Loading...
HomeMy WebLinkAboutExhibit A SUBHISTORIC VIRGINIA KEY BEACH PARK ACCESS AGREEMENT - ,4S 5►i 1 ! f vn 0-4 frla_ O "t S. 4- dow-memit- THISS ACCESS AGREEMENT ("Agreement"), by and between the CITY OF MIAMI ("City"), the VIRGINIA KEY BEACH PARK TRUST ("Trust"), and the NATIONAL MARINE MANUFACTURER'S ASSOCIATION, INC. ("NMMA") or ("User") either of which may be used interchangeably, is effective as of the date this agreement is fully executed by all named parties ("Effective Date"), and is entered into as follows: Recitals Whereas, the City is the owner of real property along Rickenbacker Causeway and Virginia Key. Whereas, the NMMA desires to utilize certain City -owned real property in order to present to the public and operate the Miami International Boat Show ("Boat Show"). Whereas, the City and NMMA have entered into a Revocable License Agreement in order to allow NMMA to host and operate the Boat Show ("Boat Show License Agreement"), the terms of which are hereby incorporated by reference as if fully set forth herein. Whereas, the Trust manages the historic portions of the Virginia Key Beach Park and hereby approves NMMA's access onto the property specified below, subject to the conditions contained herein. Whereas, the City, the Trust, and NMMA have entered into this Agreement to allow NMMA to utilize the property specified below in furtherance of its operation of the Boat Show. Now therefore, for and in consideration of the mutual promises and covenants set forth herein, the parties hereby agree as follows: l , Grant of Access The City and the Trust grant to NMMA, its successors, employees, agents, contractors and invitees (collectively "User"), temporary access rights, subject to the conditions and limitations contained herein and solely for the purpose and term stated below, to use certain City -owned property generally located at 4020 Virginia Beach Drive, Miami, FL 33149 ("Premises"), and more specifically described in Exhibit A, attached hereto. 2. Purpose & Duration of Access User is hereby authorized to utilize the Premises, as shown in Exhibit A, for the purpose of providing shuttle services over, across, and through the premises, and parking for an estimated one thousand four hundred (1,400) vehicles, and for other ancillary uses, during the Boat Show. User will be authorized to use the Premises in the manner specified for a term that shall include the five (5) days allocated for the Boat Show, from February 11, 2016 to February 15, 2016. 3. Non -Exclusive User's right of access to the Premises is not exclusive, and User shall not materially interfere with the permitted uses or activities on the Premises unless specifically authorized to do so by the terms of this Agreement. The City, the Trust, and their respective successors, agents, assigns and grantees, shall have the right to use the Premises for all purposes as are permitted by federal, Page 1 of 14 state, and local statutes, laws, ordinances, codes, regulations and rules, or as determined by the City or the Trust, so long as such use does not interfere with User's rights hereunder. 4. Access/Use Fee User agrees to pay a fee for the User's use of the Premises ("Use Fee") to the City as specified in and subject to the terms of the Boat Show License Agreement, which is incorporated herein by reference. Notwithstanding the above, the parties acknowledge that NMMA will pay the City fifty percent (50%) of profits obtained as a result of the Boat Show per the Boat Show License Agreement between NMMA and the City. City and Trust agree to allocate the net profits received by City, after all applicable costs and expenses, including but not limited to expenses incurred for fire safety, police, EMA, and traffic control, that are specifically obtained from and pertaining to Boat Show parking on the subject Premises, as permitted by the terms of this Agreement, in the following manner: fifty/fifty (50%/50%) split whereby the Trust shall receive fifty percent, and the City shall receive an equal fifty percent. 5. Condition, Maintenance, & Restoration User accept the Premises "As Is", in its present condition and state of repair and without any representation by or on behalf of the City or Trust, and agrees that the City and the Trust shall not, under any circumstance, be liable for any latent, patent or other defects in the Premises. During its use of the Premises, User, at its sole cost, shall maintain the Premises in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. User shall be responsible for all repairs to the Premises required or caused by User's use of any part thereof. User agrees to restore the Premises to the condition it was prior to the Boat Show having taken place, including, but not limited to, providing repairs for structural, mechanical, electrical, or other damage to the Premises or any improvements or personal property thereon, excluding any damage caused by ordinary wear and tear typical in the operation of a parking facility. Such ordinary wear and tear shall be defined as the unavoidable deterioration of the area and improvements that result from the uses permitted herein, and shall not include deterioration that results from User's negligence, carelessness, accident or abuse of the premises, or from User's noncompliance with the terms of this agreement. User agrees to make all changes necessary to the Premises at User's sole cost and expense in order to comply with all City, County, State and Federal requirements for User's use or occupancy thereof. Additionally, User agrees to maintain the Premises at its own cost and expense in accordance and in compliance with the terms and conditions specified in Exhibit B, attached hereto and made a part hereof. 6. Costs, Expenses & Fees Notwithstanding any other term or provision herein it is expressly understood and agreed by User that neither the City nor the Trust is responsible, liable, or otherwise answerable to pay any fee, charge, cost, expense, reimbursement or other monetary compensation to User, its agents, representatives, employees or contractors for their work or their services under this Agreement. User shall pay any and all impositions, levies, charges, fees, or assessments imposed upon the Premises as a result of User's use of the Premises. In the event User appeals a fee, User shall immediately notify City and Trust of its intention to appeal said fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City Page 2of14 in an amount sufficient to pay one hundred percent of the contested fee together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 7, Violations, Liens & Security Interest. User, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off, in the manner permitted by law, all notices of violations arising from, or otherwise in connected with, User's use, occupancy, or operations in or on the Premises which shall be issued by any public authority having or asserting jurisdiction. User shall promptly pay its contractors, subcontractors, and material -men for all work and labor done at User's request. Should any lien, claim, or encumbrance be asserted or filed, User shall bond against or discharge the same regardless of validity, within ten (10) calendar days of User's receipt of notice of the filing of said lien, claim, or encumbrance. In the event User fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim. and User shall pay the City upon demand any amounts paid out by City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. User further agrees to hold the City and Trust harmless from and to indemnify the City and Trust against any and all claims, demands and expenses of any contractor, subcontractor, material person, laborer or any other third person with whom User has contracted or otherwise is found liable, in respect to the Premises. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or Agreement on the part of City or Trust to subject the City's or Trust's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material person or supplier against any part of the Premises or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other Agreements involving the Premises shall provide for the waiver of any lien rights in the Premises and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub Agreement. 