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EXHIBIT 10.17
USE AGREEMENT
USE AGREEMENT dated June 28, 1997 (this "Agreement" or the
"Agreement"), between BAYFRONT PARK MANAGEMENT TRUST, a limited agency and
instrumentality of the City (the "Trust"), and BAYFRONT VENTURES, d/b/a The
Bayfront Princess, a Florida joint venture consisting of Xxx Equity Group, Inc.
and Goldcoast Entertainment Cruises, Inc. ("User").
The parties hereby covenant and agree to the following:
1. PRIVILEGE OF ENTRY. In consideration of the covenants and
agreements hereinafter set forth, the Trust does hereby grant unto User:
(a) the privilege of entry upon or into Bayfront Park
(the "Park") through access points which provide reasonable access to
the facilities described herein and
(b) the exclusive right to enter upon the related
facilities described below and to use and occupy said facilities for
the purpose of docking vessels,
for the term (the "Term") provided herein. User's customers, employees and
other invitees shall also be permitted to use said facilities and to have
rights of ingress and egress into and out of the Park for the purpose of
embarking and disembarking User's vessels.
This Agreement shall be subject to the lease between the City of Miami
(the "City") and the Secretary of the Army on behalf of the United States of
America dated August 16, 1990, as supplemented (the "Army Lease"),
#DACW-17-1-90- 0001, a copy of which is attached hereto as Exhibit A. The Army
Lease, as supplemented by Supplemental Agreement No. 1, prohibits gambling on
the vessels while the vessels are docked.
The rights conferred upon User hereunder do not constitute a lease of
real property, and do not create a relationship of landlord and tenant between
the Trust and User.
2. FACILITY. The facilities which are the subject of this
Agreement (the "Facility") are:
1. the entire dock space situated in the northerly
portion of the Park, as shown on the site plan (the
"Site Plan") attached as Exhibit B hereto (the "North
Dock").
2. the entire dock space situated in the southerly
portion of the Park, as shown on the Site Plan (the
"South Dock"; together with the North Dock, being
collectively called the "Docks").
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In addition to the Docks, the Trust shall permit User to use the
portion of the Park adjacent to and lying to the west of the North Dock, and
shown on the Site Plan as the "Adjacent Land". The Adjacent Land shall not
extend westerly by more than such distance as the City of Miami Attorney and
the Trust Architect consider to be "de minimus". The parties acknowledge that
an extension of 10 feet has already been determined to be "de minimus".
3. TERM.
1. The initial term of this Agreement (the "Initial
Term") shall be for five (5) years, commencing at 12:01 AM on September 1, 1997
(the "Commencement Date"), and terminating at 11:59 PM on the day prior to the
fifth anniversary of the Commencement Date (the "Termination Date"), unless
extended or earlier terminated as provided herein. The Initial Term, as so
extended or earlier terminated, is herein called the "Term". Each year of the
Term, commencing on the Commencement Date and on each anniversary of the
Commencement Date, is herein called a "Contract Year".
2. Provided that no Event of Default shall have occurred
and be continuing, User shall have an option (the "Extension Option") to extend
the Term for one (1) additional five (5) year term (the "Extension Term"),
provided written notice of the exercise of this option is delivered to the
Trust not less than 180 days prior to the end of the Initial Term of this
Agreement.
3. Provided that (i) the Trust in its sole discretion
has determined to permit the continued use of the Facility by a gaming vessel
following the Extension Term, and has so notified User, (ii) no Event of
Default shall have occurred and be continuing, and (iii) User shall have
exercised its option for the Extension Term, User shall have a right of first
refusal (the "Additional Option") to extend the Term for one (1) additional
five (5) year term beyond the Extension Term (the "Additional Term") on the
same terms as those that prevailed during the Extension Term, except as
provided in Paragraph 4(c) hereof. User shall have fifteen (15) days after
notice from the Trust within which to provide the Trust with written notice of
its intent to exercise the right of first refusal, subject to the terms set
forth in this subsection and in subsection 4(c) hereof. It is agreed that if
the Trust does not give User the notice contemplated by clause (i) of this
subsection, but, within five (5) years following the end of the Extension Term,
determines to permit the use of the Facility by a gaming vessel, the Trust
shall so notify User, and the Additional Option shall apply on the terms set
forth herein, with User having forty-five (45) days from the date of such
notice within which to exercise the Additional Option and with the Additional
Term commencing immediately upon User's notice of exercise.
