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HomeMy WebLinkAboutExhibit ALICENSE, ACCESS AND INDEMNIFICATION AGREEMENT This License, Access and Indemnification Agreement (the "Agreement"), made and entered into this day of , 2020 (the "Effective Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida whose principal address is 3500 Pan American Drive, Miami, Florida 33133 ("City"), and POSEIDON FERRY LLC, a foreign limited liability company, whose principal address is 5301 Blue Lagoon Drive Suite # 180, Miami, Florida 33126 ("Licensee"), is entered into as follows: WITNESSETH WHEREAS, the City is the fee simple owner of the property located in the greater Miami downtown area known as the Miami Convention Center, and depicted in Exhibit "A," attached hereto and made a part hereof; and WHEREAS, the Miami Convention Center abuts the Miami River and is improved with the James L. Knight Center ("JLKC") and the Hyatt Regency Miami ("Hyatt"); and WHEREAS, Hyatt owns and operates its improvement, and the City owns the JLKC, which is operated by a third party; and, WHEREAS, Licensee will be operating commuter ferry service, with a dedicated route spanning from the Miami Beach Marina to the Miami Convention Center; and WHEREAS, Licensee's vessel(s) will pull alongside the seawall, at the Miami Convention Center, for the embarkation and disembarkation of passengers; and WHEREAS, Licensee intends to construct and operate an upland facility, located inside the Miami Convention Center and depicted in Exhibit `B," attached hereto and made a part hereof; and WHEREAS, Licensee's upland facility shall, without limitation, sell tickets for the ferry, as well as provide waiting areas for ferry passengers ("Upland Facilities"); and WHEREAS, the City has agreed to permit the Licensee to construct and maintain said Upland Facilities on City -owned property; and WHEREAS, in consideration for allowing Licensee to use the seawall in furtherance of vessel operations and construct said Upland Facilities on the City -owned property depicted in Exhibit "B," Licensee has agreed to maintain in good repair and condition that portion of the seawall Licensee's vessel will pull alongside and that area of the City -owned property the Upland Facilities will improve. Licensee's use of the Upland Facilities and seawall shall, collectively, be referred to "Ferry Service;" and WHEREAS, Licensee desires to obtain from the City and the City desires to grant to the Licensee, its agents, representatives, employees or contractors a non-exclusive Page 1 of 24 EXHIBIT "A" license to use and occupy the seawall and City -owned property and access rights to enter upon both, all for the purpose of conducting Ferry Service subject to the conditions and limitations hereinafter contained; and WHEREAS, the City grants the Licensee, its agents, representatives, employees or contractors the continuous right to perform the work associated with the construction of necessary improvements and installation of necessary equipment related to or used in connection with Ferry Service compliant with all required licenses and permits. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein set forth, the parties hereto agree as follows: I. PURPOSE AND RIGHT OF ACCESS AND ADVANCE NOTICE(S). 1.1 Purpose and Right to Access. The City grants to Licensee, its agents, representatives, employees, contractors, sub -contractors, invitees, customers and consultants (hereinafter collectively referred to as "Licensee"), access rights to enter upon the Miami Convention Center for the purpose of performing the work necessary as determined by the Licensee in connection with Ferry Service, subject to Licensee providing the City's Department of Real Estate and Asset Management Director (the "Director") at 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130, twenty-four (24) hours advance written notice of date and time access is required by the Licensee to commence work. This notice requirement shall not be construed to require daily notice, but it shall be sufficient that Licensee provide the reasonably anticipated timeframe for conducting the below described scope of work. During the term of this Agreement, City hereby grants, declares and conveys to Licensee, non-exclusive access to and for the benefit of Licensee's ingress to and egress from the Miami River, adjacent public roads in, over, and upon any areas in City's other property that serves the Miami Convention Center for the purpose of Ferry Service, including, but not limited to, non-exclusive access and right of use in, to, over, under and across portions of the City's property serving the Miami Convention Center for the installation, construction, operation, maintenance, repair, relocation and removal of cleats, fenders, gangways, electric power lines, telephone lines, cable television lines and other