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COIN-OPERATED VIEWER AGREEMENT - PIER 60 1 \~ THE TOWER OPTICAL COMPANY, INC. COIN-OPERA TED VIEWER AGREEMENT II~ ~ THIS Agreement is made and entered into this ~ day of ~, 2008, by and between TOWER OPTICAL COMPANY, a corporation organized under the laws of the State of Connecticut, 275 East Avenue, Norwalk, Connecticut 06855, herein called "TOWER OPTICAL," and the City of Clearwater, a Florida Municipal Corporation, Marine and Aviation Department, 25 Causeway Boulevard, Clearwater, Florida 33767, herein called "CITY." WITNESSETH: WHEREAS, CITY has ownership of and control over the use of the property known as Pier 60; and WHEREAS, TOWER OPTICAL desires to install coin-operated viewers throughout such premises; and WHEREAS, CITY desires to have Pier 60 visitors utilize the coin-operated viewers to see the landscape of the area around Marina; and WHEREAS, CITY desires to equally share in the profits derived from the use of coin-operated viewers by granting TOWER OPTICAL a license to place such viewers on CITY property; NOW, THEREFORE, in consideration for the use of the Municipal Marina premises and mutual covenants herein contained, CITY and TOWER OPTICAL understand and agree to the following: 1. EQUIPMENT TOWER OPTICAL shan provide eight (8) Tower Optical coin-operated viewers for installation at sites on the real property belonging to CITY in the City of Clearwater, County of P_c. ~ and State ofFL. TOWER OPTICAL is and shall remain the sole owner of all viewers installed under this Agreement. Designation of coin-operated viewer sites shall be at the sole discretion of CITY, and any reasonable request, made in writing and addressed to the appropriate point of contact, to change a viewer site shall not be unreasonably withheld by the CITY. Any modification in the quantity of coin- operated viewers relating to this Agreement shall be in writing and become binding on this Agreement as an amendment. " 2. TERM The term of this Agreement shall begin on the \d+r day of _~ shall continue until terminated as described in Section 7. , 2008 and 3. FINANCIAL PROVISIONS CITY agrees to collect all monies from said viewers on a regularly scheduled basis and, by the 10th of each month following collection, shall forward, by regular postal service to the address listed in paragraph 9 of this Agreement, such sum or sums of money as shall represent the collections made by CITY, less fifty percent (50%) during the term provided for herein, which said sums of money CITY shall retain as a license fee for use of said real property and/or services in the collection of said monies. CITY shall include a statement indicating meter readings and revenues received with each payment. Sales taxes levied by City, County or State on gross receipts from viewers installed under this Agreement shall be paid by City, as collector and remitter of monies. As operator of the coin-operated viewers, CITY is responsible for procurement and payment of the Annual Amusement Machine Certificate, as required by the Florida Department of Revenue. TOWER OPTICAL shall be responsible for any and all freight charges associated with the delivery and return of the eight (8) viewers currently installed. However, freight charges associated with the delivery and return of any additional viewers requested by the City shall be shared equally by Tower Optical and the City. 4. EXCLUSIVITY TOWER OPTICAL shall have exclusive right to the operation of binocular or telescopic viewers operated by coin on the property described herein. 5. LIABILITY CITY shall notify Tower Optical in the event any viewer and/or installation covered under this Agreement becomes or is deemed unsafe for public use. TOWER OPTICAL shall assume all risks of damage, theft, pilferage, and vandalism, and CITY shall not be held responsible for any damage to the said viewers while the same are installed on the property described herein, so long as the damage is not caused by negligence or intentional misconduct of CITY. TOWER OPTICAL shall defend, indemnify, save and hold CITY harmless from any and all claims, suits, judgments and liability for death, personal injury, bodily injury, or property damage arising directly or indirectly from any performance under this Agreement by its employees, subcontractors, or assigns, including legal fees, court costs or other legal expenses. TOWER OPTICAL shall, at its expense, secure and provide to the CITY, prior to beginning performance under this Agreement, all insurance as required. Each party agrees to indemnify the other, its respective officers and employees from claims of losses, damages, and expenses (including, but not limited to, court costs and reasonable attorney fees) asserted by third parties against the indemnified party (the party claiming indemnification under this section) for negligent acts and omissions directly and proximately caused by the indemnifying party, its officers, agents, employees or authorized representatives. However, this provision does not constitute a waiver of CITY'S sovereign immunity under Section 768.28, Florida Statutes, nor does it extend CITY'S liability beyond the limits established in Section 768.28, Florida Statutes. The party claiming indemnification (the indemnified party)under this section shall promptly notify the other party of any such claim. The indemnifying party shall have the right to control the defense of the claim including the right, with the written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned, or delayed) to compromise or settle such claim. The indemnified party shall participate in such defense if requested to do so by the indemnifying party and shall be reimbursed for its reasonable direct out-of-pocket expenses incurred as a result of such participation. In no event shall CITY be liable to TOWER OPTICAL for special, consequential or indirect damages, including, without limitation, loss of anticipated profits, business opportunity or goodwill. 