8. Advertising User shall not permit any signs, decoration, or advertising matter to be placed either in the interior or upon the exterior of the Premises without having first obtained the approval of the Director of Real Estate and Asset Management ("Director") or his/her designee and of the Executive Director of the Trust, which approval may be withheld for any or no reason, at their sole discretion. If approved, all such approved advertisements and signs must comply with County and City Sign Regulations. User must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. User shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Upon the cancellation of this Agreement, User shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Premises. If any part of the Premises is in any way damaged by the removal of such items, said damage shall be repaired by User at its sole cost and expense. Should User fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from the City and/or Trust directing the required repairs, the City and/or Trust shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay the City and/or Trust the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Page 3 of 14 9. Representations and Warranties of User a. Financially solvent. User warrants that it is financially solvent, is able to pay all debts as they mature and is possessed of sufficient working capital to complete the Use and perform all obligations under this Agreement. b. Authorization. User has taken all action necessary for the approval and execution of this agreement and has been duly authorized to commit User to all terms and conditions of this Access Agreement which shall constitute the valid and binding obligations of User. c. Compliance with laws. User hereby acknowledges that User's strict compliance with all applicable federal, state and local laws, ordinances, public agency permitting requirements and regulatory approvals, and regulations is a condition of this Agreement, and the User shall comply therewith as the same presently exist and as they may be amended hereafter. 10. Discrimination User shall not discriminate as to race, color, religion, sex, national origin, age, sexual orientation, disability or marital status in connection with its occupancy and/or use of the Premises and improvements thereon. 11. Iazardous Materials. The User shall, at its sole cost and expense, at all times, and in all respects, comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Material 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, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The User shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, Agreements and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Premises required for the User's use, or storage of, any Hazardous Materials in or about the Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the User shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Premises by the User or at the User's direction, to be removed from the Premises and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City and Trust acknowledge that it is not the intent of this Article to prohibit the User from operating in the Premises for the uses described in this Agreement. The User may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 12. Security User acknowledges that at all times during the term of this Access Agreement, it shall maintain security measures appropriate to reasonably protect the Premises, including the staffing of personnel as may be reasonably necessary to safely operate the Premises for the purposes specified in Section 2 above. Page 4of14 13. Insurance Requirements Prior to User, its agents, employees, representatives, contractors, sub -contractors, consultants or anyone else directly or indirectly employed by any of them entering upon the Premises for the purpose of performing the permitted uses as defined herein, the User shall obtain and maintain or cause to be obtained and maintained throughout the term of this Agreement, the types and amounts of insurance coverage set forth in Exhibit B, attached hereto and made a part hereof, in such reasonable amounts as approved by the City's Risk Management Director protecting the City and Trust, against all claims for personal injury, bodily injury, property damage, and regulatory actions by governmental agencies arising out of or related to the activities undertaken by the User upon the Premises and naming the City and the Trust as additional insureds. All policies and/or certificates of insurance are subject to review and verification by the City's Risk Management Department prior to insurance approval. The City's Risk Management Department reserves the right to make reasonable changes in the types and amounts of insurance coverage as necessary and shall revise Exhibit B accordingly. The User shall be responsible for assuring that the insurance certificates required under this Premises remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, User shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration(s). In the event that expired certificates are not replaced with new or renewed certificates which cover the Occupancy and Use Period: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Director; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek appropriate remedies in conjunction with the violation of the terms and conditions of this Agreement. Compliance with the foregoing insurance requirements shall not relieve User of its liabilities and obligations under this Agreement. User shall require as well its construction contractors, subcontractors, and vendors for the Project that come onto the Premises to furnish the User and the City, evidence of the following insurance coverage, unless this requirement is waived in writing by the City Manager. The User's failure to require third parties to procure insurance shall in no way release the User from its obligations and responsibilities as provided. Failure to require third parties to procure insurance required by this Section shall constitute a cause for default of this Agreement. If it can be determined that any loss or part thereof, shall be the fault of a third party (i.e. a contractor or contractors, visitors to the building or any other person, persons or organizations) except the City, then and in that event, the User may take all necessary actions to cause such third party to pay such costs and the User shall be responsible for the restoration of any and all losses incurred by the third party. In no event shall the City or Trust be liable for damage caused to the Premises or Properties by fire or other casualty. If no third party or parties are found liable, or if a third party is found liable but is unable to pay damages, then the costs of such repairs shall be ascribed to the User. 14. Assumption of Risk User acknowledges and agrees that by Use of the premises, User assumes all risk of loss or damage to property, including, without limitation, property damage, and all risk of personal injury, including but not limited to death. In no event shall the City or Trust be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by User, its officers, agents, employees, invitees or patrons occurring in or Page 5of14 about the Premises that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Premises, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Premises or any person whomsoever whether such damage or injury results from conditions arising upon the Premises or from other sources. The foregoing limitation of liability will not apply where the injury, loss, or damage is the result of gross negligence or willful misconduct on the part of the City or the Trust. 