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HomeMy Public PortalAbout1995-19 THSP Associates, Ltd., Ocean Club Ltd. indemnification agreementRESOLUTION NO. 95-19 A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; AUTHORIZING THE VILLAGE MANAGER TO EXECUTE THE ATTACHED ACCESS AND INDEMNIFICATION AGREEMENT BETWEEN THE VILLAGE AND THSP ASSOCIATES LIMITED PARTNERSHIP III AND THE OCEAN CLUB LIMITED PARTNERSHIP; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village has requested the owner of the Key Biscayne Hotel and Villas property, THSP Associates Limited Partnership III and the Ocean Club Limited Partnership, to allow the Village to use said property to prepare, stage, produce and perform a Fourth of July fireworks display; and WHEREAS, the owner of the property is willing to allow the Village to prepare, stage, produce and perform the fireworks display from said property subject to conditions outlined in the attached "Access and Indemnification Agreement"; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE AS FOLLOWS: Section 1. That the Village Manager is hereby authorized to execute the attached Access and Indemnification Agreement between the Village and THSP Associates Limited Partnership III and the Ocean Club Limited Partnership. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 13th day of June , 1995. OR JOHN F. FESTA ATTEST: GUIDO H. I UANZO, JR., VILLAGE CLERK APPROVED AS TO -,ORM ��?1 LEGAL SUFFICIENCY: STEPHE \ J. H GE ATTORNEY ACCESS AND INDEMNIFICATION AGREEMENT THIS ACCESS AND INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into this day of June, 1995, by and between the VILLAGE OF KEY BISCAYNE, a municipal corporation created pursuant to the Constitution of the State of Florida and the Home Rule Charter of Metropolitan Dade County (the "Village") and THSP ASSOCIATES LIMITED PARTNERSHIP III, a Delaware limited partnership ("THSP") and THE OCEAN CLUB LIMITED PARTNERSHIP, an Illinois limited partnership (the "Ocean Club") (THSP and the Ocean Club are hereinafter collectively referred to as the "Owner"). RECITALS: THSP and the Ocean Club are the owners of fee simple title to contiguous parcels of certain real property located within the Village which together comprise the property commonly known as the Key Biscayne Hotel and Villas property (collectively, the "Property"). The Village has requested that the Owner allow the Village to use the Property to prepare, stage, produce and perform a Fourth of July fireworks display. The Village has contracted with Fireworks by Grucci, Inc. (the "Contractor") to prepare, stage, produce and perform the fireworks display. The Owner is willing to allow the Village and the Contractor to prepare, stage, produce and perform the fireworks display from the Property conditioned upon: (a) the Village indemnifying and holding the Owner harmless from and against any and all liabilities, claims, judgments and damages that may arise as a result of use of the Property pursuant to this Agreement; (b) the Village providing the Owner with certificates of insurance covering the Village and the Contractor (and naming the Owner as a Certificate Holder) for liability related thereto; and (c) the Village providing reasonable security intended to prevent injury to person(s) and/or property as a result of the fireworks display. The Village is willing to indemnify the Owner and to provide insurance and security as hereinafter set forth. NOW, THEREFORE, for the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The recitals set forth above are true and correct and are incorporated herein by this reference. 2. Owner hereby grants the Village the right to enter upon the Property and use that portion of the Property commonly referred to as the "Ocean Front" for the preparation, staging, production and performance of the fireworks display to be performed by Contractor on July 4, 1995 or July 5, 1995 (rain date) as determined by the Village. Access to the Property shall be limited to the Contractor's employees reasonably required to prepare, stage, produce and perform the fireworks display from the Ocean Front portion of the Property, police and fire personnel, private security forces, and such Village personnel required by the Village to perform its obligations under this Agreement and/or supervise the Contractor. The rights of access and use granted herein shall commence on July 2, 1995 and terminate on July 7, 1995. In connection with the access and use rights granted herein, the Village and Contractor are authorized to park their vehicles upon the Property as necessary to carry out the terms of this Agreement. 3. The Village shall return the Property to the Owner in substantially the same condition as the Property existed prior to July 2, 1995 including, but not limited to, the removal of all debris, refuse and other items which may litter the Property as a result of the fireworks display. 4. The Village shall provide sufficient security to insure that members of the general public do not enter upon the Property, specifically the Ocean Front portion of the Property prior to, during or after the fireworks display. Security may be provided by private or public security or police. The Village shall deny members of the general public access to the Ocean Front portion of the Property from the Atlantic Ocean. 5. The Village does hereby agree to indemnify, defend, and hold harmless the Owner (its officers, directors, partners, shareholders, agents and employees) from and against any and all claims, damages, judgments, liabilities, fees, penalties, lawsuits or other actions, and costs and expenses which the Owner (its officers, directors, partners, shareholders, agents and employees) may suffer or incur or which may be asserted against any or all of them in connection with or resulting from (a) the Village's and/or Contractor's use of the Property for the preparation, staging, production and performance of the fireworks display or (b) members of the general public entering onto the Property for the fireworks display. This indemnity shall include, but not be limited to, claims for personal injury, property damage and any and all other claims for damages relating to said fireworks display resulting from actions of members of the general public occurring during the period of time the Village and/or Contractor have access to and use of use the Property. In addition, this indemnity, defense and hold harmless agreement shall include all attorneys' fees and costs incurred by the Owner in the defense of any such claims, whether incurred prior to or during litigation and shall cover the legal costs in all proceedings including but not limited to trial, appellate, bankruptcy or administrative proceedings. 