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HomeMy WebLinkAboutExhibit 1BOAT SHOW USE AGREEMENT MIAMARINA AT BAYSIDE This •Agreement is entered into this . . day of , 201_ by and between the City of Miami,. a municipal corporation of the :State of Florida ("City") and NMMA Boat Shows, Inc., a Delaware not -for profit corporation ("User"). RECITALS In consideration of the mutual covenants and promises herein contained, the City hereby grants to. User the right, privilege and permission to use the dockage space. at Pier B, C and D excluding two (2) slips currently occupied at the municipal facility of the City known as Miamarina at Bayside.(the "Facility"), on a transient basis, for the Permitted Use and during the Use Period, as the terms are hereinafter defined, subject the•terms and conditions set forth in this Agreement. 1. TERM: The term of thus Agreement shall commence upon full execution hereof and shall terminate upon fulfillment of all the responsibilities and obligations of the parties hereunder. 2. PERMITTED USE: User than be permitted to use the Facilities for the purpose of presenting a.Boat Show (the "Event") during the Use Period and for no other purpose. 3. USE PERIOD: The Use Period which includes set-up and dismantle, shall commence at 7:00 a.m. on the ninth (9t) day of February, 2013 and shall end at 5:00 p.m. on the twentieth (20th) day of Febr uary,.:2013. 4. USE FEE: The Use .Fee shall be. the sum total of the Dockage Charges and the Additional Charges. The Dockage Charges shall be computed at the rate of $1.57 per linear foot per vessel per day and is estimated to be $5;911.05 per day, for a total of $70,932.60 (based on 3,765 linear feet times twelve days). The Dockage Charges includes light for ordinary use, water for reasonable use related purposes at the Facility, janitorial and restroon supplies, and nothing else. The Additional Charges consist of any amounts due for additional services, accommodations, supplies, materials or equipment fiunished to the User and all otheramounts due in connection with the Permitted'Use. Additionally, User shall pay all applicable taxes including; withoutlirnitation, State.of Florida sales, use and rental taxes. 5. PAYMENT OF USE FEE: User agrees to pay to the City the Use Fee as follows: A. Reservation Deposit: Upon execution of this Agreement, User shall pay to r4v the City the sum of $35,466.30, plus $2,482:64 sales tax (or 7.0% of charges, whichever is greater), for a total of not less than $37,948.94 as. Reservation Deposit. The Reservation Deposit shall be non-refundable, except where the Event is canceled as a result of Force Majeure under Section 15 below. The Reservation Deposit shall be applied toward the payment of the Use Fee. B. Dockage Charges and taxes: The balance of the Dockage Fee, in the estimated sum of $35,466.30., together with the State of Florida rental taxes, estimated at $2,482.64 (or 7.0% of charges), for a total of $37,948.94, shall be paid on or before February 10th, 2013. C. Additional Charges: -Payment of Additional Charges shall be made promptly upon demand. 6. OTHER PAYMENTS: User acknowledges that that the City is relocating its permanent dockage customers during the Use Period in order to allow the User exclusive use of the Facility during that time. Therefore, in addition to the foregoing, User agrees to pay the City a sum equal to one (1) week dockage .fees for all relocated customers of record as of January 10, 2013. This amount is currentlyestimated to be $7,000 but the exact amount will be determined on or .about January 10, 2013. User will promptly pay such amount once it is billed by the City and failure to promptly pay it will be a breach of this Agreement. 7. EVENT PERSONNEL, UTILITIES AND SUPPLIES: Except as otherwise specifically provided, User shall be responsible for the staffing of the Event and shall pay for all utilities, supplies or other services, except those which are furnished by the City and are included in the Dockage Charges, .as specifically provided under Section 4.above. User shall consult with the City to ensure that the Event shall be properly staffed and that :staffing levels and security staffing are adequate to handle attending crowds. 