15. Indemnification & Ilold Harmless The User shall indemnify, hold harmless and defend the City, Trust, and their respective officers, employees, agents and servants from and against all claims, damages or losses, including attorney's fees, incurred to the Premises or to anyone on the Premises as a result of the actions or omissions taken by the User or in connection with User's use of the property, any of its agents, employees, contractors, sub -contractors, consultants, or any other third person performing on its behalf. User shall further, at its own cost and expense, indemnify, hold harmless and defend the City, its officers, employees, agents and servants from and against all claims, damages, causes of action or losses, including attorney's fees, which arise from and in relation to this Agreement, including, without limitation, the granting of this Agreement. User hereby voluntarily and knowingly waives any and all claims against the City and Trust for personal injury or property damage sustained by the User, its agents, employees, contractors, sub -contractors or consultants arising out of or related to the activities undertaken by the User, its agents, employees, contractors, sub -contractors, or consultants upon the Premises or in connection with the Work and releases the City and Trust for any claims in connection therewith. User acknowledges that as lawful consideration for being granted the right to utilize and occupy the Premises, User, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, the Trust, and their respective officers, agents and employees, from any and all claims for injury, death or property damage resulting from User's use of the Premises. The foregoing release will not apply where the injury, death, or property damage is the result of gross negligence or willful misconduct on the part of the City or the Trust. 16, Attorney's Fees In the event it becomes necessary for the City and/or Trust to institute legal proceedings to enforce or interpret the indemnification provisions contained herein, User shall pay the City's and/or Trust's court costs and attorney's fees through all trial and appellate levels, including the court costs and attorney's fees associated with enforcing the indemnification provisions. User acknowledges that Florida law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and irrevocable waives its right to collect attorney's fees from the City and Trust under applicable laws, including specifically, but not limited to Section 57,105, Florida Statutes. It is the express intent of the parties hereto that in no event will the City or Trust be required to pay User's attorney's fees and court costs for any action arising out of this Agreement. In the event that User's waiver under this section is found to be invalid, then User agrees that the City's and Trust's liability for User's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. Page 6of14 Except in cases specified above, where the City must bring an action to enforce the indemnification provisions contained herein, in which case the City and/or Trust shall be able to recover its reasonable attorney's fees, each party shall bear their own respective attorney's fees. 17. Default by User In the event User is in default of any of the terms of this Agreement, the City and Trust shall have all remedies available to it at law or in equity. If, at the sole and complete discretion of the City Manager and the Executive Director of Trust, User in any manner violates the restrictions and conditions of this Agreement, then, and in such event, after five (5) calendar days written notice given to User by the City Manager and Trust within which to cease such violation or correct such deficiencies, and upon failure of User to do so after such written notice within said five (5) day period, this Agreement shall be automatically canceled without the need for further action by the City. 18. Cancellation Either NMMA or the City may cancel this Agreement pursuant to the cancellation procedures specified in the Boat Show License Agreement. Neither NMMA nor the City shall have any recourse against the other for a cancellation effectuated pursuant to this Section, as it is understood and agreed that this cancellation is for convenience, without cause and without recourse. A cancellation of the Boat Show License Agreement will automatically effectuate the cancellation of this Agreement. No party to this Agreement will have any recourse against another due to such cancellation. 19, Surrender of Premises In event of cancellation, or at the expiration of this Agreement, User shall peacefully surrender the Premises in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Premises. Upon surrender, User shall promptly remove all its personal property, trade fixtures and equipment and User shall repair any damage to the Premises caused thereby. Should User fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City and/or Trust directing the required repairs, City and/or Trust shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay to the City and/or Trust the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, City may require User, at User's sole cost and expense, to restore the Premises to a condition acceptable to the City and/or Trust. In the event User fails to remove its personal property, equipment and fixtures from the Premises within the 10-day time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City and Trust. The City and/or Trust, at their sole discretion and without liability, may remove and/or dispose of same as the City or Trust see fit, all at User's sole cost and expense. 20, Joint Effect of Agreement Nothing contained in this Agreement shall constitute or be construed to create a partnership or joint venture between the City or the Trust and the User, or to make the City or the Trust jointly liable with User for any obligation arising out of the activities and services contemplated by this Agreement. User's relationship with the City and Trust in the performance of this Agreement is that of an independent contractor. All persons performing services which are to be performed by Page 7 of 14 User under this Agreement shall at all times be under User's exclusive direction and control and shall be employees or agents of User and not employees or representatives of the City or the Trust. 21. Governina law & Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction. Venue shall be in Miami- Dade County. 22. Waiver of Jury Trial The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other Agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City, Trust, and User for entering into the subject transaction. 23. Non -Assignment User may not assign or transfer any rights or remedies contained in this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 24. No Waiver Any failure by the City or by Trust, at any time, or from time to time, to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City or Trust from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless otherwise specified in writing and signed by the City. 25. Public Records User understands that the public shall have access to City contracts and all documents, records and reports maintained by the City which are generated pursuant to this Agreement, in accordance with the provisions of Chapter 119, Florida Statutes, as amended. 26. Notices All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to the City, the Trust, and the User at the addresses 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 certified mail, on the fifth (5tr') day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2 Avenue, 10th Floor Miami, FI 33130 USER National Marine Manufacturer's Association 9050 Pines Boulevard Pembroke Pines, FL 33024 Attention: Cathy Rick -Joule Page 8of14 WITH A COPY TO City of Miami Dept. of Real Estate & Asset Management 444 SW 2nd Avenue, Suite 325 Miami, FI 33130 And City of Miami Office of the City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 33130 And National Marine Manufacturer's Association 231 South LaSalle St. Suite 2050 Chicago, IL 60604 Attention: Chief Financial Officer 27. Interpretation Historic Virginia Key Beach Park Trust 4020 Virginia Beach Drive Virginia Key, FL 33149 And City of Miami Department of Parks & Recreation 444 SW 2 Avenue, 8`1' Floor Miami, FL 33130 This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of all parties hereto. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 28. Paragraph Headings Title and paragraph headings are made solely for reference and are not a part of this Agreement. 29. Modification No amendments or modifications to this Agreement shall be binding on any party hereto unless in writing, signed by all parties and approved by the City Manager and the Executive Director of the Trust. The City Manager and Executive Director of the Trust are further authorized to make non -substantive amendments to such Agreement, as needed, with terms and conditions more particularly set forth in the Agreement, subject to City Attorney approval. 30. Severability Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City and/or Trust, and in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. Page 9of14 It is the express intent of the parties that this Agreement constitutes an Access Agreement and not a lease or sublease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than an Access Agreement, has been created, then such provision shall be interpreted in the light most favorable to the creation of an Access Agreement and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a Agreement, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. 31. Entire Agreement This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this Agreement. The parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this Agreement or otherwise referenced and incorporated herein, and that this Agreement contains the entire agreement between the parties as to all matters contained herein. This agreement shall serve as an exhibit to the Boat Show License Agreement incorporated herein, and shall serve to supplement the terms contained therein. In the event of any conflict, the terms of the Boat Show License Agreement shall govern. [Signatures' on Following Page] Page 10 of 14 Each party has caused this Agreement to be executed by its duly authorized representatives. CITY OF MIAMI, a municipal corporation Daniel J. Alfonso City Manager ATTEST: Todd B. Hannon, City Clerk APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe Risk Management Director CONSENT OF THE VIRGINIA KEY BEACH PARK TRUST The undersigned hereby consents to and approves all the terms and conditions of the foregoing Agreement as of this day of , 2015. Guy Forchion Executive Director USER: NATIONAL MARINE MANUFACTURER'S ASSOCIATION, INC. Attest: Signature of President Signature of Secretary Printed Name Printed Name Page 11 of 14 EXHIBIT A 4000 Virginia Beach Drive, Miami, FL 33149 (a/k/a Virginia Beach Park) *Sizes and demarcation lines are approximate and subject to a formal survey **Areas indicated in red are included; areas indicated in yellow may also be included upon request and approval from the City Manager, Executive Director of the Trust, or the Director of the City of Miami Department of Real Estate and Asset Management. Page 12 of 14 EXHIBIT B INSURANCE REQUIREMENTS HISTORIC VIRGINIA KEY PARK ACCESS AGREEMENT I, Commercial General Liability (Primary and Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required $1,000,000 $2,000,000 $1,000,000 $1,000,000 City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as an additional insured Contingent Liability & Contractual Premises/Operations Liability II, Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned, or Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident, $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit Page 13 of 14 V. Umbrella Policy (Excess Follow Form including liquor) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as an additional insured Excess Follow Form over all applicable liability policies herein contained VI. Marine Operator's Legal Liability and Protection and Indemnity Liability $1,000,000 City of Miami and Virginia Key Beach Park Trust listed as an additional insured VII. Excess Marine Operators Legal Liability and Protection and Indemnity Each Occurrence/Policy Aggregate $10,000,000 City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as an additional insured VIII. Liquor Liability $1,000,000 IX. Hull and Machinery per declared value The above policies shall provide the City of Miami with written notice of cancellation in accordance with policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. The City and Trust reserve the right to request copies of all insurance policies associated with this agreement, including, but not limited to all policy endorsements, and any and all coverage information. Page 14 of 14 HISTORIC VIRGINIAffEY BEACH PARK ACCESS AGREEMENT THIS ACCESS AGREEMENT ("Agreement"), by and between the CITY OF MIAMI: ("City"), the VIRGINIA KEY BEACH PARK TRUST ("Trust"), and the NATIONAL MARINE MANUFACTURER'S ASSOCIATION, INC, ("NMMA") or ("User") either of which may be used interchangeably, is effective as of the date this (agreement is fully executed by all named parties ("Effective Date), and is entered into as follows: Recitals Whereas, the City is the owner of real property along Rickenbaeker Causeway and Virginia Key. Whereas, the NMMA. desires to utilize oertain City -owned real property in order to present to the public and operate the Miami International Boat Show ("Boat ShOw"). Whereas, the City and NMMA have entered into a Revocable :License Agreement in order to allow NMMA to host and operate the Boat Show ("Boat Show' License Agreement"), the terms of which are hereby incorporated by reference as if fully set forth. herein. Whereas, the Trust manages the historic portions of the Virginia Key Beach Park and hereby approves NMMA's access onto the property specified' below, subject to the conditions contained herein, Whereas, the .City, the Trust, and NMMA have entered into this Agreement to allow NMMA. to utilize the property specified below in furtherap6e of its operation of the Boat Show. Now therefore, for and in consideration of the mutual promises and covenants set forth herein, the parties hereby agree as follows: 1. Grant of Access • The City and the Trust grant to NMMA, its successors, employees, agents, contractors and invitees (eollectively "U'Aer"), temporary access rights, subject to the conditions and limitations contained herein and solely for the purpose and term stated below, to use certain City -owned property generally locited at 4020 Virginia Beach Drive, Miami, FL 33149 ("Premises"), and more specifically described in Exhibit A, attached hereto, 2. Purpose & Duratiim. of Access / Users hereby authorized to utilize the Premises, as shown in Exhibit A, for the purpose of providing Ifuttle services over, across, and through the premises, and parking for an estimated one thousand,:.our hundred (1.,4,00) vehicles, and for other ancillary uses, during the Boat Show. User will be/ 'uthorized to use the Premises in the manner specified for a term that shall include the five (5) d' s allocated for the Boat Show, from February 1.1, 201..6 to February 15, 2016, / Non -Exclusive User's right of access to the Premises is not exclusive, and User shall not materially interfere with the permitted uses or activities on the Premises unless specifically authorized to do so by the terms of this Agreement. The City, the ,TrIts, and. their respective suecessors, agents, assigns and grantees, shall have ti , iijo je the PfAliSes for all purposes as are permitted. by federal, - .. Page 1 of 14 state, and local statutes, laws, ordinances, codes, regulations and rules, or as determined by the City or the Trust, so long as such use does not interfere with User's rights hereunder. 