4. FEES; LETTER OF CREDIT.
1. For the Initial Term, User shall pay the Trust fees
(the "Fees") for the use of the Facility in the following annual amounts:
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Contract Use Fee- Use Fee- Advertising Total
Year North Dock South Dock Fee Annual Fee
-------- ---------- ---------- ----------- ----------
1 $ 350,000 $ 25,000 $ 25,000 $ 400,000
2 $ 400,000 $ 25,000 $ 25,000 $ 450,000
3 $ 400,000 $ 25,000 $ 25,000 $ 450,000
4 $ 425,000 $ 25,000 $ 25,000 $ 475,000
5 $ 425,000 $ 25,000 $ 25,000 $ 475,000
TOTAL $2,250,000
User shall pay One Hundred Fifty Thousand Dollars ($150,000) (the "Initial
Payment") on the date of the approval of this Agreement (the "Approval Date")
by (i) the U. S. Army Corps of Engineers, (ii) the Miami City Commission and
(iii) the Oversight Committee established by the Governor of the State of
Florida. One Hundred Thousand Dollars ($100,000) of the Initial Payment shall
be applied to the annual fees for the first year of the Initial Term. The
remaining Fifty Thousand Dollars ($50,000) is in consideration for the deferral
of the Commencement Date to September 1, 1997, as provided in paragraph 3(a).
Except for the Initial Payment, User shall pay the annual Fees in advance on
the Commencement Date and on each anniversary of the Commencement Date, for the
subsequent year. In the event User desires to use more than $25,000 of annual
advertising, User shall pay for the additional advertising at the Trust's
prevailing rates.
2. On the or before September 1, 1997, User shall
furnish an irrevocable letter of credit (the "Letter of Credit"). The form of
the Letter of Credit shall be reasonably acceptable to the parties, and the
issuer of the Letter of Credit shall be reasonably acceptable to the Trust and
the City of Miami. The Letter of Credit shall be renewed annually during the
entire Initial Term and if User exercises the Extension Option and,
subsequently, the Additional Option, annually during the entire Extension Term
and the Additional Term, respectively. The Letter of Credit shall secure the
payment of an amount equal to Fees for the next two (2) Contract Years, or the
Fees remaining to be paid during the remainder of the Initial Term (or, during
the Extension Term or the Additional Term, for the remainder of the Extension
Term or the Additional Term, respectively), whichever is the lesser.
Simultaneously with User's exercise of its Extension Option or the Additional
Option, respectively, User shall furnish a new Letter of Credit meeting the
aforesaid requirements.
3. For the Extension Term, the annual Fees shall be
increased annually, effective on the first day of each Contract Year, by an
amount equal to four percent (4%) of the Fees payable during the preceding
Contract Year. For the Additional Term, the annual Fees shall be increased
annually, effective on the first day of the first Contract Year of the
Additional Term, by an amount equal to eight percent (8%) over the Fees during
the last year of the Extension Term, and on the first
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day of each subsequent Contract Year of the Additional Term, by an amount equal
to eight percent (8%) over the Fees during the preceding Contract Year of the
Additional Term..
4. In addition to the Fees, User shall pay the Trust
additional fees (the "Additional Fees") in the amount of $1.00 per passenger
carried on a gaming vessel from the Facility (the "Gaming Passengers"), in
excess of 200,000 passengers per Contract Year (excluding the "Charitable
Sails" as provided below). User shall furnish a statement, certified by User
to be accurate and correct, within ninety (90) days following the end of each
Contract Year, stating the number of Gaming Passengers carried during such
Contract Year, which statement shall be accompanied by payment of the
Additional Fees (if any are shown to be due). For the Extension Term, the $1
per passenger Additional Fee shall be increased annually, effective on the
first day of each Contract Year (including the Extension and Additional Terms),
by an amount equal to four percent (4%) of the per passenger Additional Fee
payable during the preceding Contract Year.
5. User shall keep full, complete and proper books,
records and accounts of the number of Gaming Passengers. The Trust and its
agents and employees shall have the right, during regular business hours, to
examine and inspect the records of User pertaining to the number of gaming
passengers carried from the Facility. Such records for each year shall be
retained at User's principal place of business for at least three (3) years
following such year.
5. CONDITION OF PREMISES, SEAWALL AND VESSELS. (a) User hereby
accepts the Facility "as is" in its present condition and agrees to maintain
the Facility and its vessels in a neat, clean, safe and orderly condition.
