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HomeMy WebLinkAboutExhibit A SUBRUSTY PELICAN ACCESS AGREEMENT AdvAfide 6cirt emit ce 0,(4-yloiv, THIS ACCESS AGREEMENT ("Agreement"), by and between the CITY OF MIAMI ("City"), BISCAYNE BAY RESTAURANT CORPORATION, a wholly owned subsidiary of SPECIALTY RESTAURANTS CORPORATION, d/b/a RUSTY PELICAN (collectively "Rusty Pelican"), 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 City, Rusty Pelican, and the NMMA have entered into this Agreement to allow NMMA to utilize the property specified below for the purposes and duration indicated herein 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: 1. Grant of Access Rusty Pelican and the City 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 the parking lot and restaurant facilities of certain City -owned property generally located at 3201 Rickenbacker Causeway 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 entire parking area and restaurant facilities within the Premises owned by the City and leased by Rusty Pelican for the purpose of providing exhibition and concession space, including, but not limited to, installing temporary tents, accessing and using utilities, preparing food areas, and other ancillary uses, during the Boat Show. Restaurant facilities will be restricted to Boat Show customers from February 5, 2016 through February 19, 2016. Exhibitor group functions and/or parties must be approved by NMMA prior to booking confirmation by Rusty Pelican. 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, as well as the twenty-one (21) days preceding the commencement of the Boat Show in order to set up and erect necessary equipment, and fourteen (14) days after the final date of the Boat Show to Page 1 of 14 remove and take down equipment. This term shall be equal to a total of forty (40) days from January 21, 2016 to February 29, 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, its successors, agents, assigns and grantees shall each have the right to use the Premises for all purposes as are permitted by federal, state, and local statutes, laws, ordinances, codes, regulations and rules, or as determined by the City, so long as such use does not interfere with User's rights hereunder, Rusty Pelican shall retain the right to use the restaurant, but shall not have full access to the parking lot facilities for the duration of this Agreement. Rusty Pelican acknowledges that the restaurant is within the boundaries of the gated Boat Show, and that all access must be coordinated and approved by NMMA during the set-up, show, and tear clown period. The City shall provide separate parking to Rusty Pelican employees and shuttle service during the term specified above in section 2 of this Agreement. 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. Rusty Pelican (a/k/a SRC) and NMMA shall engage in additional negotiations concerning the use of Rusty Pelican's independent resources and facilities, and such negotiations shall be memorialized in a separate and independent contract, hereinafter called the SRC Concession Agreement; the SRC Concession Agreement shall have no effect on this Agreement. The parties acknowledge that SRC will make payment pursuant to the abovementioned SRC Concession Agreement directly to NMMA; and that the City shall be entitled to 50% of said payment to be paid by NMMA pursuant to the terms of the Boat Show License Agreement. 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 Rusty Pelican, and agrees that neither the City nor Rusty Pelican shall, 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 restaurant and commercial marina. Such ordinary wear and tear shall be defined as the unavoidable deterioration of the area and improvements that result from the uses and for the term 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. Page 2 of 14 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 the City is not 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 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 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 improvements, use, occupancy, or operations in 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 City and Rusty Pelican harmless from and to indemnify the City and Rusty Pelican 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 to subject the City's interest or estate to any liability under any mechanic's, laborers', equitable 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, which approval may be withheld for any or no reason, at his sole discretion. If approved by Director, all such approved advertisements and signs must comply with County and City Sign Regulations. User must Page 3 of 14 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 directing the required repairs, the City shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. 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. Hazardous 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 "Iazardous 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 acknowledges 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 Page 4 of 14 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. 