4. AcCess/Use Fee User agrees to pay a fee for the User's use of the Premises ("Use Fee") to the City pi' specified in and subject to the terms of the Boat Show License Agreement, which is incorporated herein by reference. Notwithstanding the above, the parties acknowledge that NMMA will pay the City fifty percent (50%) of profits obtained as a result of the Boat Show per the Boat Show License Agreement between NMMA and the City. City and Trust agree to allocate the net profits received by City, after all applicable oosts and. expenses, in.cludin.g but not limited to expenses incurred for fire safety, pollee, EMA, and. traffic °antral, that are specifically obtained from and pertaining to Boat Show parking eri the subject Premises, as permitted by the terms of this Agreement, in the following manner: fifty/fifty (50%/50%) split whereby the Trust shall reeeive fifty percent, and the City shaltireeeive an equal. fifty percent. 5. Condition, Maintenance, & Restoration. User accept the Premises "As Is", in its present condition and st"of repair and without any representation by or on behalf of the City or Trust, and agrees that the 9ity and the Trust shall not, under any eircumsta,nee, be liable for any latent, patent or other defects/in the Premises. During its u.se of the Premises, User, at its sole cost, shall maintain the Premisesin good order and repair at all times and in an attractive, clean, safe and sanitary condition andAhall suffer no waste or injury thereto. User shall be responsible for all repairs to the Premises riquired or caused by User's use of any part thereof. User agrees to restore the Premises to the conditiorVit was prior to the Boat Show having taken place, including, but not limited to, providing repairsifbr struetural, meehanical, electrical, or other damage to the Premises or any improvements or/Personal property thereon, excluding any damage caused by ordinary wear and tear .typical in the operation of a parking facility. Such ordinary wear and tear shall be defined as th.eAnavoidable deterioration of the area and improvements that result from the uses permitted )terein., and shall not .inelud.e deterioration that results from User's negligence, carelessness, a4dent or abuse of the premises, or from User's noncompliance with the terms of this agreement/ User agrees to make all changes neepsary to the Premises at User's sole eost and expense in order to comply with all City, County', State and Federal requirements for User's use or occupancy thereof. Additionally, User agiees to maintain the Premises at its own cost and expense in accordance and in. compliance with /the terms and conditions specified in. Exhibit B, attached hereto and made a part hereof. / 6. Costs, Expenses 4 Foes Notwithstanding any otl „ r term or provision herein it is expressly understood and agreed by User that neither the City nor Trust is responsible, liable, or otherwise answerable to pay any fee, Charge, cost, expense, r imbursement or other monetary compensation to User, its agents, representatives, employees o contractors for their work or their services under this Agreement. / User shalt pay .an)/and all impositions, levies, charges, fees, or assessments imposed upon. the Premises as a result °if User's use of the Premises. In the event User appeals a fee, User shall immediately notify City/and. Trust of its intention to appeal said fee and shall furnish. and keep in effect a surety bond of/a responsible and substantial. surety company reasonably acceptable to City Page 2 of 14 in an amount sufficient to pay one hundred percent of the contested fee together with all intemt,. costs and expenses, including reasonable attorneysfees, expected to be incurred. • 7. Violations, Liens & Seourity Interest, User, at its sole expense and with due diligence and dispatch, shall seoure the cancellation, discharge, or bond off, in the manner permitted. by law, all notices of violations arising from, or otherwise in. connected with, User's use, occupancy, or operations in or on the Premises. which shall be issued by any public authority having or asserting jurisdiction. User shal.lpromptly pay its contractors, subcontractors, and material -men for all work and labor done at User's request, Should any lien, claim, or encumbrance be asserted. or filed, User shall bond against or discharge the same regardless of validity, within ten (1.0) calendar days of User's receipt of notice of the filing of said. lien, elaim, or encumbrance. In the event User fails to remove or bond against said lien or claim in. the full amount stated, th.e City without obligation to do so, may bond, settle., or otherwise remove such lien or claim and User shall pay the City upon demand any amounts paid out by City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. User further agrees to hold the City and Trust harmless from and to indemnify the City and Trust against any and all claims, demands and expenses of any contraCtor, subcontractor, material person, laborer or any other third person with whom User has contracted. or otherwise is found liable, in respect to the Premises. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or Agreement on the part dory or Trust to subject the City's or Trust's interest or estate to any liability under any mechanie's or other lien asserted by any contractor, subcontractor, material person or supplier against any part of the Premises or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other .A.greements involving the Premises shall provide for the waiver of any lien right S in. the :Premises and provide that the contracting party agrees to be bound by such provision and .include the waiver provision in any sub Agreement. 8. Advertising User shall not permit any signs, decoration, or advertising matter to be placed. either in the interior or upon the exterior of the Premises ',/iithout having first obtained the approval of the Director of Real Estate and Asset Management ('Director") or his/her designee and of the Executive Director of th.e Trust, which. approval may be Withheld for any or no reason, at their sole discretion. If approved, all such approved advertisemeniA and signs 'must comply with County and..City Sign Regulations. User must further obtain Oproval from all governm.ental authorities having jurisdiction, and must comply with all apppeable requirements set forth in the City of Miami Code and Zoning Ordinance. User shall, at its sole cost ancexpense, install, provide, maintain such sign, decoration, advertising matter or other things as in y be permitted hereunder in good condition and. repair at all times, Upon the eancellation of this 4reement, User shall, at its sole cost and expense, remove any sign, decoration., advertising matter/or other thing permitted hereunder from the Premises. If any part of the Premises is in any way' damaged. by the removal of such items, said. damage shall be repaired by User at its sole cost and expense. Should User fail to repair any damage caused to the Premises within ten (1.0) days after receipt of written. notice from. the City. and/or Trust directing the required repairs, the City and/4 Trust shall muse the Premises to be repaired at the sole cost and expense of User. User shall pay the City and/or Trust the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Page 3 of 14 9, J.nesentatons and Warranties of User a. Financially solvent. User warrants that it is financially solvent, is able to pay all deb. as they mature and is possessed of sufficient working capital to complete the Use and p Tom all obligations under this .Agreement. b, Authorization, User has taken all action necessary: for the approval and exeeuti of this agreement and has been duly authorized to commit User to all terms and conditions of this Access Agreement which shall constitute the valid and binding obligations of U./r. c. Complianee with laws. User hereby acknowledges that User's strict comp1jtnce with all applieable federal, state and loeai laws, ordinances, public agency permitth:, requirements and regulatory approvals, and regulations is a condition of this Agreemeji, and the User shall comply therewith as the same presently exist and as they may be any. fided .hereafter. 10, Discrimination. User shall not discriminate as to race, color, religion, sex, n orientation, disability or marital status in connection with its occupancy • and improvements thereon. 