(b) User shall promptly repair any damage it causes to
the Facilities and/or to the seawall. All repairs shall be accomplished to
restore the Facilities or the seawall, as the case may be, to its condition on
the Commencement Date, subject to reasonable wear and tear.
6. SECURITY DEPOSIT. On the Commencement Date, User shall
deposit the sum of One Hundred Thousand Dollars ($100,000) (the "Security
Deposit"), to be held in an interest bearing account in a financial institution
reasonably acceptable to the parties. All interest accruing on the Security
Deposit shall be for the benefit of User. The Security Deposit shall secure
only the non-monetary Events of Default. If User does not cure such Event of
Default within thirty (30) days following notice to User (or, if such Event of
Default involves a safety or health hazard, within 72 hours following notice to
User, or if it poses a threat to life or limb, within 24 hours following notice
to User), the Trust shall have the right to apply such portion of the Security
Deposit as is necessary to cure any non- monetary Event of Default. In the
event the Trust does apply funds from the Security Deposit, the Trust shall
utilize such funds to remedy such Event of Default or to reimburse itself for
funds already expended to remedy such Event of Default. User shall replenish
the Security Deposit to its original amount within thirty (30) days following
notice of such drawdown. The Security Deposit shall remain on deposit during
the Initial Term and, if exercised, during the Extension Term and the
Additional Term, respectively. Upon termination of this Agreement, User
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shall be entitled to receive a refund of any portion of the Security Deposit
not applied pursuant to this Agreement.
7. DEFAULT PROVISION.
Default - The following events are hereby defined as "Events
of Default":
1. Failure - Payment of Money. Failure of User to pay
any Fees or Additional Fees or other amounts due hereunder when due, and the
continuance of such failure for a period of twenty-five (25) days after notice
thereof in writing.
In the event any annual payment of Fees is not paid to the Trust
within fifteen (15) days following the Anniversary Date, User covenants and
agrees to pay to the Trust interest on the amount thereof from the date such
payment became due and payable to the date of payment thereof, at the rate of
ten percent (10%) per annum (the "Default Rate").
2. Failure - Performance of Other Covenants, etc.
Failure of User to perform any of the other covenants, conditions and
agreements which are to be performed by User in this Agreement, and the
continuance of such failure for a period of thirty (30) days after notice
thereof in writing from the Trust to User, provided that if such default cannot
be cured within such thirty (30) day period as a result of "force majeure", no
Event of Default shall occur so long as User shall have commenced to cure such
default within said period and shall diligently and continuously use its best
efforts to cure such default. For this purpose, "force majeure" shall include
but is not limited to strikes, Acts of God, war, acts of public enemies, orders
from any properly constituted governmental authority, insurrections, riots, or
other civil disturbances, acts of nature, including floods, hurricanes,
tornadoes, or earthquakes, fires, storms and the like; or any other cause or
event not reasonably within the control of the disabled party.
3. Remedies for User's Default. (1) If any of the
Events of Default shall occur and continue beyond the applicable cure period,
the Trust may, upon thirty (30) days' prior written notice to User, give to
User a notice of termination of this Agreement. If such notice of termination
is given, this Agreement shall terminate upon the date specified in such notice
from the Trust to User, as fully and completely as if that date were the date
herein originally fixed for the expiration of the term of this Agreement, and
on the date so specified, User shall then quit and vacate the Facility and
surrender the same to the Trust. Except as expressly provided herein, the
termination of this Agreement shall not impair the Trust's right to draw on the
Letter of Credit to the extent of (i) the Fees payable during the remainder of
the Contract Year in which this Agreement was terminated and/or (ii) all other
amounts due and owing at the time of termination.
(2) In addition, the Trust may institute such proceedings as in its
opinion are necessary to cure such Event of Default and/or to compensate the
Trust for damages resulting from such Event of Default.
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(3) Upon the termination of this Agreement, all rights and interest
of User in and to the Facility shall cease and terminate and the Trust may
apply all sums paid to it by User under this Agreement to the balance owing to
the Trust.