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, 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 as an additional insured. 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 Page 5of14 incurred by the third party. In no event shall the City or Rusty Pelican 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 Rusty Pelican 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 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 Rusty Pelican. 15. Indemnification & Hold Harmless The User shall indemnify, hold harmless and defend Rusty Pelican, the City, its 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 Rusty Pelican and the City 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 Rusty Pelican and the City 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 Rusty Pelican, the City, its 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 Rusty Pelican. 16. Attorney's Fees In the event it becomes necessary for the City to institute legal proceedings to enforce or interpret the indemnification provisions contained herein, User shall pay the City'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. Page 6 of 14 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 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 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 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. Except in cases specified above, where the City must bring an action to enforce the indemnification provisions contained herein, in which case the City 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 shall have all remedies available to it at law or in equity. If, at the sole and complete discretion of the City Manager, 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 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 directing the required repairs, City shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay to the City 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. In the event User fails to remove its personal property, equipment and fixtures from the Premises within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and Page 7 of 14 without liability, may remove and/or dispose of same as the City sees 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 and the User or Rusty Pelican, or to make City or Rusty Pelican 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 Rusty Pelican in the performance of this Agreement is that of an independent contractor. All persons performing services which are to be performed by 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 Rusty Pelican. 21. Governing 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, Rusty Pelican, and User 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 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 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 Page 8 of 14 mail addressed to the City and the User at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth (5r1') 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, Fl 33130 WITH A COPY TO City of Miami Dept. of Real Estate & Asset Management 444 SW 2nd 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 USER National Marine Manufacturer's Association 9050 Pines Boulevard Pembroke Pines, FL 33024 Attention: Cathy Rick -Joule RUSTY PELICAN Biscayne Bay Restaurant Corporation d/b/a Rusty Pelican 8191 East Kaiser Boulevard Anaheim, CA 92808 Attn. President & General Counsel 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 both parties and approved by the City Manager. The City Manager is 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 in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. Page 9 of 14 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. Page 10 of 14 Each party has caused this Agreement to be executed by its duly authorized representatives. CITY OF MIAMI, a municipal corporation By: Daniel J. Alfonso, City Manager ATTEST: Todd B. I -Lannon, City Clerk APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe Risk Management Director BISCAYNE BAY RESTAURANT CORPORATION Attest: S ignature of President Signature of Secretary Printed Name Printed Name SPECIALTY RESTAURANTS CORPORATION Attest: Signature of President Signature of Secretary Printed Name Printed Name USER: NATIONAL MARINE MANUFACTURER'S ASSOCIATION, INC. Attest: Signature of President Signature of Secretary Printed Name Printed Name Page 11 of 14 EXHIBIT A 3201 Rickenbacker Causeway Miami, FL 33149 (a/k/a Rusty Pelican Lease Area) * Sizes and demarcation lines are approximate and subject to a formal survey, Page 12 of 14 EXHIBIT B INSURANCE REQUIREMENTS RUSTY PELICAN 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 City of Miami listed as an additional insured Contingent Liability & Contractual Premises/Operations Liability II. Business Automobile Liability $1,000,000 $2,000,000 $1,000,000 $1,000,000 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 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 Excess Follow Form over all applicable liability policies herein contained VI. Marine Operator's Legal Liability and Protection and Indemnity Liability City of Miami listed as an additional insured VII. Excess Marine Operators Legal Liability and