utilities to serve the Miami Convention Center, together with the right to install and maintain, without limitation, any necessary other related facilities. Except as may be required for necessary maintenance, repair or replacements or as may otherwise be required by law, and provided City uses commercially reasonable efforts to minimize any impact to Licensee, City shall not close, materially alter, obstruct or utilize, or permit to be closed, materially altered, obstructed the Miami Convention Center in any manner which will materially interrupt, limit, restrict or impede Licensee's use and access to the Miami Convention Center. Except as may be required for necessary maintenance, repair or replacements or as may otherwise be required by law, and provided City uses commercially reasonable efforts to minimize any impact to Licensee, City shall cause the Miami Convention Center to be, at all times, open, functioning and available for Page 2 of 24 EXHIBIT "A" Licensee's use in connection with its use and operation of the Miami Convention Center. The City of Miami will grant Licensee the right to operate out of the Upland Facilities specifically the ticket booth and passenger waiting area within the Miami Convention Center between the hours of 5:30 a.m. and 10:00 p.m., daily, 365-days per year unless otherwise agreed to by both parties, as more particularly set forth in Section 2.1 below. The Licensee shall have access to the Miami Convention Center described herein to perform the Licensee Improvements described in Section 1.2 herein. 1.2 Licensee Improvements. Licensee may construct, alter, remove, repair or relocate upon the Miami Convention Center, without limitation, any improvements or other equipment now or hereafter placed upon the Miami Convention Center in connection with Ferry Service upon receiving written approval from the City Manager or the Director and acquiring all necessary permits. Licensee agrees to maintain the Miami Convention Center, Riverwalk, and seawall, as described above, in good condition and repair, in compliance with all applicable laws at its sole cost and expense, reasonable wear and tear excepted. All Licensee improvements and all other property owned by Licensee now or hereafter placed upon the Miami Convention Center, annexed to same or not, shall remain the personal property of Licensee, and Licensee shall have the right and privilege of removing such improvements and other property; provided that Licensee shall repair any damage caused by removal of any Licensee improvement so that the Miami Convention Center, Riverwalk, and seawall shall be left in a safe condition. Upon the expiration or earlier termination of this License, Licensee shall have a period of forty-five (45) days within which to remove any Licensee improvements and other such property as Licensee desires. Licensee shall not be liable for storage charges or rent or other charges for any Licensee improvements or other property left on the Miami Convention Center, Riverwalk, and seawall during such forty-five (45) day period. If Licensee fails to remove any improvements, the City may remove and dispose of, at Licensee's expense, any Licensee improvements after said forty-five (45) day period and shall not be liable for any damages occurring to said improvements in the course of doing so. City shall not have the duty to hold and/or store said improvements if it elects to remove them from the Miami Convention Center. II. DURATION AND FEE. 2.1 Duration. The term of this Agreement shall be from the period commencing upon the Effective Date and ending ninety (90) days following Licensee's receipt of the City's notice of termination of this Agreement (the "Term"). Upon termination of the Agreement, all rights and privileges derived from, and all duties and obligations created and imposed by the provisions of this Agreement, shall terminate and have no further force or effect; provided however that the termination of this Agreement shall not limit or affect any remedy at law or in equity that either party may have against any other party with respect Page 3 of 24 EXHIBIT "A" to any liability or obligation arising or to be performed under this Agreement prior to the date of such termination. Notwithstanding the foregoing, City or Licensee may terminate this License at any time by giving ninety (90) days prior written notice to the opposite party. In such event, City shall not reimburse Licensee for improvements that will remain on the premises after Licensee has vacated. Licensee shall bear all costs and expenses including but not limited to Licensee's construction, maintenance, disassembly, removal, and storage of its improvements. 