(4) If:
(a) any of the monetary Events of Default shall occur and
continue beyond the applicable cure period; or
(b) User is adjudicated a bankrupt, or User institutes any
proceedings under any federal or state insolvency or bankruptcy law as
the same now exists or under any amendment thereof which may hereafter
be enacted, or under any other act relating to the subject of
bankruptcy wherein User seeks to be adjudicated a bankrupt, or to be
discharged of its debts, or to effect a plan of liquidation,
composition or reorganization, or should any involuntary proceedings
be filed against User under any such insolvency or bankruptcy law (and
such proceeding not be removed within sixty (60) days thereafter),
the Trust may draw on the Letter of Credit up to the full amount of the Letter
of Credit. The amount so drawn shall be applied to the payment of all Fees and
other amounts then due and owing by User hereunder (and shall be treated as
payment of such amounts by User, curing any monetary default to the extent so
applied).
8. ADVERTISING; SIGNAGE. (a) User shall be permitted to
advertise on the Park's marquee during the Term of this Agreement. This shall
be the only location in the Park in which User is permitted to advertise. User
shall pay an Advertising Fee for advertising at the rate set forth in Exhibit C
hereto, which is the Trust's prevailing market rate, provided that User shall
not be required to pay for the first $25,000 per year of advertising.
(b) User shall be permitted to erect and maintain signage
on User's ticketing facilities and protective canopies. The Trust shall have
the right to approve all signage as well as the exterior appearance of the
vessels, which approval shall not be unreasonably withheld or delayed. All
such signage shall comply with applicable municipal codes.
9. COOPERATION IN APPLICATIONS. User shall pursue all
governmental approvals required to construct, use and occupy the Facility,
including but not limited to approvals from the City of Miami, Dade County,
Army Corps of Engineers, State of Florida and DERM (the "Approvals") and all
easements and rights of way (the "Easements") required to provide the necessary
utilities and access to the Facility. Such actions shall be conducted at
User's sole cost and expense. User will promptly deliver to the Trust copies
of any submittals and written correspondence between User and the governmental
entities and other entities or their respective consultants with respect to the
Approvals and the Easements. The Trust agrees to reasonably cooperate with
User in connection with the Approvals and the Easements, which cooperation
shall include, without limitation, the
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prompt execution by the Trust of all necessary documents, including, without
limitation, applications for such Approvals and Easements.
10. CHARITABLE CRUISES.
1. User shall provide the Trust with the gross revenues
from four (4) sails each Contract Year for cruises for the benefit of the
Trust, provided that (i) the Trust shall not receive the merchandising and
gaming revenues, and (ii) the Trust shall not receive the bar revenues unless,
at its option, it elects to staff the bar and provide all alcoholic beverages
and supplies served at the bar during such cruises. Entertainment and food
shall be provided by User at its expense. These sails are herein called
"Charitable Sails".
2. User shall provide the Trust with two (2) community
sails each Contract Year for cruises for the benefit of community or charitable
organizations selected by the Trust, provided that the Trust shall not receive
the merchandising, gaming and bar revenues. Entertainment, hot dogs and soft
drinks shall be provided by User at its expense. These sails are herein called
"Community Sails".
3. User shall collect the sales tax during the
Charitable Sails and remit same to the Department of Revenue on behalf of the
Trust.
4. The Trust shall coordinate the dates of the
Charitable Sails and the Community Sails with User at least ninety (90) days
prior to the event. No Charitable Sails or Community Sails shall take place on
any national holidays or on a Friday, Saturday or Sunday, except that in each
Contract Year, one Charitable Sail or Community Sail may take place on a
Friday or a Sunday.
5. Revenues shall not include any revenues from gaming or
gift shop sales.
6. All promotional materials disseminated by the Trust
with respect to the Charitable Sails and Community Sails shall state that such
sails have been made possible by a grant from User.
7. User shall pay the reasonable out of pocket
promotional expenses in connection with the Charitable Sails, not to exceed the
lesser of five percent (5%) of the anticipated revenues from such Charitable
Sails or $5,000 per Charitable Sail.
11. APPROVAL RIGHTS.
1. All signage and capital improvements with respect to
the Park and the Facility shall be subject to the approval of the Trust and of
its designated architect, Xxxxxx Xxxxxxxx or other designated architect (the
"Trust Architect").
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2. User shall pay the reasonable fees of the Trust
Architect in connection with this review, provided that such fees shall not
exceed $5,000 for its review of the signage and capital improvements initially
proposed.
12. CAPITAL IMPROVEMENTS.
1. Subject to the approvals required by the Trust and
the Trust Architect, User may construct an all-weather structure on the Docks
or the Adjacent Land that will serve as a ticketing and embarkation facility.