Protection and Indemnity Each Occurrence/Policy Aggregate City of Miami listed as an additional insured VIII. Liquor Liability $1,000,000 $10,000,000 $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 reserves 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 14of14 RUSTY PELICAN .ACCESS AGREEMENT T.FFIS ACCESS AG.R.EEM ENT ("Agreement"), by and between the CITY OF M IAM ' ("City"), BiSCAYN.E BAY RESTAURANT CORPORATION, a wholly owned subsidiary of ECIA ,TY RESTAURANTS COR.PORAT.ION, d/b/a RUSTY PELICAN (collectively "Rusty Pcli, an"), 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"), an.d is entered into as follows: Recitals Whereas, the City is the owner of i ea:l properly along Ricletibacker m.auseway and Virginia. y. Whereas, the NMM.A desires to utilize certain City -owned real 7ropert:y in order to present to the public and operate the Nliami international Boat Show ("Boat Show"). Whereas, the City and NN1:.M..A have entered into a Revoc le License Agreement in order to allow NM.M..A. to host and operate the Boat Show ("Boat Show Lice hereby incorporated by reference as if fully set forth. herein. Agreement"), the terms of which are 'Whereas, the City, :Rusty Pelican, and. the NM A have entered into this .Agreement to allow NNI.M.A to utilize the property specified.below for the purposes and duration indicated herein in furtherance of its operation of the Boat Show. Now therefore, for and in consideration of t e rrr.utnal promises and covenants set forth herein, the parties hereby agree as follows: Grant of Access Rusty Pelican and the City g artt to NMMA., its successors, employees, agents, contractors and invitees (collectively "User"), trr77po.rary access .r•igh.ts, subject to the conditions and li.nri.tations contained herein and solely for re purpose and terra stated below, to use the parking lot and restaurant facilities of certain City -owned property generally located. at 3201 R:ickenhac.ker Causeway .Miami, Fi... 33149 ("Premises"), and more specifically described in Exhibit: A, attached hereto. Purpose & Duration of Ac User is hereby authorized to utilize the entire parking area and.restaurant :facilities within the Premises owned I the City and teased -by .Rusty Pelican for the purpose ofproviding exhibition. and concession spa e, itieludin.g, but not limited. to, .instal.iin.g temporary tents, accessing and using utilities, preparing ood areas, and other ancillary uses, during the Boat Show. Resta.ure.nt facilities will be restricted to Boat Show customers from February 5, 2016 through .February 1.9, 2016,.Exhibitor group :functions and/or parties must be approved by NMMA prior to hooking confirmation by .Rusty Pelican. Uspr will he authorized to use the Premises in the manner specified for a term that shall inelude the five (5) days allocated for the Boat Show, from February 1. l., 20.16 to February 15, 2016, as well aA the twenty-one (21) days preceding the comrneneement of the Boat Show in order to set up and erect necessary equipment, and. fourteen (14) days after the final date of the Boat Show to Page 1 of 14 remove and take down ectui•pmeitt. This term shall be equal to a total of forty (40) days from January .21„ 2016 to .February 29, 2016, 3. Non -Exclusive 4, 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 specifical ly. a.uthoried to do so by the terms of this Agreement. The City, its successors, agents, assigns and gar ees shall each have the right to use the Premises for all purposes as are permitted by federa , state, and local statutes, laws, ordinances, codes, regulations and rules, or as determined by the 'ity, so long as such use does not interfere with. User's rights hereunder. Rusty. Pelican shall retain the right to use the restaurant, but shall lot have hill access to the parking lotfacilities for the duration of this Agreement. ,R.usty Peli an. acknowledges that the restaurant is within the boundaries .of the gated ,Boat Show, . that ati access must be coordinated and approved by NMMA during the set-up, sho , and tear down period, The City shall provide separate parking to Rusty .Pelican employees id shuttle service during the term specified above in section 2. ofthis Agreement Access/Use Fee User agrees to pay a fee for the User's use e .P.remises ("Use Fee") to the City as specified in and subject to the terms of the .Boat Sho icense Agreement, -which is incorporated herein by reference. Rusty Pelican (a/k/a SRC) and N,MMA sh 11 engage in a.dditional negotiations concerning the use of -Rusty Pelican's ind.ependent resourcs and facilities, and such negotiations shall be memorialized in a separate and independent ontr•act, hereinafter called the SRC Concession Agreement; the SRC Concession Agreement slv .1 have no effect on this Agreement. The parties acknowledge that SRC winmake payment pursuant to the abovementioned SRC Concession Agreement directly to NIViM.A; and that the City shall be entitled 10 5O% of said payment to he paid by NMMA pursuant to the terms of the Boat Show 1.,•icense ,Agreement. 