Loading...
Contract 2021-025ACITY OF CLERMONT FACILITY USER AGREEMENT THIS AGREEMENT, made this 2-1 day of Try 1 , 20 21, between the City of Clermont, a Municipal Corporation of the State of Florida, (hereinafter referred to as the "CITY") and Clermont Sailing Center, Inc., whose address is 11001 Lake Katherine Circle, Clermont, Florida 34711 (hereinafter referred to as the "USER"). NOW THEREFORE, in consideration of the covenants and agreements herein contained, the parties agree as follows: 1. FACILITY: CITY agrees to permit USER to use that certain facility listed in Exhibit "A" attached hereto and incorporated herein hereinafter referred to as the "FACILITY" and in conjunction therewith, grants to USER the non-exclusive right to use the FACILITY for the limited purpose of storing USER's sail boats up to a maximum of twenty five (25) boats and for accessing Lake Mineola from the FACILITY. The means of, and days and times for, access to Lake Mineola from the FACILITY shall be subject to review, approval and change by CITY. The sail boats shall be stored in a location and in a manner as approved by CITY. USER shall pay to CITY any and all fees as set forth in Exhibit "A" and in accordance with the schedule set forth therein. USER expressly agrees and acknowledges that the rights granted herein are a license and shall not act as, be construed as or create leasehold or other property right for the benefit of USER in the FACILITY. 2. TERM OF AGREEMENT: The term of this Agreement ("TERM") shall commence on March 1, 2021 and continue for five (5) years. Thereafter this Agreement may be extended for an additional five (5) years as may be mutually agreed to by the Parties in writing. At least twelve (12) but no more than eighteen (18) months prior to the expiration of this Agreement, the parties will meet to discuss an extension to this Agreement and/or process related to transition of control to the City. 3. FEES: In consideration of the rights granted therein and in addition to all other duties and all other obligations contained herein of USER, USER shall pay to the CITY the sum of ONE HUNDRED ($100) DOLLARS per month for each month or portion thereof commencing on March 1, 2021 and continuing on the first day of each month thereafter through the Term of this Agreement. 4. UTILITIES. OTHER COSTS AND EXPENSES. CITY shall only be responsible for those costs as set forth in Exhibit "A" hereto and any and all costs related to USER's use of the FACILITY shall be the responsibility of USER. 5. INSURANCE. (a) USER shall, at USER's sole expense, at all time during the term of this Agreement (including any extension or renewal), maintain general comprehensive insurance for the protection and benefit of USER and its property. All policies of insurance shall insure the USER and name the CITY as the insured or additional insured against any and all claims, demands, actions and causes of action whatsoever for injuries received, by any individual, participant, guest, invitee agent or employee, or damage to the FACILITY, or any property of CITY or USER, related to the use of the FACILITY by USER. Such policies of insurance shall be in an amount of ONE MILLION DOLLARS ($1,000,000.00) per occurrence in an aggregate amount of TWO MILLION DOLLARS ($2,000,000.00) to cover the total aggregate of claims that may arise or to be claimed to have arisen against the CITY or USER, as aforesaid. (b). The originals of the aforementioned policies of insurance, or certificates of the issuance thereof, shall be delivered to the CITY as evidence of the compliance by the USER with the terms and provisions contained herein. Each of the said insurance policies shall be issued by a company or companies authorized to do business in the State of Florida and have an A.M. Best Company Rating of "A" or better and a Financial Size Category of "VII" or as otherwise approved by CITY, in its sole discretion. Should the USER fail to provide such insurance, the CITY may, but shall not be obligated to, procure the same and advance funds for the payment of the cost thereof for and on behalf of the USER and all such payments shall be considered as rent immediately due and shall be included in any lien for rent due and unpaid. The proof of insurance as provided herein, shall be delivered to CITY initially upon execution of the AGREEMENT and thereafter, within thirty (30) immediately following each renewal thereof. (c). If during the period which an insurance company is providing the coverage required by this AGREEMENT, an insurance company shall: 1) lose its Certificate of Authority, 2) no longer comply with any applicable Florida Law, or 3) fail to maintain the Best Rating and Financial Size Category, CITY shall, as soon as the USER has knowledge of any such circumstance, immediately notify the CITY and immediately replace the insurance coverage provided by the insurance company with a different insurance company meeting the requirements of this AGREEMENT. Until such time as the Tenant has replaced the unacceptable insurer with an insurer acceptable to CITY, the USER shall be deemed in default of this AGREEMENT. (d). The maintenance of insurance coverage as provided herein shall not be construed to limit nor have the effect of limiting USER's liability under the provision of any clause or paragraph contained in this AGREEMENT. Nor shall it be considered, construed or act as a waiver of City's sovereign immunity as provided by Florida Law. E. USE OF PREMISES. USER may use the FACILITY only for the purposes of storage Of boats lawfully titled in the name of USER. Nothing herein shall grant to USER the authority to permit the storage on the FACILITY of any boats not lawfully titled in the name of USER or active member of USER's club provided USER shall provide to CITY in advance: i) a copy of the boat title or registration showing the owner's names and ii) a hold harmless and indemnification agreement in favor of and in a form acceptable to CITY and executed by all owners. The storage of any other boats is specifically prohibited. USER covenants that it shall utilize the FACILITY in 2 compliance with all applicable Federal, State and City laws and regulations and all policies of CITY. USER shall not make any modifications of the FACILITY unless authorized in writing and approved by the CITY. USER may at USER's sole expense, place a storage building within the designated area as set forth in Exhibit "A". The storage building shall comply with all applicable laws, codes and regulations and shall be subject to the prior written approval of the CITY, which may be withheld for any reason. 