8. CONDITION OF FACILITY: A. This Agreement is only for the use of dockage space on a transient basis and the City disclaims all warranty, and makes no. representation of any kind, as to the condition of the piers, walks, gangways, ramps or any other portion of the Facility, except that the piers and docks are in "good condition". Prior to the execution of this Agreement, User has inspected the Facility and accepts it in "as -is" condition. B. User agrees to surrender.the Facility to the City properly cleaned and in the same condition existing upon User's acceptance. If the Facility is not properly cleaned to the City's 2 ta, v satisfaction, then the City shall have the right to invoice the. User for such additional cleaning. The cost of additional cleaning, as well as the cost of damage repairs, or any repairs necessitated as a result of the use of the Facility by User, shall be paid by User upon demand. C. The City shall have the right to remove from the Facility, at User's cost and expense, any effects remaining therein 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, 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 paid by User upon demand. D. The. City shall have the right to enter upon the Facility at anytime during the Use Period as it deems necessary. 9. RISK OF LOSS: User understands and agrees that the City shall not be liable for the care, protection, security, loss or damage relating to any vessel, her appurtenances or contents, nor for any loss, injury or damage to any property or equipinent brought into the Facility by User or by any other person in connection with the use of the Facility by User. All personal property placed or moved in the Facility shall be at the risk of User or the owner thereof. User further agrees that it shall be responsible to provide all security and any similar guard services during the Use Period, whether or not the Facility is open to the general public. 10. COMPLIANCE WITH APPLICABLE LAWS User agrees to obtain all required licenses and permits and to abide by and comply with all applicable laws, rules, regulations, codes, and ordinances in the use of the State of Florida, Miami -Dade County, City of Miami including this Facility and presentation of the Event. 11. RULES AND REGULATIONS FOR THE FACILITY: By execution of this Agreement, User acknowledges that it has received and fully understands the "Marinas Facilities Rules and Regulations" 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 permit the violation of any rule and regulation set out therein. 12. INDEMNIFICATION: User agrees to indemnify and save harmless the City, including all the City's volunteers, agents, officers and employees, from and against any and all claims, liabilities, losses and causes of action, which may arise out of User's activities under this Agreement, or the presentation of the Event, whether caused by any action or omission of User or the City or any of their respective employees or agents, or by any person whatsoever acting for or 3 !3 � on their behalf. User fiaither indemnifies the City as to all liabilities, costs and ,expenses, including legal (e. g. attorney) fees and costs, at all levels, incurred in the defense, litigation including appellateproceedings and/or investigation of any such claims. 13. .INSURANCE: A. Without liinitation of the requirements set forth in this Article, Provider shall maintain insurance with coverage and minimal limits of liability as follows: (1.) Workers' Compensation and Employer's Liability - providing statutory coverage under the Workers' ;Compensation.and Occupational Disease Laws of the state where operations are being performed under this Contract; and Employer's Liability coverage with limits of $1,000,000 each accident, $1,000,000 disease each employee and $1,000,000 disease policy limit. Waiver of Subrogation must be included with this coverage in favor of the City of Miami. (2) Commercial General Liability - :provided on a primary and non contributory basis and affording coverage for Bodily Injury, including death and property damage with limits of at least $1,000,000 per occuurence, $2,000,000 aggregate. The certificate must include coverage for premises and operations liability, Products and Completed Operations; Contractual aiid Contingent Liability, and Personal Injury and Advertisement Liability. In addition, the certificate must reflect coverage Fire to Rented Premises with limits of at least $100,000. The City must be included as an additional insured on this coverage pursuant to endorsement CG 2010 (1.1 /85) or its equivalent version. (3) Automobile Insurance - Providing coverage for all owned, hired and non - owned autos with .a combined single limit of $1,000,000. The certificate must include coverage for employees as insured's and name the City of Miami as an additional insured. (4) Umbrella Liability - Providing excess follow form coverage with limits of at least $1,000,000 per occurrence, $2,000,000 aggregate with increased liniits over commercial general liability, auto and employer's liability. City of Miami must appear listed as an additional insured on this coverage. B. In no event shall the provisions of this .Article be construed in any way to limit Provider's obligations under any provision of this Agreement, including, but not limited to, Provider's obligations to indemnify, defend and hold harmless the City. C. The insurance coverage required herein shall be through policies issued by 4 /4 ✓ companies authorized to do