2.2 Fee. In consideration of this Agreement, commencing on the Effective Date, Licensee agrees to pay a use fee ("Monthly Seawall Use Fee") to the City of twenty-five dollars ($25) per vessel foot for the use of the Riverwalk and seawall area to be used by Licensee depicted in Exhibit "C," subject to annual four (4%) percent increases, plus State Use Tax, if applicable, for each month or any portion thereof that Licensee uses or occupies said Riverwalk and seawall area. By way of example, if Licensee's vessel has a sixty-five (65) foot length overall ("LOA"), the Monthly Seawall Use Fee shall be one thousand six hundred twenty-five dollars ($1,625). Licensee also agrees to pay a use fee ("Monthly Upland Use Fee") to the City of two hundred fifty dollars ($250) for the upland area to be used by Licensee depicted in Exhibit "B," subject to annual four (4%) percent increases, plus State Use Tax, if applicable, for each month or any portion thereof that Licensee uses or occupies the Upland area. Pursuant to Section 53-1 of the Code of the City of Miami, from the Effective Date and continuing throughout the Term of the Agreement, Licensee shall pay the City a monthly "Ticket Surcharge" which is a per customer surcharge based on the price of tickets sold. The Ticket Surcharge shall be based upon the following schedule: Ticket Price Surchar:e $1.00-$14.99 $.75 $15.00-$29.99 $1.00 $30.00 and up $2.00 The Monthly Seawall Use Fee and the Monthly Upland Use Fee shall, collectively, be known as the "Monthly Use Fee" hereinafter. 2.3 Late Fee. In the event City does not receive any installment of the Monthly Use Fee within five (5) calendar days of the date in which it is due, Licensee shall pay to the City a late charge in an amount equal to five (5%) percent of the unpaid Monthly Use Fee and Ticket Surcharge. Such late fee shall constitute additional fees due and payable to the City by Licensee upon the date of payment of the delinquent payment referenced above. Page 4 of 24 EXHIBIT "A" Acceptance of such late charge by the City shall in no event, constitute a waiver of Licensee's violations with respect to such overdue amount, nor shall it prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 2.4 Manner of Payment. The Monthly Use Fee and Ticket Surcharge shall be payable no later than the fifteenth (15th) day of the month, unless the City and the Licensee agree in writing to an extension. Licensee shall deliver to the City statements setting forth the Gross Revenues, with the number of tickets and Ticket Surcharge attributable to each ticket sold broken out of the Gross Revenue, during the applicable Fee Period, and Licensee shall pay to the City the amount of Monthly Use Fee and Ticket Surcharge due and payable, to the City, pursuant to the terms of this Agreement. Said statements shall be signed and certified to be complete and correct by an officer of Licensee. Such statement shall show the Monthly Use Fee, Ticket Surcharge, and an itemization of any exclusions or deductions for the current month. Licensee shall provide the "Monthly Ticket Surcharge Statement" with a "Monthly Gross Revenue Report" in substantially the same form as attached hereto as Exhibit "E" and Exhibit "F". Licensee shall pay the City the Monthly Use Fee and the monthly Ticket Surcharge and, deliver the corresponding states, as described above, to the City of Miami, Department of Real Estate and Asset Management at the address noted below: City of Miami Department of Real Estate and Asset Management Attention: Director 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 2.5 Payment Implementation. The parties have agreed to the following Payment Implementation schedule: • The Monthly Use Fee shall be implemented upon the Effective Date of this Agreement. • The Ticket Surcharge shall be bifurcated into "Commuter Fares" and "Regular Fares." Commuter Fares are reserved for those passengers eligible for a reduced -rate ticket. Eligibility shall be determined between Miami -Dade County and Licensee. Regular Fares are to be paid by all those passengers not eligible for Commuter Fares. Accordingly, Ticket Surcharge for Regular Fares shall be implemented upon the Effective Date of this Agreement. Ticket Surcharge for Commuter Fares shall be implemented one hundred eighty (180) days after the Effective Date of this Agreement. Page 5 of 24 EXHIBIT "A" III. RESTORATION OF MIAMI CONVENTION CENTER, RIVERWALK, AND SEAWALL. Upon expiration of the Term of this Agreement, Licensee agrees, at no cost to the City, to ensure that the Miami Convention Center, Riverwalk, and seawall is restored to a similar or better condition as existed at the Effective Date of this Agreement and to repair and restore any damage to the Miami Convention Center, Riverwalk, and seawall caused as a result of or by the conduct of the Licensee's Ferry Service thereupon. IV. MAINTENANCE OF THE MIAMI CONVENTION CENTER, RIVERWALK, AND SEAWALL. Licensee, at its sole cost and expense, shall maintain and keep in good repair the area of the Miami