6. The Village does hereby waive any claims that the Village may have against the Owner as a result of injury to persons or property relating to the fireworks display and the use of the Property therefor, including but not limited to, the rights of the Village to subrogation, contribution, or to claim contributory negligence. Owner shall have no liability to the Village for any claims for damages caused by Owner (its officers, directors, 2 partners, shareholder, agents and employees) relating to the Property or the fireworks display, except for gross negligence or willful misconduct of the Owner. 7. The Village has provided the Owner with a certificate of liability, automobile and workers' compensation insurance coverage naming Owner as the "Certificate Holder" and as an additional insured. The certificate certifies that the Village is insured in the amount up to Five Million Dollars ($5,000,000) combined single limit per occurrence for liability and automobile coverage and workers' compensation in the statutory amounts. The Village agrees that, to the extent authorized under Florida Statute §768.28(5) the Village will settle any claim or judgment rendered against it, if said claims are claims for which the Village has indemnified the Owner hereunder. This settlement obligation shall be limited to the maximum amount of insurance of the Village relating thereto (i.e., $5,000,000). The Village agrees to keep in full -force and effect the liability, automobile and workers' compensation insurance referenced in the certificate as such relates to the Owner and agrees to cause the Contractor to deliver to the Owner a certificate of insurance naming Owner as the Certificate Holder and as an additional insured under the Contractor's liability, automobile and workers' compensation insurance policy with limits of liability not less than Three Million Dollars ($3,000,000) for liability and automobile coverage and workers' compensation in the statutory amounts. Nothing contained in this Section 7 is intended to limit the provisions of Section 5 of this Agreement. 8. In the event it should become necessary for either of the parties hereto to employ legal counsel to enforce the provisions of this Agreement, the prevailing party in any litigation or proceeding shall be entitled to reimbursement for attorneys' fees and costs relating thereto including, but not limited to, attorneys' fees in trial, appellate, bankruptcy, administrative or other proceedings. 9. This Agreement shall be governed by the laws of the State of Florida without giving effect to conflicts of law rules. 10. The Village represents and warrants to the Owner that the Village has the authority to enter into and deliver this Agreement, and that once executed by the Village Manager, this Agreement is valid and binding against the Village in accordance with its terms. 11. THSP represents and warrants to the Village that (a) THSP is a limited partnership formed under the laws of •the State of Delaware and qualified to do business in the State of Florida, and (b) THSP III, Corp. is its general partner and is a corporation formed under the laws of the State of Delaware and qualified to do business in the State of Florida. THSP has the authority to enter into and deliver this Agreement and such has been authorized by all requisite partnership and corporate action. 12. The Ocean Club represents and warrants to the Village that (a) the Ocean Club is an Illinois limited partnership formed 3 under the laws of the State of Illinois and qualified to do business in the State of Florida and (b) The Ocean Club, Inc. is its general partner and is a corporation formed under the laws of the State of Illinois and qualified to do business in the State of Florida. The Ocean Club has the authority to enter into and deliver this Agreement and such has been authorized by all requisite partnership and corporate action. 13. No modification or amendment of this Agreement shall be of any force or effect unless in writing and signed by both the Village and Owner. 14. This Agreement may be executed in any number of counterparts, any one and all of which shall constitute the agreement of the parties and each of which shall be deemed an original. 15. This Agreement sets forth the entire agreement between Village and Owner relating to the subject matter herein, and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties, and there are no agreements, understandings, warranties, representations among the parties except as otherwise indicated herein. 16. Should any clause or provision of this Agreement be determined to be illegal, invalid or unenforceable under any present or future law by final judgment of a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby. It is the intention of the parties that if any such provision is held to be illegal, invalid or unenforceable, there will be added in lieu thereof a legal, valid and enforceable provision that is as similar as possible in terms to the illegal, invalid or unenforceable provision. 17. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials as of the day and year first above written. WITNE ' SE :: / r VILLAGE OF KEY BISCAYNE, a Florida municipal corporation Samuel Kiss iger A:ti l l age Manage W. McIntyre Street 71, Biscayne, Florida THSP ASSOCIATES LIMITED PARTNERSHIP III, a Delaware limited partnership Print Name: Name: 103001\firewk-acc.fin By: THSP III, Corp., a Delaware orp•rat ion, as geriera p- rt John A. Hinson Chief Operating Officer The Colonnade 169 Miracle Mile, Suite 200 Coral Gables, Florida A [CORPORATE Air] THE OCEAN CLUB LIMITED PARTNERSHIP, an Illinois limited partnership By: The Ocean Club, nc., an Illinois c• •ora'ion, as 1—a er j By: John Hinson Chief Operating Officer The Colonnade 169 Miracle Mile, Suite 200 Coral Gables, Floridtoo [CORPO SEALJ o. 5