2. User shall pay all costs of the capital improvements
contemplated hereby.
3. All capital improvements which are so affixed to the
land as not to be removable without permanent damage ("Permanent Improvements")
shall become the property of the Trust. All other improvements shall remain
the property of User. User shall repair all damage resulting from the removal
of any of the improvements which User is permitted to remove hereunder.
4. User shall not suffer or permit any mechanics' liens
or other liens to be filed against the Facility or the Park by reason of any
work, labor, services, or materials supplied or claimed to have been supplied
to User. If any such lien is recorded against the Facility or the Park, User
must promptly notify the Trust in writing of its existence, and must either
cause it to be removed or purchase a bond acceptable to the Trust against which
the lien will attach in lieu of the Facility or the Park. If User in good
faith desires to contest the lien, User may do so, but User must indemnify and
save the Trust harmless from all liability for damages occasioned thereby and
must, in the event of a judgment of foreclosure on the lien, cause it to be
discharged and removed prior to the execution of the judgment.
13. PERSONAL SERVICE CONTRACT. This Agreement has been entered
into by the Trust, in part, in reliance upon the successful business experience
and business reputation of Xxxxx X. Xxx ("Xxx"), who is the founder, president
and controlling stockholder of Xxx Equity Group, Inc, a Florida corporation.
14. TRANSFER OF CONTROLLING INTERESTS IN USER. (a) Without the
Trust's prior written approval, User shall not transfer more than fifteen
percent (15%) of its interest in User. This percentage limit shall apply
cumulatively, whether to a single transaction or a series of transactions. In
no event shall User transfer its controlling interest in User without the
Trust's prior written approval, which shall not be unreasonably withheld or
delayed.
(b) Only a person or entity which is a "Qualified
Transferee" shall be entitled to hold any interest in User. A "Qualified
Transferee" shall mean any person who would qualify for the issuance of a
liquor license under either Section 561.15 of the Florida Statutes or its
equivalent.
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(c) The Trust shall have the right to impose a reasonable
administration fee for its actual cost of processing any request for the
Trust's consent hereunder.
(d) The Trust shall not withhold or delay its approval
(where its approval is required) of a person or entity which satisfies the
requirements of a Qualified Transferee.
(e) For this purpose, the issuance of new interests in
User shall be treated in the same manner as transfers of interests, provided
that in the event interests in User are offered pursuant to a public offering,
holders of less than five percent (5%) of the interest in User shall not be
required to be Qualified Transferees.
(f) Whether or not the Trust's approval is required
hereunder, User shall be required to disclose to the Trust all transfers of
interests in User and new issues of interests in User within thirty (30) days
following such transfer or new issue.
15. SCHEMATICS OF PROPOSED IMPROVEMENTS. The Site Plan attached
hereto as Exhibit B includes schematics of the improvements proposed by User,
showing traffic flow for docking, provisioning, embarking and disembarking of
passengers.
16. TRANSFER AND ASSIGNMENT. User shall not transfer or assign
its interests hereunder to any person other than a Qualified Transferee.
However, this provision shall not prohibit the assignment of this Agreement as
a result of a merger or consolidation, provided that Xxx is the owner of a
controlling interest and of a majority of the outstanding shares of capital
stock of the successor entity and that User discloses the identity of each
holder of FIVE PERCENT (5%) or more of the outstanding shares of capital stock
of the successor entity. In any event, any transferee must agree in writing
to be bound by the terms of this Agreement.
17. APPROVAL OF VESSELS. The Trust shall have the right to
approve the vessels docked by User at the Facility, which approval, so long as
the vessel does not exceed 260 feet in length, shall not be unreasonably
withheld or delayed. The Trust confirms that it has approved the "Bayfront
Princess", a 230 foot yacht currently under construction at Leevac Shipyards in
Jennings, Louisiana. User shall only have the right to operate one gaming
vessel from the North Dock. User shall not be prohibited from docking other
non-gaming vessels from the North Dock so long as they do not dock there
overnight.
18. LIMITATION OF ACTIVITIES AT FACILITY. No painting of the
vessel, heavy maintenance or fueling shall occur at the Facility.
