean race, as the term is
defined in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the TRUST
hereby grants unto USER the privilege of entry upon PARK, for the purpose of hosting the EVENT, on the tei
and conditions set forth in this Agreement.
1. RECITALS:
The Recitals are true and correct and are hereby incorporated into and made a part of this Agreement.
EVENT AND USE PERIOD:
The EVENT is the VOLVO Ocean Race 2011-2012, to take place at the PARK, from April 29, 2012,
through May 25, 2012, including set-up and tear -down, hereinafter referred to as the "USE PERIOD."
The EVENT will also consist of concert/entertainment performances which hereinafter will be referred to
as the ENTERTAINMENT PROGRAM(S). Further reference made to the EVENT includes the
ENTERTAINMENT PROGRAM(S).
Unless otherwise specifically provided hereunder, USER shall be completely responsible for the
production, coordination and management of the EVENT, at its sole cost and expense.
3. PREMISES:
As used in this Agreement, "PREMISES" means the portions of PARK including use of the Florida East
Coast Railway Slip (FEC Slip); see Exhibit A.
a. Restroom Facilities:
USER hereby agrees to provide adequate portable restroom facilities, which shall be open and
operational during the USE PERIOD.
C.
Control of Access:
USER hereby agrees that the staff and management of the TRUST, in consultation with the USER,
have complete control as to when gates to EVENT are opened. USER hereby agrees to respond to
any reasonable TRUST request during the USE PERIOD of the EVENT.
Sound Checks:
USER hereby.agrees that there will be no sound checks before 5:00 pm on any weekday (Monday
through Friday).
Sound Level:
-USER understands that the TRUST'S sound policy establishes a maximum level of 110 decibels
--measured sixty (60) feet away from each stage. Failure to cure each incident of sound level non-
compliance within five (5) minutes of notification by TRUST designee will result in a fine of
$1,000 per incident.
e. Time of Event:
USER herebyagrees the EVENT and ENTERTAINMENT PROGRAM(S) must end by midnight
on Fridays, Saturdays and Sundays, and at 11:00 pm Mondays through Thursdays. USER shall
pay a time overage fee of $1,000.00 for every fifteen (15) minutes, or a fraction thereof, if the
EVENT or ENTERTAINMENT PROGRAM continues beyond midnight. This is in addition to
all other fees and costs for which USER is responsible under this Agreement.
f. Alcohol Wrist Band Policv:
USER hereby agrees that if alcoholic beverages are vended at the EVENT, USER will use alcohol
wrist -banding staff to ensure consumers of alcohol are of the appropriate age.
g.
Dispensing of Alcoholic and Non-alcoholic Beverages:
USER hereby - agrees to dispense all beverage products in plastic or paper cups only. No
beverages are to be dispensed in bottles or cans.
USER hereby agrees to dispense a limit of two (2) alcoholic beverages per person at time of
purchase.
USER hereby agrees that sales of alcoholic beverages will stop sixty (60) minutes prior to the end
of the EVENT/PROGRAM.
h. Sponsor's Signage:
USER hereby agrees that under no circumstances can any TRUST sponsor's signage be covered
during the USE PERIOD.
4. CONDITION OF PREMISES:
USER has inspected, or has been given the opportunity to inspect, the PREMISES, prior to execution of
this Agreement, and accepts it in its present condition and agrees to maintain and return the same in the
same condition.
5. COMPLIANCE WITH PERMITS AND LAWS:
1. USER represents and warrants that during the term of this AGREEEMNT, in connection with the
EVENT, it will obtain and- maintain all required peumits and approvals. TRUST will assist USER in
obtaining assembly permit from the Office of Fire Prevention of the City of Miami. Fire Department
manpower requirements shall be determined by the Fire Department at least TEN (10) business days prior
to the EVENT.
2. USER represents and warrants that during the term of this AGREEMENT, it will not use or
employ the PREMISES, or any other City owned property, to handle, transport, store or dispose of any
hazardous materials and that it will not conduct any activity on PREMISES or City owned property in
violation of any applicable environmental laws.
3. USER represents and covenants that it will comply with all applicable laws, codes and ordinances,
including, but _not_ limited to, the Americans with Disabilities Act ("ADA"), all laws prohibiting
discrimination and environmental laws.