5, Condition, Maintenance, & Restoration. User accept the Premises "A.s .s", in its present condition and state of repair and without any representation by or on behalf of t- e City or Rusty .Pelican„ and agrees that neither the City nor Rusty Pelican. shall, under any e•ir umstance, be liable for any latent, patent or ,other defect:s in the Premises. .During its use of the emises, 'User, at its sole cost, shall maintain the Premises in good order and repair at all times andAn an attractive, clean, safe and sanitary condition and shall suffer no waste or injury th.ereto. Us/r shall be .responsible for all repairs to the Premises required or caused by 'User's use of any par • thereof. User agrees to ream. the Premises to th.e condition it was prior to the Boat Show having taken place, in.cluding, but not' limited to, providing repairs for struetural, 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 .restaurant and commercial marina. Such ordinary wear and tear shall be defined as the unavoidable deterioration of the area. and improvements that result from the uses and for the term permitted herein, and. shal.lnot include deterioration that restilts from User's negligence, carelessness, accident or abuse of' the premises, or front User's •non.coinpliance with the terms of this agreement. Page 2 of 14 'User agrees -.to make, all changes necessary to the 'Premises at -User's sole cost and expense in order to comply with alt City, County, State and Federal requirements for Users use occupancy thereof, Additionally, User agrees to maintain the Premises at its own cost and .pense in accordance and in eomplia.nce with the terms and conditions specified in Exhibit attached hereto and made a part hereof 6. Costs,Fxpenses & Fees Notwithstanding any other term or provision herein it is expressly understood and agreed by User that the City is not responsible, liable, or otherwise answerable to ay 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 A i•eement. User shall pay any and all hripositions, levies, charges, f s, or assessments imposed upon the Premises as a result of User's use of the Premises. In the ent User appeals a fee, User shall immediately notify City of its intention to appeal said fee a shall furnish and keep in effect a surety bond of a responsible and substantial surety com.pal y reasonably acceptable to City in an amount sufficient to pay one 'hundred percent of the coat led flee together with all interest, costs and expenses, including reasonable attorneys' fees, expe to be incurred, 7.Violation.sek,iens & Securityinterest. User, at its sole expense and with due d',:ige.nee and dispatch, Shall secure the cancellation, discharge, or bond off, in the manner permit d. by law, all notices of violations arising from, or otherwise in conneeted. with, User's improv ments, use, occupancy, or operations in the Premises which shall be issued by any public autho ity having or asserting jurisdiction. User shall promptly pay its contractors, subcontractors, and .r.aterial-men f'or all work and labor done at User's request. Should any lien, claim, or eneumbranc- be asserted or filed, User shall bond against or discharge the same regardless of validity, within ten (I 0) calendar days of User's receipt of notice of the filing of said lien, claim., or encumbrance. li/th.e 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 City and Rusty Pelican harmless :from and to indemnify the City and Rusty Pelican 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 to subject the City's interest or estate to any liability under any mee.hanies, laborers'„ equitable or other lien asserted by any contraetor, subcontractor, material person (Yr supplier against any part of the Premises or any of the improvements thereon. All .contra.cts, 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 E.state and Asset .Management ("Direct:of') or his/her d.esignee, which approval may f)e withheld for any or flo reason, at his sole diseretion. If approved by Director, all such app. ved advertisements and signs must comply with Courayand CityeSign Regulations. User must Page 3 of 1.4 9, further obtain approval from all governmental authorities having jurisdiction, and must c9iply with .a1.1 applicable requirements set forth in the City of ..1Vtiarni Code and Zoning Ordinance. User shall, at its sole cost and expense, install, provide, .maintain such sign, decoration, advertising inatter 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 1.11S, said damage shall. be repaired by User at its sole cost and expense. Should User fail to rep' .r any damage caused to the Premises within ten (1O) clays after .receipt of written .notice from •he City directing the required. repairs, the City shall cause the .PfertliSeS to be 'repaired at the so cost and expense of -User, User shall pay the City the full cost of such. repairs within five (5) da, s of receipt of an invoice indicating the cost of such required repairs. Representations and Warranties of -User a. Financially solvent. User warrants that it manciatly solvent, is able to pay all debts as they mature and is possessed of sufficient orking capital to complete the Use and perform all obligations under this .Agreement. - b. Authorization. User has taken all act •neeessary for the approval and execution of this agreement and has been duly aut.hori .ed to commit User to all terms an.d conditions of this Access .A.greement which shall eon' itute the valid and binding obligations of User. e. Compliance with laws. User he by acknowledges that User's strict compliance with all applicable federal, state and l.o al laws, ordinances, public agency permitting requirements andregulatory approvals., an regulations is a condition of this Agreement, and the User shall comply therewith as .t1 same presently exist and as they may be amended hereafter. 