19. SECURITY. User shall take such steps as it considers prudent
with respect to the provision of security for User's customers and invitees who
approach and leave the Park and who travel the route between the North and
South Docks as shown in the Site Plan. User can propose improvements to provide
a safer environment at User's expense. However, User shall have no
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responsibility with respect to security elsewhere in the Park but, at its own
expense, shall have the right to provide additional security in the Park. User
acknowledges that the only vehicular access within the Park is over the road
shared by the Park with Bayside, and that User will need to coordinate with the
Bayside security guard before bringing vehicles within the Park. This
agreement is for the exclusive benefit of the parties hereto and nothing herein
shall create any rights in favor of any other persons.
20. HIRING OF PERSONNEL. All hiring of personnel shall comply
with the City's goals as to local preferences and minority composition.
21. MINORITY EMPLOYMENT. User shall comply with the City of
Miami's Minority and Women Business Affairs and Procurement Programs.
22. HOURS OF OPERATION. User intends to operate two cruises
sailing daily Sunday through Thursday, from 12:00 PM to 5:00 PM, and from 6:30
PM to midnight, and three cruises sailing on Friday and Saturday where the
night cruise would return after midnight. Hours of operation shall be subject
to business and weather conditions and may vary on a daily basis. Significant
changes in User's schedule shall be subject to the Trust's approval, which
shall not be unreasonably withheld or delayed. The Trust shall permit access
to the Facility on the part of User or its employees, customers or other
invitees at all such times, except during hurricane and other emergency
situations. User acknowledges that there may be approximately 10 Significant
Park Events (as hereinafter defined) per year, and that there may be over
100,000 people attending certain of such events.
23. TAXES AND ASSESSMENTS. At User's request, the Trust, as owner
of the Park, shall execute an application for exemption from real property
taxes and assessments, if any. In the event that the Facility becomes taxable
or assessable, and an application for exemption as provided above is denied,
User shall be liable for said taxes and assessments.
24. PROVISIONING OF VESSELS. Provisioning of the vessels shall
occur between the hours of 12 midnight to 8:00 AM, except (a) on Friday,
Saturday and Sunday nights and nights of "Significant Park Events", during
which provisioning shall occur between the hours of 2:00 AM and 8:00 AM, and
(b) with respect to perishable goods, which may have to be delivered shortly
prior to cruise departure times. "Significant Park Events" means the
occasional community- wide events held at the Park. The Trust shall give User
at least 60 days' prior written notice of each Significant Park Event. User
acknowledges that there may be approximately 10 Significant Park Events per
year, and that there may be over 100,000 people attending certain of such
events.
25. PARKING. User shall identify available parking for its
customers and employees, and intends to use off-site parking and to provide
shuttle and ferry services. User acknowledges that it will not receive more
than 2 parking spaces outside the Park office or at another location in the
Park.
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In the event a parking facility is constructed in the future in or under the
Park, User shall have the same rights to such parking as the general public.
26. UTILITIES. User shall be responsible for the cost of bringing
electric, telephone and water and sewer service to the Facility. To the extent
such are within its control, the Trust shall grant all easements required by
the utility services in connection with the installation and maintenance of
such service within the Park. The location and design of the electric,
telephone and water and sewer facilities and of such easements shall be subject
to the approval of the Trust and the Trust Architect, which shall not be
unreasonably withheld or delayed. User acknowledges the existence of an
easement which underlies the Park.
27. VALIDITY OF RIGHTS GRANTED HEREUNDER. The Trust represents
and warrants that it has the right to enter into this Agreement and, so long as
no Event of Default shall exist, to grant the rights granted hereunder, and
covenants that User shall be entitled to the exclusive right to occupy the
Facility, provided that if any person shall successfully challenge the Trust's
right to permit User to use the South Dock in accordance with this Agreement,
the Trust shall not be in default of its obligations hereunder, but the Fees
shall be reduced by $25,000 per Contract Year. In any case, the Trust shall
vigorously defend against any such challenge. User acknowledges that its use
of the Park is in common with Park events and with all other persons entitled
to use the Park. User acknowledges that there may be approximately 10
Significant Park Events per year, and that there may be over 100,000 people
attending certain of such events. User acknowledges that this covenant of
"quiet enjoyment" does not suggest that the Park shall be quiet during certain
of the Significant Park Events.