- 4. USER represents and warrants that it is aware of the restrictions contained in Sections 22-180
through 22-185 of the Code of the City of Miami entitled "Handbills" and that it will comply with all of the
requirements therein=with.respect to the distribution of commercial handbills. Should USER fail to comply.
it shall be responsible -for the payment of any fines imposed, including fines imposed upon the TRUST.
Payment for fines imposed must be made within ten (10) days of receipt thereof.
5: USER accepts this Agreement and hereby acknowledges that USER'S strict compliance with all
applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and
USER, and any of its employees, agents or performers, shall comply therewith as the same presently exist
and as they may be amended hereafter. This Agreement shall be construed and enforced according to the
laws of the State of Florida.
Further, the USER, ,and any of its .employees, agents or performers, hereby agrees to comply with all
regulations regarding travel to and from the United States as promulgated by the U.S. Department ,of
Treasury, Office of Foreign Assets Control ("OFAC") and the U.S. Department of State.
Violation of any federal, state and local law shall subject the USER to immediate cancellation of this
Agreement.
6. COMPENSATION:
In consideration of the use of the PREMISES, USER shall pay to the TRUST a Use Fee, which is the sum
total of the Basic Use Fee and the Additional Charges. The Basic Use Fee for the use of the PREMISES
shall be S74,000.00 for park rental.
• Load -in: April 29 —May 5, 2012: $30,000
• Event days: May 6 — May 20, 2012, $34,000
• Load -out: May 21 — 26, 2011, $10,000
Additional Charges consist of all other amounts due by USER hereunder, including, but not limited to, the
following estimated fees: S64,834 for cleaning services and solid waste disposal, $88,000 for police
staffing, $54,000 for fire rescue & inspector.
The following Additional Charges are per on an as needed basis: $75 for each 10'Xl0' tent rental, $125 for
each 10'X20' tent rental, $175 for each 20'X20' tent rental, $275 for each 20'X30' tent rental, $450 for each
20'X40' tent rental, S6 for each regular table rental, and $7.50 for each round table rental, $1 for each chair
rental, $5 for each light rental, $75 location fee for each soda and/or food location, S25 location fee for
each arts/merchandise/sponsor location, $25 location fee for each sampling booth, $25 location fee for each
sponsor booth, $400 for each beer/alcohol location, and $500 for water meter rental.
Except as otherwise specifically provided herein, USER shall be responsible for all costs involved in the
presentation of the EVENT, including without limitation: all BMI and ASCAP license fees, all staffing and
all charges for police, fire rescue & inspector and/or assembly permit, security, insurance all utilities,
supplies, equipment rental, ticket surcharge, all applicable taxes, including State of Florida Sales Tax and
other services, except those which are furnished by the TRUST and are included in the USE FEE.
7. TERMS OF PAYMENT:
USER shall submit to the TRUST, in the form of cashier's check, money order or cash, no later than Six (6)
days prior to the commencement of the USE PERIOD (by 5:00 pm, Monday, April 23, 2012), the Use Fee
and the Damage Deposit as set forth ion Paragraph 8 below. In the event the final Use Fee, after settlement
of the Additional Charges, exceeds the amount estimated in Paragraph 6 above, then the TRUST shall
deduct such excess amount from the Damage Deposit. The Damage Deposit, reduced by such excess
amount, if any, shall be promptly refunded to the USER in accordance with Paragraph 8 below. In the
event the final Use Fee, after settlement of the Additional Charges, is less than the estimated Use fee
previously paid, the difference shall be refunded promptly to the USER, subject to Paragraph 8 below.
8. DAMAGE DEPOSIT:
The Damage Deposit shall be in the amount of $10,000. The Damage Deposit is' intended to secure
performance of all of USER'S obligations. A mutual inspection of the PREMISES will be made within
_ two (2) business days after the completion of EVENT, and the amount of the Damage Deposit shall be
_;,. - -applied_towardathe:payment of_necessaLy...repairs,�f_any.. The_Damage Deposit shall also be applied toward
'payment-ofany fees -or costs assessed against the PARK, the City of Miami or the TRUST for activities and
::operations .of USER -hereunder, or arising from the EVENT. In the event the amount necessary to repair
the-damages=or satisfy,USER'S.obligations hereunder exceeds -the Damage.Deposit, then. the USER agrees
to pay the balance to the TRUST, within ten (10) business days of the TRUST'S request.
9. BANNER PLACEMENT:
The TRUST reserves the right to restrict placement of banners in Bicentennial Park.