7. USER'S OBLIGATIONS. (a) USER shall return the premises in as good of a condition as when USER took possession of the FACILITY; (b) USER shall utilize the FACILITY in a safe, proper and business -like fashion and meet any and all Florida State Statutes, regulations, local ordinances, policies and regulations of the City of Clermont, County of Lake and the State of Florida; (c) USER shall not destroy, deface, damage, impair or remove any part of the FACILITY or allow any other person to do so; (d) USER shall pay all Federal, State and local sales taxes applicable to the use of the FACILITY; (e) USER shall not use any signage or promotional materials of any kind, unless approved in advance by CITY; (f) USER agrees to comply with all rules, regulations and procedures as may be established by CITY with regard to the use of the FACILITY. (g) USER acknowledges that the area set forth in "Exhibit A" is located on the City's property and on the property of City of Clermont Waterfront Park in Clermont, Florida and that this Agreement does not include access to any other facilities owned or controlled by the City. (h) USER shall not permit usage by any other organization. (i) USER shall not hold any event without providing written notification to the Parks and Recreation Department. All events require the submittal of a special events application a minimum of sixty (60) days in advance. 0) USER is prohibited from the placement of buoys, lines or other structures without prior written approval from the Florida Department of Environmental Protection and a special event application a minimum of sixty (60) days in advance. 8. LIABILITY FOR DAMAGE. USER is responsible for any and all damage or injury to the FACILITY of whatever kind, occurring during the use of the FACILITY by USER, reasonable wear and tear excepted. 9. DEFAULT. The failure of USER to conform and comply with any term, or obligation imposed upon USER by this AGREEMENT, shall constitute a default of this AGREEMENT. In the event of default, CITY, without the necessity of providing USER with an opportunity to cure, may immediately terminate this AGREEMENT and pursue any all legal remedies available to it at law or in equity. In the event that CITY prevails, USER shall be responsible to CITY for attorney fees and court costs, at all levels including appeal. 10. CITY LIMITATION OF LIABILITY. The CITY shall not be responsible in any manner for any loss, damage to any property of USER, or that of any invitee or assignee of USER or injury to persons resulting, occurring on or about the FACILITY or related to the use of the FACILITY or by reason of any existing or future condition, defect, matter, thing, action or inaction, or for the acts, omissions or negligence of other persons on or related to the FACILITY. In no event and under no circumstances related to any matter contained herein or any act, action, inaction or omission of CITY, will CITY be responsible to USER or any third party for any consequential damages, including, but not limited to any loss of use, profits, or the like. 11. HOLD HARMLESS AND INDEMNIFICATION. USER agrees to indemnify, defend and hold CITY harmless from any and all claims and liability for losses of or damage to USER's property, or injuries to persons occurring in or about, or related to use of the FACILITY. 12. TERMINATION OF AGREEMENT. Either parry shall have the right, with or without cause, upon fifteen (15) days prior written notice to terminate this AGREEMENT. Upon termination of the Agreement as provided herein or for any other reason, USER shall vacate the FACILITY as of the effective date of the termination. USER shall remove all USER's items from the FACILITY, including the storage building, if applicable, and return the FACILITY to the condition it was in prior to the effective date of this Agreement, reasonable wear and tear excepted. 13. Notices. All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. USER: Clermont Sailing Center, Inc. 11001 Lake Katherine Circle Clermont, FL 34711 Attn.: Stacey D. Uptain CITY: City Manager City of Clermont 4 685 West Montrose Street Clermont, FL 34711 14. ASSIGNABILITY. This AGREEMENT, or the right conveyed herein, is not assignable in any manner by USER. CITY may, without USER's consent assign any and all rights and entitlement contained herein. 15. AMENDMENT. This AGREEMENT shall not be amended unless in writing and signed by both CITY and USER. 16. WAIVER. No waiver of any breach, failure to enforce a terms or covenant, of this AGREEMENT by CITY shall be considered a waiver of any other subsequent breach. The failure of CITY to insist upon compliance by USER with any obligation, or exercise any remedy, does not waive the right to do so in the event of a continuing or subsequent breach. 17. INVALIDITY OF PROVISIONS. The invalidity or unenforceability of any provision of this AGREEMENT will not affect the other provision and this AGREEMENT will continue in all respects as if the AGREEMENT omitted such invalid or unenforceable provisions. 18. CHOICE OF LAWNENUE. The laws of the State of Florida will govern this AGREEMENT and the duties and obligations stated within the AGREEMENT. Any cause of action to enforce the terms hereof shall be exclusively maintained in Lake County, Florida. USER acknowledges having read, understood and agreed to these provisions and having accepted a copy of this Agreement. IN WITNESS WHEREOF, the parties hereto have signed this Agreement this 2 t day of Signed, sealed and delivered in our presence. 5 CITY OF CLERMONT, FLORIDA BY: Susan Dauderis, Interim City Manager USER BY: Stacey D. Uptain, Director Exhibit "A" Ln Ln u 1 W cc 0 W Y Ro