10. Discrinlinati()n User shall not disc', nunate as to race, color, religion, sex, national origin, age, sexual orientation, disability or n rital status in connection with its occupancy and/or use of the Premises and. improvements there( Hazardous .Materials. The User ialt, at its sole oost and expense, at all times, and in all respects, comply with all federal, state an local laws, statutes, ordinances and. regulations, rules, rulings, policies., orders, administrative ....s and administrative orders ("Hazardous Materials .Laws"), including, without limitation, any Ha.zardous Material Laws relating to industrial hygiene, environmental protection or the use, stor .ge, disposal or transportation of any flammable explosives, toxic substances or other hazardous, ontaminated or polluting materials, substances or wastes, including, without limitation, any "Haz -dons Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under an 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. a permits, Agreements and other governmental and regulatoryapprovals relating to the pres ice of .14azardous .Materials within, on, .under or about the Premises required for the User's use, or orage of, any Hazardous Materials in or about the Premises in conformity with all applicable zardous Materials Laws and prudent industry practices regarding management of such Hazardous aterials. 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 dit•ection, to be removed from the Premises and transported for use, storage or disposal in accordance and. compliance with all applicable IIa.zardotis -Materials Laws. The City acknowledges that it is not the intent of this .Artiele to, prohibit the User from operating in the .Pre.mises :for the uses described in this Agreement. 'The User may operate according Page 4 of 14 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 requireinents. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. I 2. 5..ec User acknowledges that at all times during the term of this .Access A rennient, it shall maintain security measures appropriate to reasonably protect the Premises, incl . ding the staffing of personnel as may be reasonably necessary to safely operate the Premises for ie purposes specified in Section 2 above. 13. 11.11:111.1.14111 Rgq.git.gow.!.:11,5 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 de tried 'herein, the User shall obtain and maintain or cause to be obtained and maintained through .ut the term of this Agreement, the types and amounts of insurance coverage set :forth in E>hib B, attached hereto and made a part -hereof, in such reasonable amounts as approved by the City' Risk Management Director protecting the City, against all claims for personal injury, bodily .njury, property damage, and regulatory actions by governmental agencies arising out of or .relat- .1. to the activities .undertakenby the User upon the Premises and .11.ariling .the City as an additiona insured. All policies and/or certificates of insurance are subject to review and verification by the ity's Risk Management 'Department prior to insurance approval. The City's Risk .Management De, artment reserves the right to .make reasonable changes in the types and amounts of insurance cov -rage as necessary and shall revise Exhibit 13 accord 1 ngly, The User shall be responsible for assurinr that the insurance certificates required under this Premises remain in full force and effect for the d 'ration of this Agreement, including any extensions hereof, If insurance certificates are scheduled o expire during the term of this Agreement and any extension hereof, 1.1ser shall be responsible f submitting new or renewed insurance certificates to the City's Risk 'Management Administrator at a .minimum of ten (10) calendar days i.n advance of such expiration(s). In the event that exp'red. certificates are not replaced with new or renewed certificates which cover the Occupancy al 1 Use Period: (i) the City shall suspend this .Agr • ment until such time as the new or renewed certificate(s) are received in acceptable fori by the City's Risk 'Management Director; or (ii) the City may, at its sole dis retion, terminate t.h.e .