COIN-OPERATED VIEWER AGREEMENT - CLEARWATER MUNICIPAL MARINA
It:
THE TOWER OPTICAL COMPANY, INC.
COIN-OPERATED VIEWER AGREEMENT
THIS Agreement is made and entered into this _~d2.Y o~
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 the Clearwater Municipal Marina; and
WHEREAS, TOWER OPTICAL desires to install coin-operated viewers
throughout such premises; and
WHEREAS, CITY desires to have Marina 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 shall provide two (2) Tower Optical coin-operated viewers for
installation at sites on the real property belonging to CITY in the City of Clearwater,
County of {>\ "c, \\ th 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 \~ day of ~,,~ ' 2008 and
shall continue until terminated as described in Section 7.
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 ofthe
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 two (2) 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 ...\'" ~ 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.
'~~ '
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 oftermination.
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 Pin ell as 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:
If to 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
'.~ . ,"
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 ofthe 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, INC.
CITY OF CLEARWATER
MARINE & AVIATION DEPT.
MUNICIP AL MARINA
:::~~mn~~;Z~
Date: G JJ..:!J /0 J'
~l}\~~ DEBORAH S. LUlZ
i::~~ Commission DO 710915
, . J Expires September 3, 2011
. Ill' Bonded11uuT~FIIn--"""701'
'. .
Signature page for
The Tower Optical Company, Inc. Coin-Operated Viewer Agreement
For Marina location
Countersigned: CITY OF CLEARWATER, FLORIDA
:::f~t(~y
~ V. Hibbard
Mayor
~~~V 6~-~rL?
-...., .. --- .........
William B. Horne II
City Manager
Attest:
Ca . Soto
Assistant City Attorney
~~