Convention Center, Riverwalk, and seawall, as delineated on Exhibit "C." Except as otherwise contained in this Agreement, Licensee's maintenance thereto shall include but not be limited to the seawall, sidewalks, slab, drainage, making such repairs, as when needed. Licensee shall not be responsible for cleaning graffiti at the Miami Convention Center, Riverwalk, and seawall. The City shall not be required to furnish any services or facilities or to make any repairs or alterations in or to any improvement associated with the area depicted in Exhibit "C;" Licensee hereby assumes the full and sole responsibility for the condition, operation, repair, maintenance, and management of the area depicted in Exhibit "C." Upon termination of this Agreement, Licensee shall surrender the area depicted in Exhibit "C," all attached improvements associated thereto and all items of equipment affixed thereto to the City in as good a condition as existing at the time of its initial occupancy, ordinary wear and tear expected. If Licensee defaults in keeping or performing its obligations hereunder, the City shall have the right after five (5) calendar days' notice (except no notice need be sent in cases of emergency) to keep or perform Licensee's obligation in its behalf and the cost of the same shall be added to Licensee's next payment as the same becomes due or in the event such charges arise at the end of any original or renewal term hereof, such charges shall nonetheless be regarded as an additional fee due hereunder. V. INSURANCE REQUIREMENTS. Prior to Licensee, its agents, employees, representatives, contractors, sub- contractors, consultants or anyone else directly or indirectly employed by any of them entering upon the Miami Convention Center for the purpose of performing Ferry Service as defined herein, the Licensee shall obtain and maintain or cause to be obtained and maintained throughout the Term of this Agreement, the types and amounts of insurance coverages set forth in Exhibit "D," attached hereto and incorporated therein by this reference, in such reasonable amounts as approved by the City of Miami'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 Licensee upon the Miami Convention Center, Riverwalk, and seawall and naming the City as an additional insured. The insurance required hereunder shall be effective for the Term and any other extensions or renewals thereof. Page 6 of 24 EXHIBIT "A" The City's Risk Management Director shall review the insurance requirements upon any extension or renewal of the Term and reserves the right to make reasonable changes in the types and amounts of insurance coverages as necessary and shall revise Exhibit "D" accordingly as necessary. The Licensee shall be responsible for assuring that the insurance certificates required under this Agreement 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, Licensee shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Director 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 Term of this Agreement and any other extension or renewal thereof: (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 Licensee of its liabilities and obligations under this Agreement. VI. INDEMNIFICATION. Licensee shall indemnify, defend, save, and hold harmless the City and its officials, employees, for claims (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorneys' fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the negligent performance or non-performance of the services contemplated by this Agreement (whether active or passive) of Licensee or its employees or subcontractors (collectively referred to as "Licensee") which is directly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Indemnitees, or any of them, or (ii) the failure of the Licensee to comply materially with any of the requirements herein, or the failure of the Licensee to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. Licensee expressly agrees to indemnify, defend, save, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Licensee, or any of its subcontractors, as provided above, for which the Licensee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Licensee further agrees to indemnify, defend, save, and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, Page 7 of 24 EXHIBIT "A" order, rule, regulation, condition, or requirement, related directly to Licensee's negligent performance under this Agreement, compliance with which is left by this Agreement to Licensee, and (ii) any and all claims, and/or suits for labor and materials furnished by Licensee or utilized in the performance of this Agreement or otherwise. In the event that any third party asserts claims against the Licensee and/or the Indemnitees for which Licensee is defending the Indemnitees relating to the services provided, Licensee shall have the right to select its legal counsel for such