10. TICKET:
a. Ticket -Surcharge:
USER agrees to pay to the TRUST all applicable ticket surcharges as stated in section 53-I(b) of
the Code of the City of Miami and ordinance 10509 of the City of Miami, as amended. As of
August 1, 2005, the applicable ticket surcharge is as follows:
• 75 cents on all tickets between $1.00 to $14.99;
• $1.00 on all tickets between $15.00 to S29.99; and
• $2.00 on all tickets S30.00 and over.
The ticket surcharge, or an amount equal to the ticket surcharge, shall also ,apply to all
complimentary tickets except as provided hereunder. The amount of the ticket surcharge shall be
paid no later than the end of each ENTERTAINMENT PROGRAM, when the box office is
settled.
b. COMPLIMENTARY TICKETS:
USER shall have right to distribute up to 575 tickets (including 75 tickets to be provided to the
TRUST) for promotional use without payment of a ticket surcharge for each ENTERTAINMENT
PROGRAM. USER agrees to provide TRUST with complimentary tickets no later than three (3)
working days prior to PROGRAM.
c. TICKET POLICY:
USER agrees that all ticketed events in PARK will be audited by the TRUSTS Box Office
Auditor and/or Manager. There will be no exceptions.
USER agrees to submit a valid ticket manifest prior to the opening of the gates. There will be no
exceptions. The TRUST'S Box Office Manager and/or Auditor will report compliance or lack of
compliance to the executive staff prior to the gates being opened on the day of an
ENTERTAINMENT PROGRAM.
Failure to provide a valid ticket manifest may result in a non-compliance fee as outlined below. The
fee will be assessed on all tickets counted by the TRUST, including complimentary tickets.
1,000 to 9,999 tickets - S1,000.00 non-compliance fee
10,000 to 19,999 tickets - $2,000.00 non-compliance fee
20,000 + tickets - $3,000.00 non-compliance fee
USER agrees that all tickets must be torn in half at turnstiles and half of each ticketmust be
returned to the patron entering the show. There will be no exceptions. The Trust reserves the
right to access and count al] "drop" ticket stubs.
d. USER agrees to pay all applicable taxes and service charges related to tickets.
e. USER agrees that the Trust will provide at USER'S cost all personnel required for ticket taking,
gate control and ticket counting.
11. ADVERTISING:
When advertising for the EVENT the physical address _shown for the Park • shall be 1075 Biscayne
Boulevard, Miami, Florida 33132.
12. FOOD & ARTS & CRAFTS LOCATIONS:
uThe :TRUST-and:the -Fire.Marshal.of the City of Miami reserve the right to designate all food and craft
booths -for the .EVENT .and/or .ENTERTAINMENT PROGRAM, with proper and advance notification to
the USER.
13. SECURITY:
TRUST shall provide at USER'S cost, all necessary perimeter/t-shirt event security and police officers to
be determined:by the.City•of.Miami.Police Department and the TRUST. In addition, TRUST may require
extra fencing or security if it deems it necessary.
14. CATERING:
USER, at its own cost, shall provide catering, food and beverages and the cleanup of the designated food
area during the EVENT.
The TRUST retains the right to hire, at USER'S cost and expense, a Concession Coordinator, whose
responsibility will be to oversee and approve the coordination of all concession operators, and to report to
the TRUST and require immediate correction of any acts that do not conform to this Agreement, including,
but not limited to, the adherence of all State, County, Municipal and TRUST health codes, rules and
regulations during the ENTERTAINMENT PROGRAM(S).
. 15. INSURANCE:
USER shall obtain and maintain in force for the USE PERIOD, General Liability Insurance on a
Comprehensive General Liability Form or an equivalent policy form in the amount of coverage deemed
acceptable by the City of Miami Risk Management Administrator for bodily injury and property damage
liability, see Exhibit B.
The City of Miami, the Bayfront Park Management Trust, the Museum of Science, Inc., and the Miami Art
Museum of Dade County Association, Inc., the latter two entities hereinafter referred to as the
"MUSEUMS", shall be named "Additional Insured" on all policies. Any questions regarding Insurance
should be directed to the Insurance Administrator, Risk Management Division, 444 SW 2nd Avenue, 9th
Floor, Miami, Florida 33130, (305) 416-1604. USER shall furnish all insurance certificates required by the
City of Miami Insurance Administrator, no later than thirty (30) days prior to the commencement of the
USE PERIOD.
