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,
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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
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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.
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