1.1. Hazardous Materials. 1. origin, age, sexual. d/or use of the Premises The User shall, at its sole cost: and expense, at all times, id. in all respects, eo.mply with all federal, state and local laws, statutes, ordinances and regulaf . s, rules, rulings, policies, orders, administrative actions and administrative orders ("Hazard t ri .ls .Laws"), including, without limitation, any: Hazardous Material Laws relating to industria /hygiene, environmental protection or the use, storage, disposal or transportation of any flammab., explosives, toxic, :substances or other hazardous, contaminated or polluting materials, substancesziir wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Ha ardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (colle ively "Hazardous Materials"). The User shall, at its sole cost and expense, procure, maintain in ffect, and comply with all conditions of any and. all. permits, Agreements and other governmen '1 and regulatory approvals relating to the presence of Hazardous Materials within, on, under oriabout the Premises required for the User's use, or storage of, any Hazardous Materials in or abotk,. the Premises in conformity with all applicable .Hazardous Materials Laws and prudent industry React:tees regarding management of sueh. Hazardous Materials. Upon termination or expiration of t,ifts Agreement, the User shall, at its sole cost and expense, cause all Hazardous Materials, incl;.ding their storage devices, placed in or about the Premises by the User or at the User's directiop to be rem.oved from. the Premises and transported for use, storage or disposal in .accordance an / compliance with all applicable Hazardous Materials Laws. The City and Trust acknowledge itat it is not the intent of this Article to prohibit the User from operating in the Premises for the j.es described in this Agreement. The User may operate according to the custom of the industr , so long as the use or presence of Hazardous Materials is strictly and. properly monitored a000r4ng to, and in compliance with, all applicable governmental requirements. The requirements of :iis Section of the Agreement shall survive the expiration or termination of this Agreement. 12. Security User acknowledges ti t at all times during the term of this Aeoess Agreement, it shall maintain security measures a ropriate to reasonably protect the Premises, including the staffing of personnel as may be reasonably necessary to safely operate the Premises .for the purposes .specified in Section 2 above. Page 4 of 14 1 3. Insurance Requirements 7 Prior to User, its agents, employees, representatives,. contractors, sub-eontracto , consultants or anyone else directly or indirectly employed by any of them entering upon I • Premises for the purpose of performing the permitted uses as defined herein, the User shall o,i6tain and maintain. or cause to be obtained and maintained. throughout the term of this Agreem , th types and amounts of insurance coverage set forth in. Exhibit B, attached hereto and rna6 a part hereof,. in such reasonable amounts as approved by the City's Risk Management Director , rotecting the City and Trust, against all claims for personal injury, bodily injury, property Onage, and regulatory actions by governmental agencies arising out of or related to the activities undertaken by the User upon the Premises and naming the City and the Trust as additional insure. All. policies and/or certificates of insurance are subject to review and verification by ,fie City's Risk Management Department prior to insurance approval. The City's Risk Mana.g, m.ent .Department reserves the right to make reasonable changes in the types and amounts of in ranee coverage as necessary and shall revise Exhibit B accordingly, The User shall be responsible for assuring that the insurance .eertifi ates required under this Premises remain. in full force and effect for the duration of this A.greem.ent eluding any extensions hereof If insurance certificates are scheduled to expire during the term/ •f this Agreement and any extension hereof, User shall be responsible for submitting new or rene god insurance certificates to the City's Risk Management Administrator at a minimum of ten 0)/ealend.ar days in advance of such. .expiration(s). In the event that expired certificates are not r,placed with new or .renewed certificates which cover the Occupancy and Use Period: (i) .the City shall suspend this Agreement until such time the new or renewed certificate(s) are received in acceptable form by the City's Risk Mai'gement Director; or (ii) the City may, at its sole discretion, terminate the A. emen.t for cause and seek appropriate remedies iii conjunction with the violation of the t flis and conditions of this Agreement. Compliance with the foregoing insurance requ. ements shall not relieve User of its liabilities and obligations under this Agreement. User shall .require as well its construction contractors., subcontractors, and vendors for the Project that cot,e onto the Premises to furnish the User and the City, evid.ence of the following insuranee covera this requirement is waived. in writing by the City Manager. The User's failure to requir9.thirdparties to procure insurance shall in no way. release the User from its obligations and respo,gibilities as provided. Failure to require third parties to procure insurance required. by this Section shall constitute a cause for default .of this Agreement . If it can be determined that any los or part thereof, shall be the fault of a third party (i.e. a contractor or contractors, visitors to the uilding or any other person, persons or organizations) except the City, then and in that event, the User may take ali necessary actions to cause such third. party to pay such costs and the User sfiall be responsible for the restoration of any and all losses incurred by the third party. In no event shall the City or Trust be liable for damage caused to the Premises or Properties by fire or other casualty. If no third party or parties are found. liable, or if a third party is found liable but is 'Amble to pay d.ainages, then the costs of such repairs shall be ascribed. to the User, 14. Asko tion of Risk User acknowledges nd agrees that by Use of the premises, User assumes ali risk of loss or damage to property, flf luding, without limitation, property damage, and all risk of personal injury, including but not lirnited, to death. In. no event shall the City or Trust be liable or responsible for injury, I or damage to the property, hnprovements, fixtures .and/or equipment belonging to or rented y User, its officers, agents, employees, :invitees or patrons occurring in. or Page 5 of 14 about the Premises that may be stolen, destroyed, or in any way damaged., including, . -1. 7.4 limitation, fire, flood., steam, electricity, gas, water, rain, vandalism or theft which may lea flow from or into any part of the Premises,. or from the breakage, leakage, obstruetion o Cher defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtu/es of the Premises, or from hurricane or any act of God or any act of negligence of any user, of the facilities or occupants of the Premises or any person whomsoever whether such damage es injury results from conditions arising upon the Premises or from other sources. Th.e foregoing limitation of liability will not apply where the injury, loss, or damage is the result of gross negligence or willful misconduct on the part of the City or the Trust. ,• ) 15. Ind.emnifica,tion & Hold I-iarm!ess • • The User shall indemnify, hold harmless and defend the City, Trust, 911.d. their respective offieers, employees, agents and servants from and against all claims, damage or losses, including attorney's fees, incurred to the Premises or to anyone on the Premises as a �su1t of the actions or omissions taken by the User or in connection with. User's use of the prop rty, any of its agents, employees, contractors, sub -contractors, consultants, or any other third p rson performing on its behalf. User hereby voluntarily and knowingly waives any and all Blain . against the City and Trust for personal injury or property damage sustained by the User, its ag nts, employees, contractors, sub -contractors or consultants arising out of or related. to the acfiviti. s undertaken by the UM', its agents, employees, contractors, sub -contractors, or consultants upolyth.e Premises or in connection with the Work and releases the City and Trust for any claims An. connection therewith. User acknowledges that as lawful consideration for being granted 111 right to utilize and occupy the PreirilSeS, User, on behalf of himself, his agents, invitees and et ployees, does hereby release from any legal liability the City, the Trust, and their respective offic rs, agents and employees, from any and all claims for injury, death or property da.mage resulting 70M User's use of the Premises. The foregoing release will not apply where the injury, death, or,4roperty damage is the result of gross negligence or willful misconduct on the part of the City or t .e Trust. 