28. INSURANCE; INDEMNIFICATION.
1. User shall provide General Liability Insurance
(including liquor liability insurance) covering the Park and the Facility with
respect to User's use thereof by either its agents, employees, crew members,
independent contractors, invitees or passengers, to protect against all claims
for personal injury, death or property damage. The limits of said insurance
for personal injury or death shall be not less than $1,000,000 per
person/$2,000,000 per occurrence. The limits of said insurance for property
damage shall not be less than $500,000 per occurrence. The policy or policies
providing said insurance shall name the "City of Miami," the Trust, the sponsor
of the Amphitheater (currently AT&T), and the "Army Corps of Engineers" as
"Additional Insureds," shall contain a waiver of subrogation in favor of said
"Additional Insureds", and shall provide for thirty days notice to said
"Additional Insureds" in the event of cancellation, modification by change in
coverage, or non-renewal. User shall furnish to the Trust and to the City of
Miami Risk Management Department, at 000 XX 0xx Xxxxxx, Xxxxx Xxxxx, Xxxxx, XX
00000, Certificates of Insurance showing all coverages and additional insureds
no later than August 1, 1997, and thereafter copies of any and all of said
policies immediately upon their becoming available.
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2. The Trust shall provide General Liability Insurance
covering the Park and the Trust's use thereof against claims for personal
injury or death and property damage occurring upon, in or about the Park, such
insurance to afford protection to the limit of not less than $1,000,000 in
respect of injury or death to any number of persons arising out of any one
occurrence and such insurance against property damage to afford protection to
the limit of not less than $2,000,000 in respect of injury or death to any
number of persons arising out of any one occurrence and such insurance against
property damage to afford protection to the limit of not less than $500,000 in
respect of any instance of property damage. User is to be named "Additional
Insured" on all policies, provided that User shall pay the cost of being so
named (the current annual cost being approximately $6,400). The Trust shall
furnish the appropriate insurance certificates no later than August 1, 1997.
3. User hereby indemnifies and agrees to defend the
Trust and the members of the Board of Trustees of the Trust for all damages
sustained by the Trust as a result of any personal injury or death in the Park
or the Facility which results from the negligence or wilful misconduct of User.
4. The Trust hereby indemnifies User for all damages
sustained by the User as a result of any personal injury or death in the Park
or the Facility which results from the negligence or wilful misconduct of the
Trust, provided that this indemnification shall be limited to the extent of the
Trust's limited waiver of sovereign immunity as provided in Section 768.28 of
the Florida Statutes.
29. COMPLIANCE WITH LAW. User shall comply with all Federal,
State and County and local statutes, laws, rules and regulations, and shall, at
its sole expense, obtain all required licenses and permits.
30. HURRICANE PREPAREDNESS. User shall comply with City of Miami
requirements regarding hurricanes, as the same may be amended from time to
time.
31. INABILITY TO USE FACILITY. If, as a result of hurricane or
other casualty beyond User's reasonable control, User is not able to use the
Facility, there shall be no abatement of the Fees, provided that the Term shall
be extended for an equivalent period, and User shall not be required to pay any
Fees for such extension period.
32. TERMINATION RIGHTS. User shall have the right terminate this
Agreement on thirty (30) days' written notice to the Trust if, because of
governmental action, User is not legally permitted to operate an offshore
gaming vessel. If, because of governmental action, casino gaming becomes legal
in the State of Florida and User's passenger count declines to less than eighty
percent (80%) of the passenger count in the prior Contract Year, User shall
have the right to negotiate a just termination fee for the right to terminate
this Agreement, which termination fee will not be less than
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one year's Fees. User's obligation to pay any termination fee so agreed upon
shall be secured by the Letter of Credit.
33. EXCLUSIVITY. Provided that no Event of Default exists
hereunder, User shall have the exclusive right to operate an offshore gaming
vessel from docks or land controlled by the Trust, as shown in the Site Plan
attached hereto as Exhibit "B".
34. RELATIONSHIP OF PARTIES. This Agreement shall not be deemed
or construed to create any agency relationship, partnership, or joint venture
between the Trust and User.
35. NOTICES. Unless otherwise provided herein to the contrary,
all notices required under this Agreement shall be deemed to be given when
received either by hand-delivery (with receipt therefor) or mailed by
registered or certified mail, postage prepaid, return receipt requested and if
addressed:
AS TO USER:
-----------
Xxxxx X. Xxx
Bayfront Ventures
Suite 3400
One Biscayne Xxxxx
Xxx Xxxxx Xxxxxxxx Xxxx.
Xxxxx, XX 00000
WITH A COPY TO:
---------------
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
c/o Xxxxxxxx X. Xxxxxxxxxx
One Biscayne Tower
Two South Biscayne Blvd.