defense, subject to the approval of the City, which approval shall not be unreasonably withheld. It is understood and agreed that in the event that counsel selected by Licensee charges rates greater than those customarily paid by the City at the time that such claim is asserted, the parties shall, in good faith, attempt to agree upon such rates or upon an allocation of payment of such rates. This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Licensee's obligations to indemnify, defend, save, and hold harmless the Indemnitees shall survive the termination of this Agreement. Licensee understands and agrees that any and all liabilities regarding the use of any subcontractor for services related to this Agreement shall be borne solely by Licensee throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. VII. ACKNOWLEDGMENTS; NO COST TO CITY. The undersigned hereby acknowledges that Licensee has voluntarily requested permission from the City for the purpose of utilizing City -owned property. Licensee hereby further acknowledges and agrees that none of the costs, expenses, fees, or any other amounts to be paid for the Licensee improvements (including, but not limited to, any of the costs, expenses, fees, or any other amounts to be paid to Licensee, its agents, employees, representatives, contractors, sub -contractors, consultants or anyone else directly or indirectly employed by any of them) are to be paid by the City. Licensee further acknowledges and agrees that the Licensee improvements are being undertaken by Licensee (including, but not limited to, any and all of the work to be performed by Licensee, its agents, employees, representatives, contractors, sub -contractors, consultants or anyone else directly or indirectly employed by any of them) at no cost to the City and that Licensee shall be responsible for all costs, expenses, fees, and all other amounts to be paid in connection with the Licensee improvements. VIII. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION. A. Licensee agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of Licensee which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the Licensee to the City under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and Page 8 of 24 EXHIBIT "A" records of Licensee which are related to Licensee's performance under this Agreement. Licensee agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement and all other pending matters are closed. Licensee's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. B. The City may, at reasonable times during the Term hereof, inspect the Licensee's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Licensee under this Agreement conform to the terms hereof and/or the terms of the Services Agreement, if applicable. Licensee shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-100 through 18-102 of the Code of the City of Miami, Florida as same may be amended or supplemented, from time to time. XI. PUBLIC RECORDS. A. Licensee understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Licensee's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. B. Licensee shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keeping and maintaining public records that ordinarily and necessarily would be required by the City to perform the service herein; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records to the City in a format compatible with the City's information technology systems. C. Should Licensee determine to dispute any public access provision required by Florida Statutes, then Licensee shall do so at its own expense and at no cost to the City. X. MISCELLANEOUS PROVISIONS. A. City Approval. Whenever an item herein is subject to approval by the City, the City Manager shall Page 9 of 24 EXHIBIT "A" be the sole judge of the worthiness and benefit of the item for which approval is sought and shall approve or disapprove such item at his/her sole discretion. B. Modifications, Amendments, Waivers. Any alterations, variations, modifications, or waivers of provisions of this Agreement, including, but not limited to, access to and any other uses of the Miami Convention Center, Riverwalk, and seawall shall only be valid when they have been reduced to writing, duly authorized by the City Manager, executed by the City Manager, approved by the City Risk Management Director and the City Attorney, and attested by the City Clerk on behalf of the City, and by the authorized signatory of Licensee, and attached to the originals of this Agreement. C. Assignability. This Agreement is unique in nature and may not be assigned, transferred or sold in whole or in part by any party. D. Notices. All notices pursuant to this Agreement shall be in writing and sent by certified mail or delivered by personal service to the addresses for each Party appearing on page one of this Agreement and as indicated