6. SERVICE TOWER OPTICAL officers and employees, or duly appointed agents, shall obtain consent, utilizing either verbal, written or other communication methods, prior to accessing the property described herein for the purpose of installing and/or removing its viewers, and/or collecting, servicing, repairing and maintaining the same. Service and repair of the coin-operated viewers shall be the sole responsibility of TOWER OPTICAL. TOWER OPTICAL shall take appropriate steps to repair and service coin-operated viewers within sixty (60) days after having been given notice by CITY of a viewer in need of repairs and/or servicing. Failure to repair a coin-operated viewer within the aforementioned time specified shall place TOWER OPTICAL in breach of this agreement. 7. TERMINATION If at any time either party shall breach any of its obligations under this Agreement, and shall fail to correct the breach within ten (10) days thereof, the other party may terminate this agreement upon written notice by registered mail to the breaching party. Unless terminated due to a breach as provided above, this Agreement will remain in full force and effect until the ~ day of j-" ." 2011, after which either party may terminate the agreement without cause by giving the other party written notice by registered mail at least 30 days before the desired termination date. ,.11 . . ' In addition to all other rights or remedies provided for in this Agreement or by law, this Agreement shall automatically terminate in the event that (a) a party hereto makes an assignment of this Agreement without the prior written consent of the other party, (b) a party hereto admits, in writing, its inability to pay debts as they become due, (c) a trustee, custodian or receiver is appointed by any such court with respect to a party hereto or any substantial part of such party's assets, or (d) an action is taken by or against a party under any bankruptcy or insolvency laws or laws relating to the relief of debtors, including the Federal Bankruptcy Act, and such action is not dismissed within thirty (30) days. Termination of this Agreement shall not relieve either party of its obligation to divide the revenues obtained from the coin-operated viewers until the point of termination. 8. ATTORNEY'S FEES In the event either party seeks to enforce this Agreement or to interpret any provision of this Agreement, by law or through attorneys-at-law, or under advice therefrom, the parties agree that the prevailing party is entitled to recover reasonable attorney fees from the other party, in addition to any other relief that may be awarded. Moreover, any legal proceedings regarding this Agreement shall take place in the courts of Pine lias County, Florida, and the applicable law that shall apply to construction of this Agreement is that of the State of Florida. 9. NOTICE Any remittance or document in connection with the Agreement shall be sent via postal service with postage and fees prepaid to the appropriate address indicated in this section. However, any notice relating to this Agreement shall be sent via certified mail, return receipt requested: Ifto CITY, addressed to: Beverly Buyssee City of Clearwater, Marine and Aviation Dept. 25 Causeway Blvd. Clearwater, FL 33767 Copy addressed to: City of Clearwater City Attorney P.O. Box 4748 Clearwater, FL 33758-4748 If to TOWER OPTICAL, addressed to: The Tower Optical Company, Inc. P.O. Box 251 i" ' ..' South Norwalk, CT 06856-0251 10. INSURANCE TOWER OPTICAL shall furnish, pay for, and maintain during the life of the Agreement with CITY the following liability coverage: (a) Comprehensive General Liability insurance on an "occurrence" basis in an amount not less than $1,000,000.00 combined single limit Bodily Injury Liability and Property Damage Liability. (b) Florida Workers' Compensation Insurance applicable to TOWER OPTICAL'S employees, contractors, and subcontractors, including Employers' Liability. CITY shall be specifically included as an additional insured in the General Liability coverage described above. All insurance policies must be endorsed to provide CITY with thirty (30) days notice of policy cancellation or restriction. TOWER OPTICAL shall provide CITY with a certificate or certificates of insurance showing the existence of the coverage required. TOWER OPTICAL shall maintain this coverage with a current certificate or certificates of insurance throughout the term of the Agreement with CITY. When specifically requested by CITY in writing, TOWER OPTICAL shall provide CITY with certified copies of all insurance policies as required above. New certificates and new certified copies of policies if certified copies of policies have been requested, shall be provided to CITY whenever any policy is renewed, revised or obtained from other insurers. 11. ENTIRE AGREEMENT This Agreement constitutes the final and complete agreement of the parties concerning Tower Optical viewer installation as herein described. This Agreement may be changed only by written notification that is signed by both parties. THE TOWER OPTICAL COMPANY, INe. CITY OF CLEARWATER MARINE & A VIA TION DEPT. MUNICIP AL MARINA Signature '//;::~. ~ Printed Name ':Po ,- H. , - ':J-- Date: Co JJ...J /vi' Signature ~ l. _MS.t.. .a I Printed Name 3. W .~ ~l Date: \... \ 1-" ,,'6 .~~ DEBORAH S. LUTZ :W~*i ~ Commission DO 710915 . } Expires September 3, 2011 ..',' IIondedlllAlTIOJl'elMlnnaelllJO.3ll&.7018 . .' . . Signature page for The Tower Optical Company, Inc. Coin-Operated Viewer Agreement For Pier 60 location Countersigned: CITY OF CLEARWATER, FLORIDA ~;/~~y: ~~.~-:iL ~ V. Hibbard William B. Horne II Mayor City Manager Attest: ~Ff. Cynt E. Goudeau City rk Jj~..(J~ / Camilo A. Soto Assistant City Attorney