1.6. ,ttorney's Fees In the event it beoomes necessary for the City nd/or Trust to institute legal proceedings to enforce or interpret the indemnification provisions cot ined herein, User shall pay the City's and/or Trust's court costs and attorney's fees through all tri1 and appellate level.s, including the court costs and attorney's fees associated with. enforcing the inninification provisions. User acknowledges that Florida law proVdes for mu.tu.aiity of attornq's fees as a remedy in contract cases and speoifically and irrevocable vaives its right to collect attorney's fees from the City and Trust under applicable laws, includ'm specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of th , parties hereto that in n.o event will the City or Trust be required to pay User's attorney's fees, and court costs for any action arising out of this Agreement. In the event that User's waivir under this section. .is found to be invalid, then. User agrees that the City's and Trust's liability 'Or User's attorney's fees and court costs shall not exceed. the sum of $1.00.00, In the event that t e waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, th n he provisions of this Section shall beoome null and void and each party shall be responsible for its own attorney's fees and costs. Except in cases specified above, where the City must bring an action to enforce the indemnification provisions contain d herein, in which case the City and/or Trust shall be able to 'recover its reasonable attorney's fpes, each party shall bear their own respective attomey's fees. Page 6 of 14 1.7. Default ] U In the event User is in default of any of the terms of this Agremert, theCity and Trust shall have all remedies available to it at law or in equity. if, at the solo and eamplete discretion of the City Manager and the Exeoutive Director of Trust, User in any manner violates the restrictions and conditions of this Agreement, then, and in such event, after five (5) calendar days written notice / given to User by the City Manager and Trust within which to cease such violation or comet such/ deficiencies, and upon failure of User to do so after such written notice within said five (5) day period, this Agreement shall be automatically canceled without the need for farther action by/the City. 18, Cancellation Either NMMA or the City may cancel this Agreement pursuant to the Vaneellation procedures specified in the Boat Show License Agreement. Neither NMMA. nor the Cil(y shall have any recourse against the other for a cancellation effectuated pursuant to this Se6tion, as it is understood and agreed that this cancellationis for convenience, without eau.se and Thout recourse. A cancellation of the Boat Show License Agreement will automaticily effectuate the cancellation of this Agreement. No party to this Agreement will have any recrse against another due to such cancellation. 19. Surrender of Premises in event of cancellation, or at the expiration of this Agree1ent, User shall peacefully surrender the Premises in good. condition and repair together 1th all alterations, fixtures, installation, additions and improvements which may have been m e .in or attached. on or to the Premises. Upon surrender, User shall promptly remove all its per al property, trade fixtures and equipment and User shall repair any damage to the Premises cased thereby. Should User fail. to repair any damage caused to the Premises within ten (10) days,4fter receipt of written notice from City and/or Trust directing the required repairs, City and/or 7rust shaTi .cause the Premises to be repaired at the sole cost and. expense of User. User shall pay o the City and/or Trust the full cost of such repairs within five (5) calendar days of receipt of 1. invoice indicating the cost of such. required repairs. At the City's option, City may requiro1EJser, at User's sole cost and expense, to restore the Premises to a condition acceptable to the City Kl/or Trust. In the event User fails to remove its persoi I property, equipment and fixtures from the Premises within. the 10-day time limit set by the no ice, said. property shall be deemed abandoned and thereupon shall become the sole personal pro. ty of the City and Trust. The City and/or Trust, at their sole discretion and without liability, may r move and/or d.ispose of same as the City or Trust see fit, all at User's sole cost and expense. 20. Joint Effect of Agreement Nothing contained in this Agreementshall constitute or be construed to ereate a partnership or joint venture between the City or the T ust and the User, or to make the City or the Trust jointly liable with User for any obligation an.t of the activities and services .contemplated. by this - Agreement. User's relationship with t e City and Trust in the performance of this Agreement is that of an ind.ependent contractor. AI,1 persons performing services which are to be performed by User under this Agreement .shall at 11 times be under User's exclusive direction and control and shall be employees or agents of User and not employees or representatives of th.e City or the Trust. Page 7 of 14 26. Notices 21. Governing law & Ven:u. This .Agreement shall be governed by and eonstruedin accordanee with the laws of the State of Florida regardless of any ,conflict of law or other rules which would require the application ofthe laws of another jurisdiction, Venue shall be in Miami- Dade County. 22. Waiver of Jury Trial The parties hereby knowingly, irrevocably, voluntarily and intentionally waO any right either may have to a trial by. jury .i.n respect of any action, proceeding or eounterclaitulbased on this Agreement, or arising out of, under or in eonn.ectionwith this Agreement or an/amendment or modification of this Agreement, or any other Agreement executed. by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, isilatements (whether verbal or written) or actions of any party hereto, This waiver of jury trial i(ovisionis a material. inducement for the City, Trust, and User for entering into the subject transae on. 2 • Non -A. si n nein z*User may not assign or transfer any rights or remedies contai.'. ed in this Agreement or any portion of any privilege of occupancy and/or use granted by this Agri 'ement. 24. No Waiver Any failure by the City or by Trust, at any time, or fi,o4 time to time, to enforce and require the strict keeping and performance of any of the terms or yonditions of this Agreement shall not constitute a waiver of any such terms or conditions at any Oture time and shall not prevent the City or Trust from insisting on the strict keeping and performanOe of such terms or conditions at any later time. No waiver of any right hereunder shall be effectile unless otherwise specified in writing and signed by the City. 25, Public Records User understands that the public shall have access to City contracts and all documents, :records and reports maintained by .the City .WVich are generated. pursuant to this Agreement, in accordance with the provisions of Chapter 1.19,filorida. Statutes, as amended. 