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 .responsibilitics 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 he 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 rna.y take all necessary actions to cause such third party tc) pay such costs and the User shall be responsible for the restoration of any and all losses 'Page 5 of 14 incurred by the third party. In no event shall the City or Rusty Pelican be HAI* for damage caused to the Premises or Properties by fire or other casualty. If.n.o 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 person injury, including but not limited to death, In no event shall the City or Rusty Pelican be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equip lent 'belonging to or rented by User, its officers, agents, employees, invitees or patrons oecurrin, in or about the 1..),re.mises that 'may be stolen, destroyed, or in any way damaged, including., without fire, flood, steam, electricity, gas, water, rain., vandalism or theft which :m• y leak or -flow ..from or into any part of the Premises, or fromthe breakage, leakage, obstruct 'm or other detects of the pipes, sprinklers, wires, applianees, plumbing, a„ir conditioning or light....g fixtures of the .Premises, or :from hurricane or any act of God or any act of negligence of (.1 ny user of the facilities or occupants of the Premises Or any person whomsoever whether suchamage or injury results from conditions arising upon the Premises or from other sourees, The fo egoing limitation of liability will not apply where the injury, loss, or damage is the result of ross 'negligence or willful misconduct on the part of the City or R.usty -Pelican. 11.5. Indemnification <S) Hold Harmless The User shall indemnify, hold harmless and defend Rusty -Pe:fcan, the City, its officers, employees, agents and servants 'from and against all clairns, damages or )sses, including attorney's fees, incurred to the Premises Or to anyone on the Premises as a resul of the actions or omissions taken by the User or in connection with User's use of the property, , ny of its agents, employees, contractors, sub -contractors, consultants, or any other third person per .orming on its behalf. User hereby voluntarily and knowingly waives any and all . laims against Rusty Peliean and the City for personal injury or property damage sustained by .the 'User, its agents, employees, contractors, sub-eantra.ctors or consultants arising out of or rel ted to the activities undertaken by the telser, its agents, employees, contractors, sub-co.ntraetors, or consultants upon the Premises or in connection with the Work and releases .Rusty Pelican and ti.e City for any claims in connectio.n. therewith, User acknowledges that as lawful consideration r being granted the right to utilize and. occupy the Premises, User, on behalf of himself, his agen invitees and employees, does hereby release from any legal liability Rusty Peliea.n, the City, its fficers, agents and employees, from any and all claims for injury, death or property damage result ng from User's use of the .Premises. The foregoing release will not apply where the injury, deatl or property damage is the result of gross 'negligence or willful misconduct on the part of the City or Rusty Pelican, 16, Attorney's Fees In the event it 'becomes necessary for the City to institute legal proceedings to enforce or interpret the 'indemnification provisions contained. 'herein, User shall pay th.e City's court costs and. attorney's fees throughall trial and appellate levels, inducting the court costs and attorney's fees associated with enforcing the indemnification provisions, User acknowledges that Florida law provides f'or .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 under applicable laws, including specifically, but not thnited to Section 57.1.05, Florida Statutes, :ft is the express intent of the parties hereto that in no event will the City he required to pay User's attorney's fees and court costs for any action arisin.g out of this Agreement. In the event that Page 6 of 14 User's waiver under this section is found to be invaaid, then User agrees t.h.at the City's liability for User's attorney's fees and court costs shalt not exceed the sum of $1.00,00. 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, Except in cases specified above, where the City must bring an action to enforce fl indemnification provisions contained herein, in which case the City 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 shall hav ill remedies available to it at law or in equity. l.f at the sole and complete discretion of the City :Manager, 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 Manage within which to cease such violation or correct such deficiencies, and. upon failure of User to cI so after such written notice .within said five (5) day period, this Agreement shall be automatical anceled without the need for further action by the City. 18, Cancellation Tither NMMA. or the City rimy cancel this Agreement pursuant procedures specified in the Boat. Show Lieense Agreement. Neither NMMA no any recourse against the other for a ca.ncella.tion effectuated pursuant to understood and agreed. that this cancellation is for convenience, without cause ;o the cancellation r he City shall have Section, as it is rid without recourse. A cancellation of the Boat Show License Agreement will auto atically effectuate the cancellation of this .Agreement. No party to this Agreement will have any recourse against another due to such cancellation. 