below, or as the same may be changed in writing from time to time. With copies to: Johnathan Silvia Chief Executive Officer Poseidon Ferry LLC 5301 Blue Lagoon Drive Suite # 180 Miami, Florida 33126 Elias Correa Menendez Esq. General Counsel Poseidon Ferry LLC — c/o Trembly Law 9700 S. Dixie Highway Penthouse # 1100 Miami, Florida 33156 And with copies to: City Manager City of Miami, Miami Riverside Center 444 SW 2nd Avenue, loth Floor Miami, Florida 33130 Director, Department of Real Estate and Asset Management Page 10 of 24 EXHIBIT "A" City of Miami, Miami Riverside Center 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 City Attorney City of Miami, Miami Riverside Center 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 It is Licensee's responsibility to advise the City in writing of any changes in Licensee's contact names, addresses and/or telephone numbers. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth (5th) day after being posted or the date of actual receipt, whichever is earlier. E. Autonomy. Both Parties agree that this Agreement recognizes the autonomy of, and stipulates or implies no affiliation between, the contracting parties. It is expressly understood and intended that Licensee is only receiving access to the Miami Convention Center for the purposes of implementing the Licensee improvements and conducting the Activity and that Licensee is not an agent or instrumentality of the City, and that Licensee's agents, representatives, contractors, sub -contractors, consultants, and employees are not agents, representatives, contractors, sub -contractors, consultants, or employees of the City. F. Headings, Use of Singular and Gender. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. Wherever used herein, the singular shall include the plural and plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter as the context requires. G. Governing Law & Venue. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida without regard to its conflicts of laws provisions. Any controversies or legal problems arising out of the terms of this Agreement and any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the State courts of the Eleventh Judicial Circuit, in and for, Miami -Dade County, Florida. H. Court Costs and Attorneys' Fees. It is the express intent of the parties hereto that in no event will the City be required to pay Licensee's attorneys' fees and court costs for any action arising out of this Agreement. In the event that Licensee's waiver under this section is found to be invalid, then Licensee agrees that the City's liability for Licensee's attorneys' fees and court costs shall be limited to and shall not exceed the total sum of One Hundred Dollars ($100.00). Page 11 of 24 EXHIBIT "A" In the event that the foregoing 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 attorneys' fees and court costs. I. 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 to any action, proceeding, claim, or counterclaim based on this Agreement, or arising out of, under, or in connection with this Agreement, any renewal(s) hereof, any amendment, extension, or modification of this Agreement, or any other agreement executed between the parties in connection with this Agreement, or any other course of conduct, course of dealing, statements (whether verbal or written), or any other actions of any party hereto. This waiver is a material inducement for the City and the Licensee to enter into this Agreement. J. Force Majeure. A "Force Maj eure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, killer bee infestation, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. K. City not Liable for Delays. Licensee hereby understands and agrees that in no event shall the City be liable for, or responsible to Licensee or any of Licensee's employees, representatives, contractors, sub -contractors, consultants, or agents, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. L. Survival. All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. Page 12 of 24 EXHIBIT "A" M. Entire Agreement. This Agreement embodies and constitutes the entire understanding between the City and the Licensee concerning the Miami Convention Center, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written with respect thereto are merged therein. Nothing in this Agreement shall be construed to make the parties hereto partners or joint ventures or render either of said parties liable for the debts or obligations of the other. 