Suite 3400
Xxxxx, XX 00000
AS TO THE TRUST:
----------------
Xxx Xxxx Xxxx
Executive Director & General Manager
000 X. Xxxxxxxx Xxxx.
Xxxxx, XX 00000
WITH A COPY TO:
---------------
Commissioner X.X. Xxxxxxx
Chairperson
City of Miami/City Hall
0000 Xxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
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36. ENTIRE AGREEMENT/AMENDMENT. This Agreement constitutes the
sole and entire agreement between the parties hereto; no alteration, amendments
or modifications shall be valid unless executed by an instrument in writing
signed by all parties.
37. APPROVAL BY EMERGENCY FINANCIAL OVERSIGHT BOARD. The State of
Florida has appointed an Emergency Financial Oversight Board (the "Oversight
Board") which is empowered to review and approve all pending City of Miami
contracts. As a result, contracts shall not be binding on the City until such
time as they have been approved by the Oversight Board. Execution of this
Agreement by the City Manager shall constitute evidence of its approval by the
Oversight Board.
38. PUBLIC RECORDS. User understands that the public shall have
access, at all reasonable times, to all documents and information pertaining to
city contracts, subject to the provisions of Chapter 1198, Florida Statutes,
and agrees to allow access by the City and the public to all documents subject
to disclosure under applicable law.
39. ADDITIONAL PROVISIONS REQUIRED BY ARMY CORPS OF ENGINEERS. At
the request of the U.S. Army Corps of Engineers (the "Army"), the following
additional provisions have been added:
(a) Advertising of Alcoholic Beverages Outside of the Vessels, No
advertising of alcoholic beverages shall be permitted on the
Facility outside of the Vessels, provided that this shall not
prohibit advertising on the exterior surface of the Vessels.
(b) Indemnification. User shall hold the United States harmless
from any and all claims for damages to property or injuries to
persons arising out of the rights and privileges granted to
User herein, not including damages due to the fault of
negligence of the United States or its contractors.
40. GOVERNING LAW. This Agreement shall be construed according to
the laws of the State of Florida, to the extent such laws do not conflict with
Federal statutes, and venue shall be in Dade County.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Witnesses: BAYFRONT PARK MANAGEMENT
TRUST
By:
-------------------------------
Name: Xxx Xxxx Xxxx
--------------------------- Executive Director & General Manager
Name:
---------------------------
BAYFRONT VENTURES
d/b/a The Bayfront Princess,
a Florida joint venture
By: XXX EQUITY GROUP, INC.
a Florida corporation
By:
------------------------
Xxxxx X. Xxx, President
By: GOLDCOAST ENTERTAINMENT
CRUISES, INC., a Florida
corporation
By:
-----------------------
Xxxxx Xxxxxxxx, Vice
President
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APPROVAL OF THE CITY OF MIAMI
THE CITY OF MIAMI,
a municipal corporation of
Witnesses: the State of Florida
By:
-------------------------------------
Xxxxxx Xxxxxxx, City Manager
Name:
----------------------------
Name:
----------------------------
ATTEST:
By:
------------------------------
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By: By:
------------------------------ ---------------------------------
Xxxxx X. Xxxxxxxxxx A. Xxxxx Xxxxx, III
Risk Management Administrator City Attorney
Department of General Services
Administration
EXHIBITS:
A - Army Lease
B - Site Plan
C - Schedule of Advertising Fees
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STATE OF )
-------------
) SS:
COUNTY OF
------------ )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1997 by Xxxxx X. Xxx, as President of Xxx Equity Group, Inc.,
on behalf of the corporation. He is personally known to me.
------------------------------------
Notary Public
State of
--------------
Print Name:
-------------------------
My Commission Expires:
(SEAL)
STATE OF FLORIDA )
) SS:
COUNTY OF
---------------------)
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1997 by Xxxxx Xxxxxxxx, as Vice President of Goldcoast
Entertainment Cruises, Inc., on behalf of the corporation. He is personally
known to me.
-----------------------------------
Notary Public
State of Florida
--------------
Print Name:
------------------------
My Commission Expires:
(SEAL)
17
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STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1997 by Xxxxxx Xxxxxxx, as City Manager of The City of Miami,
on behalf of the corporation. He is personally known to me.
---------------------------------------
Notary Public
State of Florida
Print Name:
----------------------------
My Commission Expires:
(SEAL)