16. INDEMNIFICATION:
USER agrees to indemnify, defend, covenant not to sue and hold harmless forever the CITY, TRUST and
all the CITY'S, TRUSTS and MUSEUMS' members, officials, officers, agents and employees (collectively
referred to as the, "Indemnitees"), from and against all losses, costs, penalties, fines, damages, claims,
expenses (including attorney's fee and costs), and liabilities (collectively referred to as "Liabilities")
arising out of, resulting from, or in connection with (i) the EVENT and/or the use of the PREMISES, (ii)
the performance or non-performance of this Agreement, whether it 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 the Indemnitees, or any of them , or (iii) the failure of the USER to comply with any of the
provisions contained herein, or to conform to statutes, ordinances, or other regulations or requirements of
any governmental authority, federal or state, in connection with the performance of this Agreement. USER
expressly agrees to indemnify, covenant not to sue and hold hainiless the Inderrmitees, 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 Workers' Compensation or similar laws. This
indemnity provision shall survive the termination of this Agreement and shall continue in effect until the
expiration of the corresponding statute of limitations or the tolling thereof
17. RISK OF LOSS:
The CITY, TRUST and MUSEUMS assume no responsibility whatsoever for any person or property that
enters the PREMISES as a result of, or in connection with, the EVENT. In consideration of the execution
of this AGREEMENT by the. TRUST, the USER releases the CITY, TRUST and MUSEUMS from any
r.,and.all liability: for any loss,. injury, death, theft, damage or destruction to any persons or property which
may occur in:or-about the PREMISES regardless of the cause, including such circumstances where it could
be alleged that:.the -.CI.TY, :TRUST or the MUSEUMS, or their employees, agents or contractors were
negligent. USER does not agree .to release the CITY, TRUST or the MUSEUMS for any and all liability
which is determined to be caused solely due to the intentional or willful misconduct of the CITY, TRUST
and MUSEUMS or their respective employees or agents.
18. FORFEIT OF CANCELLATION:
All advance sums, or advance payments under this Agreement, shall be forfeited if, through the fault or
action of the USER, the EVENT is not held within the dates and times contracted.
19. DEFAULT PROVISION:
In the event the USER shall fail to comply with each and every term and condition of this AGREEMENT
or shall fail to perform any of the terms and conditions contained herein, then the TRUST, at its sole option
and in addition to all other rights and remedies available to it by law, upon written notice to USER may
cancel and terminate this AGREEMENT, and all payments, advances, or other compensation paid by
USER pursuant to this Agreement, shall be forthwith retained by the TRUST.
20. AWARD OF AGREEMENT:
USER represents and wan -ants to the TRUST that it has not employed or retained any person or company
employedby the TRUST to solicit or secure this Agreement and that it has not offered to pay, paid, or
agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent
upon or in connection with, the award of this Agreement.
21. PUBLIC RECORDS:
USER understands that the public shallhave access, at all reasonable times, to all documents and
information pertaining to TRUST contracts, subject to the provisions of Chapter 119, Florida Statutes, and
agrees to allow access by the TRUST 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 TRUST.
22. NONDISCRIMINATION:
USER shall not discriminate against any persons on account of race, color, sex, religion, creed, ancestry,
national origin, age, handicap, or marital status in the use of the PREMISES.
23. AUTHORIZED PERSONNEL:
The TRUST shall have authorized representatives with decision- making authority reasonably available at
all reasonable times throughout the USE PERIOD for consultation with USER.
24. . AUTHORITY TO EXECUTE AGREEMENT:
Each party represents to the other that it has the power to enter into the AGREEMENT and that the consent
of no other person or entity is required in connection therewith, except as otherwise provided, and that this
AGREEMENT constitutes a valid and binding obligation of each party in accordance with the terms herein.
25. RELATIONSHIP OF PARTIES:
This AGREEMENT shall not be deemed or construed to create any agency relationship, partnership, or
joint venture between the CITY, the TRUST and USER.
26. NOTICES:
Notices required under this AGREEMENT shall be deemed to be given when hand -delivered (with receipt
therefore) or mailed by registered or certified.mail, postage prepaid, return receipt requested.
AS TO USER:
Donald K. Poole
President/Registered Agent
.V 0 R Miami, Inc.