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, and that this Agreement contains the entire Agreement between the parties as to all matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect. This Agreement may be modified, altered or amended only by a written amendment duly executed by all parties hereto or their authorized representatives. The City Manager is authorized to amend or modify this Agreement as needed. N. Totality of Agreement/Severability of Provisions. This Agreement with its attachments as referenced below contains all the terms and conditions agreed upon by the parties: Exhibit "A" Miami Convention Center Exhibit "B" Upland Facilities Exhibit "C" Riverwalk and Seawall Exhibit "D" Insurance Requirements Exhibit "E" Monthly Ticket Surcharge Statement Exhibit "F" Monthly Gross Revenue Report This constitutes the full and final agreement between the parties as to the subject matter of the agreement. This Agreement supersedes and replaces all prior or contemporaneous communications and agreements between the parties, whether oral or otherwise, as to its subject matter. No other contract, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind any of the parties hereto. If any provision of this Agreement is held invalid or void, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. [Signature Page to Follow.] Page 13 of 24 EXHIBIT "A" IN WITNESS WHEREOF, the City and Licensee have caused this Agreement to be executed as of the date Effective Date set forth above. WITNESSES: LICENSEE: By: By: JOHNATHAN C. SILVIA Print Name: Its: CHIEF EXECUTIVE OFFICER By: Print Name: CITY OF MIAMI, A FLORIDA MUNICIPAL CORPORATION ATTEST: BY: TODD B. HANNON DR. EMILIO T. GONZALEZ CITY CLERK CITY MANAGER APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS: BY: BY: VICTORIA MENDEZ ANN-MARIE SHARPE, DIRECTOR CITY ATTORNEY RISK MANAGEMENT Page 14 of 24 EXHIBIT "A" IIAM1 • CONVENTION:, FRS MENDEd �s.Av"F7(6 FCd�l/U rJv A 'N�.GP/1 r9l :f ,4 C V: i FcyeH fI OMJA%AIBY�e['f YY h. G(Al PiF3 .,FPS g4ti« lJ ---' City of Miami / University of Miami T JAMES L. KNIGHT INTERNATIONAL CENTER l APPENDIX A GROUND LEVEL City of Miami / University of Miami JAMES L. KNIGHT INTERNATIONAL CENTER SCALE, ^10' CONVEAR VON GENYE4 qe0 tie_ 2+°EVE. 9ETA G R' 1 L nt'AY�ON sK TCH r /L ELIA L DESCRIPTION EuEES 1 or 2 CITY OF MIAMI / UNIVERSITY OF MIAMI JAMES L. KNIGHT INTERNATIONAL CENTER SHEET Z (F2 no.W.o oia beUM= Me., s1.. BISCAYNE EINHINEERING CO. EXHIBIT "D" INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE- WATER TAXI OPERATIONS WATER FERRY SERVICE L Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Damage to Rented Premises B. Endorsements Required $1,000,000 $2,000,000 $1,000,000 $1,000,000 $300,000 City of Miami, its elected officials, board members, employees, agents, servants and volunteers listed as additional insured Contingent Liability & Contractual Premises/Operations Liability Primary Insurance Clause Endorsement II. Business Automobile Liability (If Applicable) 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, its elected officials, board members, employees, agents, servants and volunteers listed as additional insured Page 20 of 24 EXHIBIT "A" III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H Endorsement 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 IV. Vessel/Protection and Indemnity Liability A. Limits of Liability Each Occurrence/Aggregate Limit $1,000,000 Crew Liability and Jones Act Included Dock/Wharf Liability and Removal of Wreck Coverage Included City of Miami, its elected officials, board members, employees, agents, servants and volunteers listed as additional insured V. Bumbershoot Liability/Excess P&I Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 2,000,000 Aggregate $ 2,000,000 City of Miami, its elected officials, board members, employees, agents, servants and volunteers listed as additional insured Page 21 of 24 EXHIBIT "A" VI. Hull and Machinery/Mobile Equipment per declared value VII. Pollution Liability Each Occurrence/Policy Aggregate $3,000,000 City of Miami, its elected officials, board members, employees, agents, servants and volunteers listed as additional insured 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 any, and all applicable policy endorsements. Page 22 of 24 EXHIBIT "A" MAMMA TICKET SURCHARGE CUM RANT; TICKET TYPE Date mm/ddlyyyY mm/dd/1T / mm/dd/yyyy mm/dd/yyyy mm/dd/ysryy mm/dd/nry mm/dd/yrry mm/dd/yyyy mm/dd/yyyy mm/ddlyyyy mm/dd/yyyq mm/dd/yyyy mm/dd/YPPY mm/ddfyyyy mm/dd/yyyy mm/dd/yyyy mm/dd/tAyy mm/ddJyyyy mm/ddlyyyy mm/dd/yyyy mrn/dd)yyyy mm/dd/yyyy mm/dd/yyyy mm/dd/yyyy mm/dd/yyyy mm/dd/yyyy mm/ddJyyyy mm/ddJyyyy mm/d IJyyyy mm/dd/yyyy mm/dd/yyyY comp adjustment TOTAL ]INSERT DATE APO YEAR] A si.00 • $1a99 = $o.T$ B $1$.00-$29.99=$1.4:I0 C $30.00 and up = $2.00 1 D Comps N of Possengers N of Passengers N of Passengets Tom& Naf Passengers Passenger Count Taal Denly 5a)p5 Total Doe to City of Miami {A+B+C Totals) EXHIBIT "F" MONTHLY GROSS REVENUE REPORT Revenue from Sale of Tickets 1: $ All Other Revenue: $ Total Revenue: $ ' Licensee shall attach all point -of -sale receipts and or Starboard Suite Ticketing System Reports which justify the Revenue from Sale of Tickets reported above. Page 24 of 24 EXHIBIT "A"