1 • All notices or other eom:municatic4s which may be given pursuant to this Agreement shall be in writing and shall be deemed propefly served if delivered by personal service or by certified :mail addressed to the City, the Trust, a. . the User at the addresses 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 certified m il, on the fifth .(5ll'). day after being posted or the date of actual receipt, whichever is earlier: CITY OF WHAM City of Miami Office of the City Manager 444 SW 2 Avenue, 10th Floor Miami, Fl. 33130 USER National Marine Manufacturer's Association 9050 Pines Boulevard. Pembroke Pines, FL 33024 Attention: Cathy Rick -Soule Page 8 of 14 WITH A COPY TO City of Miami Dept. of Real Estate & Asset Management 444 SW 2n.d. Avenue, Suite 325 Miami, Fl 33130 And City of Miami Office of the City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 33130 27. Interpretation Historic Virginia Key Beach Park Trust 4020 'Virginia Beath. Drive Virginia Key, FL 33149 And City of Miami Department of Parks & Recreation 444 SW 2 Avenue, 8th Floor Miami, FL 33130 This Agreement is the result of negotiations between. the parties and has be n typed/printed by one party for the convenience of all parties hereto. Should the provisions this A.greement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral;)ody interpreting or construing the same shall not apply the assumption that the terms hereof stall be more strictly construed against one party by reason of the rule of construction that -a instrument is to be construed more striotly against the party which itself or through its .agents prepared. same, it being agreed that the agents of both parties have equally participated in the prep .fation of this A.greement. 28. Paragraph Headings Title and paragraph headings are made solely for refere e . and are not a part of this Agreement. 29. Modification No amendments or modifications to this Agreement shall be binding on any party hereto unless in writing, signed by all parties and approved b 1 the City Manager and the Executive Director of the Trust. The City Manager and Executiver of the Trust are further authorized. to make non-su.bstantive amendments to such Agreern nt, as needed, with. terms and conditions more particularly set forth in the Agreement, subject to ity Attorney approval. 30. Severability Should any provisions, paragraphs, sentenc s, words or phrases contained in this Agreement be determined by a court of competent jurisdictio to be inval.id, illegal or otherwise unlawful, such. provisions, paragraphs, sentences, words or rases shall be deemed modified. to the extent 'necessary in order to conform with such laws, . d the same may be deemed severable by the City and/or Trust, and in such event, the remaininjteims and. conditions of this Agreement shall :remain unmodified and in full force and effect. It is the express intent of the part* that this Agreement constitutes an Access Agreement and not a lease or sublease. To further th:S intent, the parties agree as follows: (i) if any provision of. this Agreement, or the application they /6f to any circumstance, suggest that a lease, rather than an Access Agreement, has been created/then such. provision shall be interpreted in the light most favorable to the creation. of an Aceess/A.greement and (ii) if any provision of this Agreement, or the application thereof to any circumstat e, is determined by a court of competent jurisdiction to have created a lease rather than a Agree' ent, then. such provision shall. be stricken. and, to the fullest extent possible, the remaining provi' .ons of this Agreement shall not be affeeted thereby and shall continue to operate and remain in fq4i force and effect. Page 9 of 14 3l. EmtjM, AgIlgement This Agreenient incorporates and includes all prior negotiations, correspoMencl, conversations, agreements, and understandings applicable to the niattors contained in th'Is Agreement. The parties agree that ffiore are no conimitnionts, agreements, or concerning the subject niatter of this Agreement that are not ootitained in this Agreen otherwise referenced and jncurporated herein, and. that t1i,is Agreornent contains the e , gr between the parties as to all matters cotitaitied herein. This agreement shall serve as an e-Alibit to the Boat Show License Agreement incorporated lierein, and shall. serve to suppl. 'he terms contained therein. In the event of any conflict, the ternis of theBoat Show License Agro�,Inent shall / - Page 10 of 14 Each party has caused this Agreement to be executed by its duly authorized representatives, CITY OF MIAMI, a municipal corporation Daniel J. Alfonso City Manager ATTEST: Todd B. Fiannon, City clerk APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria MOndez City Attorney /". g /7 CONSENT OF THE VI:R..01MA K.EY BEACH PARK 3UST The undersigned hereby consents to and approves all the terms * conditions of the foregoing Agreement as of this day of ,21 5. Ann -Marie Sharpe Risk Management Director • Guy Forchion / Executive Director/ 4(1 USER: NATIONAL MARINE MANUFACTURER'S ASSOCATION, Attest: Signature of President Sign 'ure of Secretary Printed Name P nted Name Page 11 of 14 T A 4000 Virginia Beach' rive, M'and, EL 33149 (a/k/a Virginia Beach Park) *Sizes and demarcation lines are approximate and subject to a formal Kirvey **Areas indicated in red are included; areas indicated in yellow ma also be included.' upon request and approval from the City Manager, Executive Director of the Trust, q the Director of the City of Miami Department of Real Estate and Asset Management. / Page12of1.4 EXHIBIT B INSURANCE REQUIREMENTS HISTORIC VIRGINIA KEY PARK ACCESS AGREEMENT Commercial .General Liability (Primary and Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each OcauTence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required $1,000,000 $2,000,000 $1,000,000 $1,000,000 City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as an additional insured Contingent Liability tg), Contractual Premises/Operations Liability il Business Automobile Lia A. B. y Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned, or Scheduled Autos Including Hired, Borrowed or Non -Owned. Autos Any One Accident $ 1,0'0,000 Endorsements Required City of Miami listed as an additional insured Virginia Key Beach Park Trust listed as additio 'al insured 1 HI, Worker's Compensation Limits of Liability Statutory -State of Florid.a Waiver of subrogation IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caus y an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit Page 13 of 14 1/ V. Umbrella Policy (Excess Follow Form including liquor) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 i Aggregate $ 10,000,000 / / / VI. Marine Operator's Legal Liability and / Protection and Indemnity Liability $1,000,000 City of Miarni and Virginia Key Beach Park Trust listed as an additional jfisured City of Miami listed as an additional insured. Virginia Key Beach Park Trust listed as an additional insured Excess Follow Form over all applicable liability policies herein contained. The above policies shall provide the City of Miami accordance with policy provisions. VII. Excess Marine Operators Legal Liability and Protection and. Indem 1 ity Bach Occurrence/Policy Aggregate $io,00moo • / City of Miami listed as an additional. insured Virginia Key Beach Park Trust listed as an additional insur VIII, Liquor Liability $1,960,000 IX. Hull and Machinery /Per declared value /written notice of cancellation in / Companies authorized to do business in the State of rida, with the following qualifications, shall issue all. insurance policies required above: The company .must be rated no less than as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equiva 6nt. All policies and /or certificates of insurance are subject to review and verification by Risk Ma gement prior to insurance approval. The City and Trust reserve the ri1t to request copies of all insurance policies associated with this agreement, including, b t not limited to all policy endorsements, and any and all coverage information. Page 14 of 14