:.280.1 SW 31 Street, Suite 2B
Miami, Florida 33133
AS TO THE CITY:
Johnny Martinez
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
AS TO THE TRUST:
Timothy F. Schmand
Executive Director
301 N. Biscayne Blvd.
Miami, Florida 33132
WITH A COPY TO:
Julie O. Bru
City Attorney
444 SW 2nd Ave. Suite 945
Miami, Florida 33130
27 NONDELEGABILITY
This AGREEMENT may not be transferred or assigned by USER without the prior express written consent
of the TRUST.
28
GOVERNING LAW:
This AGREEMENT shall be construed according to the laws of the State of Florida and venue shall be in
Miami -Dade County.
29. CONFLICT OF INTEREST:
USER is aware of the conflict of interest laws of the City of Miami (Code of the City of Miami, Florida,
Chapter 2, Article V), of Miami -Dade County, Florida (Code of Miami -Dade County, Florida (Code of
Miami -Dade County, Florida, Section 2-11.1) and of the State of Florida (as set forth in Florida Statutes)
and agrees it will fully comply in al] respects with the terms of said laws and any future amendments.
30. FORCE MAEJEURE
The TRUST and the CITY shall not be liable for any failure to perform their 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 TRUST and the CITY and its citizens, hostilities (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 utility services such as
electricity or telephone.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have individually and through their proper corporate official
executed this AGREEMENT, this•the dayand year first written.
WITNESSES:
ATTEST: BAYFRONT PARK MANAGEMENT TRUST
a limited agency and instrumentality
of the City of Miami
BY: BY:
Jose Gell Timothy F. Schmand
Administrative Officer Executive Director
ATTEST: USER: V 0 R Miami, Inc.
BY: BY:
Witness, Sign above & print name below Donald K. Poole
President of the Board of Directors
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
BY: BY:
Calvin Ellis, Director
Risk Management
Julie O. Bru
City Attorney
EXHIBIT A
- 1 REMISESISITE MAP
P-At.-,-.7!::i?i'
e Vh7,7MMN.,11...-,,,,,'• ,-.
44
Ago XI , .,.:.•"'
....
JUNE 1, 2010 • PREPARED BY VORM 2012 FOR THE OF THE CITY OF MIAMI
Proposed Site for
Volvo Ocean Race Village
Proposed Area
for Dockage and
Access.
iegtr.,1;11'°'
EXHIBIT B
BAYFRONT PARK INSURANCE REQUIREMENTS:
USER shall obtain and maintain in force for the USE PERIOD:
a) Workers' Compensation insurance for al] of Provider's employees as required by
Section 440, Florida Statutes;
b) Commercial General Liability: 1,000,000/2,000,000;
c) Business Automobile Liability: 1,000,000;
d) Such insurance shall provide that it will not be canceled or modified without at least
thirty (30) days prior written notice to the Trust;
e) All applicable policies shall name the City of Miami, the Bayfront Park Management
Trust, the Museum of Science, Inc., and the Miami Art Museum of Dade County
Association, Inc.
as additional insured;
f) Bayfront Park Management Trust, 301 N. Biscayne Blvd is to be named the "Certificate
Holder;"
Bayfront Park address:
301 N. Biscayne Blvd.
Miami, Florida 33132
City of Miami address:
Risk Management Dept
444 SW 4 Avenue, 9th Floor
Miami, Florida 33130
Miami Art Museum of Dade County Association, Inc.
101 West Flagler Street
Miami, Florida 33130
Museum of Science, Inc.
3280 S. Miami Avenue
Miami, Florida 33129
CORPORATE RESOLUTION
Whereas, V 0 R Mianu, Inc., desires to enter into an Agreement with the Bayfront Park
Management Trust substantially in the form of the agreement to which this Resolution is attached; and,
Whereas, the Board of Directors, at a duly held meeting has considered the matter in accordance
with the By -Laws of the Corporation.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that this
corporation is authorized to enter into the Agreement with the Bayfront Park Management Trust and the
President of the Board of Directors, Donald K. Poole, is hereby authorized and directed to execute the
Agreement in the name of this Corporation and to execute any other documents and perform any acts in
connection therewith as may be required to accomplish its purpose.
BY:
IN WITNESS WHEREOF, this day of • 2012.
BY:
Donald K. Poole, President of the Board of Directors
Richard Bischoff, Secretary of the Board of Directors
Affix Corporate Seal