business under the -laws of the state where the work is performed with these qualifications. D. The Company must be rated by the latest edition of Best's Insurance Guide, published by -Alfred M. Best Company, Inc. [or other recognized organization] at.no less than an. "A" BestPolicyholders rating and no less than an "V" rating in Best's Financial Size Category. E. All of such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage shall be furnished to the City on Certificates of Insurance indicating such,. insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this contract withoutthirty (30) calendar days'piior written notice to the City. Completed Certificates of Insurance shall be filed with the City prior to the performance of services hereunder, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance -with the City. 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 as additional insured. User shall provide to the City certificates evidencing the required insurance coverage at least seven (7) 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. 14. DEFAULT/MARITIME LIENS: A. If User fails to comply with any tern or condition of this .Agreement or fails to perform any of its obligations hereunder, then User shall be in default. Upon the occurrence of a default hereunder, the City may in addition to all remedies available to it by law and under this Agreement, immediately, upon written notice to User, terminate this Agreement whereupon all deposits, payments, advances or other compensation paid by the User to the City shall be retained by the City. B. The User acknowledges that the City has the right to establish and enforce a maritime lien for dockage, repairs, supplies, towing or other necessaries and agrees that the City retains the right to pursue such maritime liens and such other legal and equitable remedies as may be necessary to enforce the terms and conditions of this Agreement. 15. FORCE MAJEURE: The City and the User shall each 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, 5 �3 ✓ windstorm, catastrophe or other act of God. In such event, User shall be entitled to a refund of the Reservation Deposit or so much thereof as has not been applied, upon termination of the Agreement, after satisfaction of all amounts due by User hereunder, if any. 16. 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. 17. ASSIGNMENT: This Agreement shall not be assigned, sold, transferred or conveyed 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. 18. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party'atthe 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 of "actual receipt, whichever is. earlier. TO USER: NMMA Attn: Cathy Rick Joule. 9050 Pines. Blvd. Suite 305 Pembroke Pines, FL 33024 Also To: Stephen Evans NMMA 231 S. LaSalle St., Suite 2050 Chicago, IL 60604 TO THE CITY: Dinner Key Marina City of Miami 3400 Pan American Dr. 3500 Pan American Dr. Miami, FL 33133 Miami, FL 3133 Attn: Stephen H. Bogner Attn: Johnny Martinez Marinas Manager City Manager Also To: Julie O. Bra, Office of the City Attorney 444 SW 211a Avenue, Suite 945 Miami, FL 33130 19. MISCELLANEOUS PROVISIONS: A. User shall identify the City and the Facility in all promotional material and press. releases prepared or issued in connection with the Event. The City shall be identified as "The 6 /3 ✓ City of Miami, Florida" or "Miami" and the Facility shall be identified as "Miamarina at Bayside." B. User shall provide to the Director fifty (50) promotional tickets for the Event for the purpose of promoting the Facility. 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 orbreach 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 the laws of the State of Florida or the City of Miami, 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 or limitation of its use. G. This Agreement constitutes the sole and entire agreement between the parties. hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto.. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon ,the parties hereto, their heirs, executors, legal representatives, successors or assigns. 21. 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. THIS AGREEMENT SHALL BE RETURNED TO THE CITY, PROPERLY EXECUTED BY USER, BY FEBRUARY 10th, 2013, AT 5:00 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. 7 /3 y IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. "CITY" ATTEST: A2w��1��xanie. ., City Clerk Print Name: C f b 4. 8o4tlrry Title: Corporate Secretary APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru City Attorney CITY OF MIAMI, a municipal corporation By: Johnny Martinez, P.E., City Manager "USER" NMMA Boat Shows, Inc., a Delaware corporation By: Print ie: 71/04,1Mm 1c4.4 Title. President `rAnc- ; a'9xnon 7-440�-E vravg. /M ir✓- 5 ✓Icr� APPROVED AS TO INSURANCE REQUIREMENTS: Calvin Ellis, Director Risk Management 8 i2. ✓