1.9. Srrrrencler° of 1'rernis In event of eancellation, or at the expiration of this .tl feerrr.ent, User shall peacefully surrender the Premises in good condition an.d repair together with all alterations, fixtures, installation, additions and impro-vements 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 directing the required repairs, City sha.11 cause the .Pr irises to be repaired at the solo cost.a.nd expense of User. User shall pay to the City the fall cost o. such repairs within live (5) calendar days of receipt of an invoice indicating the cost of such requi ed repairs. At the City's option, City may require User, at User's sole cost and expense, to restore he Premises to a condition acceptable to the City. In the event User fails to remove its persc/nal property, equipment and fixtures from the Premises within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of slime as the City sees fit, all at User's sole cost and. expense. / Page 7 of IA 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 and the User or Rusty Pelican, or to make City or Rusty .Pelican 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. Rusty Pelican in the performance of this .Agreement is that of an independent contractor. All persons performing services which are to be perfor ned by User under this Agreement shall at all times be under User's exclusive direction and control ‘ncl shall be employees or agents of User and not employees or representatives of the. City or Rusty Pel'can, 21. Governing .. w & Venue 'fhis greemerit shall be governed by and construed in accordance with the laws of the State of Florida re g4 rdless of any conflict of law or other rules which would require tiro application of the laws of anothe jurisdiction. Venue shall be in Miaami- Dade County. 22. Waiver of.lur Tr1. l'he parties h, reby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a. iris I by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising or of, under or in connection with this Agreement or a.ny amendment or modification of this Agree rent, or any other .Agreement executed by and between the parties in connection with this Agreem nt, or any course of conduct, course of dealing„ statements (whether verbal or written) or actions o any party hereto. This waiver of jury trial provision is a material inducement for the City, Rusty Pc 'can, and User entering into the subject transa.ct.ion. 23. Non -Assignment User may not assign or transfer a.:ry rights or remedies contained in this Agreement or any portion of any privilege of occupancy an.d/o° use granted by this Agreement. 24, No Waiver Any failure by the City at any time, or fi•: Ti time to time, to enforce and require the strict • keeping and performance of any of the terms or con litio.ns of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and. performance of suc' te.ms or conditions at any later time. No waiver of any right hereunder shall be effective unless of ' e;rwise specified in writing and signed by the City. 25. Public .Records 'Licensee understands that the public shall have a.ccess, a. a].1 reasonable times, to City contracts and all documents, records and reports maintained and gene. 'rted pursuant to this License, pursuant to the provisions of Chapter 'I 19, Florida Statutes, as arnende including compliance with the provisions of Section 1 19,0"701, Florida Statutes, entitled. "Contracts; aublic records" and agrees to allow access by the City and the ;public to all documents subject to di; closure under applicable law. Notices All notices or other communications which nia.y be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service• or by certified. Page 8 of 14 snail addressed to the City and the User at the address indicated herein or as the same may he changed from. time to time. Such :notice shall be deemed givens on the day on which personally. served; or if by certified snail, on the fifth (51r') day after being posted or the date of actual receipt, whichever is earlier: TY OF MIAMI Cit'. of Miami Office 7f the City Manager 444 SW 2 Avenue, 10`i' Floor Mia ni, Ff 3130 WITH A COP': TO .................................... _._.... City of Mia.tni Dept, of Real Esta & sset Management 444 SW 2nd Avenu+:, Buie, 325 Miami, FL 331.30 And. City of Miami Office of the City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 3.3130 2 7 ..Interpretation USER National .Marine Manufacturer's Association 9050 Pines Boulevard Pembroke Pines, FL 33024 Attention: Cathy Rick -Joule RUSTY PELICAN Biscayne Bay Restaurant Corporation. d/b/a. Rusty Pelican 8.191 East Kaiser Boulevard. Anaheim, CA 92808 Attn. President. & General Counsel "l::his Agreement is the result of negotr ions between. the parties and has been typed/printed by one party :for the convenience of all parties Thereto. Should the provisions of this Agreeme.nt require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting o.r 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 iltrough its agents prepared same, it being agreed that the agents of both parties have equally partcipatel: in the preparation of this Agreement. 28. Para z_ph 1 .-lea.d.ings Title and paragraph headings are made solely for t°efer r ryc e. and are not a part Of this Agreement. 29, Modification No amendments or modifications to this Agreement shall be bind. ag on any party hereto unless in writing, signed by both parties and approved by the City Manager. The City Manager is :further authorized to snake 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. Seyetahility 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 he deemed modified to the extent. necessary in order to conform with such laws, and the same ni.ay be deemed severable by the City, and in such event, the remaining terms and conditions of this A.g;reement shall remain t:rnmodited and in. full force and effect. Page 9 of 14 ft is the express intent of the parties that this Agreement constitutes aii Access Agreement and not a lease or -sublease. To further this intent, the parties agree as follows: (i) if a provision .of this .Agreement, or the application thereof to any circumstance, suggest that a lea -rather than an. Access Agreement, has been created, then such provision shall be interpretsinterpretf in the light most favorable to the creation of an Access Agreement and (ii) if any provision of is Agreement, o.r the application thereof to any circumstance, is determined by a court of compe jurisdiction to have created a lease rather than a Agreement, then such pro -vision sh.al.I be s icke.n. and, to the fullest extent possible, the remaining provisions of this .Agreement shall not b affected thereby and shall continue to operate and .remain in full -force and effect, 31. Entitic....Agt.gPMPlat. 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, a„greements, or understandings concerning the subject matter of this Agreement thk • are not contained in this .Agreement or otherwise -ref.erenced andincorporated herein, and tha this Agreement contains the entire agreement between the parties as to all matters contained here 11. This a.greement .shall serve as an exhibit to the Boat Show .License Agreement incorporated Accent., and shall SQI'VO to supplement the terms contained therein. In the event of any conflict, t 0 terms of the Boat Show '.1,,„ice.nse .Agreement shall govern. Page .1.0 of 14 Each party has caused this Agreement to be executed by its duly authorized .epresentatives. CITY OF MIAMI, a municipal corporation By: ATTEST: T'od.d B. Hannon, City Clerk APPROVED AS TO LEGAL :FORM AND Daniel J. Alfonso, City Manager A.P.PROVED AS ITO INSURAN CORRECTNESS: REQUIREMENTS: Victoria :Mendez City Attorney Ann -Marie Sharpe Risk Management Dir BISCAY:NE BAY RESTA lj ANT CORPORATION S ignature of President Printed Name Attest: Signature of c •etary Printed Nai e SPECIALTY REST.AURANTS CORPORATION Signature of President Printed Name Attest: 'gnat:Ere of Secretary Printed Name USER: NATIONAL MARINE MA:NU: ACTURER'S ASSOCIATION, INC. Attest: Signature of President Signature of Secretary Printed Name Printed Name Page 11 of 14 Exmar 3201 Rickenbacker Causeway Miami, FL 33.149 (a/k/a Rusty Pelican .Lease Area) 1:* * Sizesand d areation lines are approximate and subject to a formal survey. ( Page 12 or 14 EXHIBIT B INSURANCE REQUIREMENTS RUSTY PELICAN ACCESS AGREEMENT Commercial General Liability (Primary and Noii Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Oc irrence General A gregate Limit Products/C mpleted Operations Personal an.c Advertising Injury B. Endorsements R. quired Gity of Mia.mi.listeL Contingent Liability Premises/Operations L 11. Business Automobile Liability A. Limits of Liability :Bodily :Injury and Property Damage iability Combined Single Limit Any Auto, Owned, or Scheduled .Autos Inc luding Hired, Borrowed or Non -Owned Autos .Any One .Accident $ 1,000,000 B. III. WO s an additional insured ontractual. itity '1,000,000 $2,000,000 $1,000,000 $1.„000,000 Endorsements Required City of Miami :listed as an additional insured ker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability S1,000,000 :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 Iim:it Page 13 of 14 V. 'Umbrella Policy (Excess Follow Form including liquor) A. Limits ofLiability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate 8 10,000,000 Ity of Miami listed as an additional, insured Ex 's Follow Form over all applicable liability policies herein contained. 'VI. Marine Ope or's Legal Liability and. Protection a d Indemnity Liability. $1,000,000 City of.Miannsted as an. additional insured V11. Excess Marine ()perat. s Legal Liability and Protection and Inden y Each Occurrence/Policy. Ag gate $10,000,000 City ofMiami listed. as an add mal insured Liquor Liability $1.,000,000 Hull and Machinery per declared value The above policies shall provide the City of Miami with ,'itten notice of cancellation in accordance with policy provisions. Companies authorized to do business in the State of Florida, with c fallowing qualifications, shall issue all insurance policies required above: Th.e company must be rated .n.o .less than "A..." as to managemen , and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guic. published by A.M. Best Company, Oldwiek, New Jersey, or its equivalent. All policies and /or calificates of insurance are subject to review and verification by Risk Management prior to insurance a proval. Ile City reserves the right to request copies of all insurance policie, associated with this agreement, including, but not limited to all policy endorsements, and, ay and all coverage inibrniatio Page 1.4 of 14