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HomeMy WebLinkAbout2011-190 Indian River County Holman Stadium Use Agreement � ' m a ,o / / - < qo This Holman Stadium Use Agreement ( "Agreement " ) is made this b day of , 20111 by and between Indian River County Board of County Commissioners , a political subdivision of the State of Florida ( " County " ) and Every Dream Has A Price , Inc . , A Florida not-for- profit Corporation , 2179 10th Avenue , Vero Beach , FL 32060 ( " User Group " ) . BACKGROUND RECITALS A . The tJ �, er Group he s requested the rise of Holman Stadium facilities ( collectively referenced as " Stadium " ) under the terms and conditions set forth in the Indian River County Holman Stadium Use Guidelines , attached to this Agreement as Exhibit 1 and incorporated herein in its entirety by this reference and under the terms and conditions set forth in this Agreement . B . The County will allow the User Group to use the Stadium under the terms and conditions set forth in Exhibit 1 and under the terms and conditions set forth in this Agreement . NOW THEREFORE , for good and valuable consideration , the receipt and sufficiency of which is hereby acknowledged , and intending to be legally bound , the parties agree as follows : 1 . PERIOD OF USE . This Agreement shall be in force November 5th , 2011 , and includes all setup and clean up time . 2 . NUMBER OF PARTICIPANTS EXPECTED . ' User Group estimates that the number of participants expected at the event is from 1 , 000 up to seating capacity of 6 , 500 . 3 . DESCRIPTION OF EVENT . User Group states that the following is an accurate description of the event : A Celebrity vs . Government Baseball Game Fundraiser . 4 . INSURANCE . The minimum dollar amounts and types of insurance coverages required are set forth in Exhibit 2 attached hereto and incorporated herein in its entirety by this reference . 5 . FEES . The User Group agrees to pay all Stadium use charges as set forth in Exhibit I , including , without limitation , the charges set forth in paragraphs C , D , F , G , H , and I . Where the User Group uses the services of MiLB for parking attendants , ticket takers , security personnel , clean - up crews , or concession operations , the User Group acknowledges and agrees that the County shall cause MiLB : ( i ) to provide a written invoice for such services to the User , together with a courtesy copy to the County within ten ( 10 ) business days after the l conclusion of the event ; and ( ii ) to remit the net funds , if any , to the User Group . In addition , all costs for utilities and any other costs incurred by MiLB in connection with the User Group ' s use of the Stadium shall be set forth on the foregoing written invoice , and such costs shall also be deducted from the net funds , if any , and remitted to the User Group . Upon the County ' s receipt of the notice of invoice payments from MilB , the security deposit shall be returned to the User Group ; provided , however , that in the event the costs invoiced by MiLB exceed the funds available , the County shall have the right to use the seMrrity deposit for such costs . In addition , the User Group agrees to be solely responsible to pay any and all additional charges required for' the staging of the event . 6 . INDEMNIFICATION AND WAIVER OF CLAIMS . The User Group assumes all risks and agrees to indemnify fully and save and hold harmless the County , its commissioners , officers , employees , and agents ( hereinafter individually and collectively referenced as " Indemnified County Parties " ) , and MiLB , their respective owners , share holders , officers , employees , representatives , agents , heirs , successors , and assigns ( hereinafter individually and collectively referenced as " Indemnified MiLB Parties " ) against all claims , losses , damages , judgments , liabilities , accidents or injuries to person ( s ) or property , and causes of action , including reasonable attorney ' s fees and court costs , arising out of, or caused directly or indirectly , by the conduct , acts , omissions , negligence , or willful misconduct of any participant in the event , the User Group , its visitors , agents , and employees . The Indemnified County Parties , and the Indemnified MiLB Parties shall not be liable for damages to , or loss of , personal property sustained by the participants in the event , the User Group , its visitors , agents , employees , or any person claiming by or through the User Group or any of the foregoing , resulting from any fire , accident , occurrence , theft , or condition in or upon the Stadium , provided such are not due to the sole negligence or willful misconduct of the Indemnified County Parties or the Indemnified MiLB Parties . This indemnification paragraph shall survive the expiration or sooner termination of this Agreement . 7 . CANCELLATION . This Agreement is subject to cancellation by either the User Group or the County as set forth in Exhibit 1 . 8 . FACILITY UNAVAILABILITY DISCLAIMER . The County assumes no responsibility for circumstances that may require the closing of the Stadium facility due to conditions that would render it unfit for public usage due to inclement weather , state health department or other regulatory agencies requirements . In the event of such occurrence , it is the responsibility of the User Group to obtain alternative facilities and the County shall have no liability whatsoever to the User Group . 9 . GOVERNING LAW . The laws of the State of Florida shall govern this Agreement and any and all legal action shall be instituted in Indian River County for all state court matters and in the Southern District of Florida for all federal court matters . 10 . ENTIRETY OF AGREEMENT . The Agreement incorporates and includes all prior and contemporaneous negotiations , correspondence , conversations , agreements , or understandings applicable to the matters contained herein and the parties agree that there are no commitments , agreements , or understandings of any nature whatsoever concerning the subject matter of this Agreement that are not contained in this Agreement . No supplement , modification , or amendment to this Agreement shall be binding unless signed in writing by the County and the l_lser Group . 1 1 , SEVERABILITY . In the event that any of the provisions of this Agreement are deemed unenforceable , the enforceability of the remaining provisions of this Agreement shall not be affected . 12 . ASSIGNMENT . User Group shall not grant , assign , or otherwise convey to anyone any or all of its rights to use the Stadium hereunder without the prior written consent and approval of the County and MiLB . The User Group shall use the Stadium only in the manner contemplated in this Agreement . 13 , THIRD PARTY BENEFICIARY . No person other than MiLB , the County , the Indemnified County Parties , the Indemnified MiLB Parties , and the User Group , and the successors of the User Group shall have any rights whatsoever under this Agreement . 14 . BACKGROUND RECITALS . The Background Recitals are true and correct and form a material part of this Agreement . 15 . DEFAULT . County shall have the right to terminate this Agreement and /or deny User Group use of the stadium if User Group defaults in the performance of any obligation hereunder , provided that in the event of such default , the County shall give the User Group notice of such default and twelve ( 12 ) hours to cure the default or a lesser time if appropriate to the default on the day of the event . 16 . NOTICES . Any notices or other written communications from the User Group to the County shall be delivered by fax , overnight mail , hand delivery , or first class mail to the County Recreation Director . Any notices or other communications from the County to the User Group shall be delivered by fax , overnight mail , hand delivery , or first class mail to the User Group Executive Director . The names and address to be contacted are as follows : As to the County : Indian River County Board of County Commissioners Attn : Michael C . Zito , Assistant County Administrator 1801 27th Street , Vero Beach , FL 32960 - 3398 3 M-- -- =-- M- 7 As to the User Group Every Dream Has A Price , Inc . Attn : Julianne R . Price , President 2179 10th Avenue , Vero Beach , FI 32960 IN WITNESS WHEREOF , the County and the User Group have caused this Agreement to be executed in their respective names as of the date set forth above . USER GROUP : INDIAN RIVER COUNTY , FLORIDA : EVERY DREAM HAS A PRICE , INC . By : ��� ��1 Llk�- P ByM Juli nne R . Price , President 1C unty Administrator or Designee Approved as t and legal sufficiency : County Aqojr y APPROVAL BY MILB VERO BEACH , LLC , SOLELY AS TO THIRD PARTY BENEFICIARY PROVISIONS MILB VERO BEACH , LLC By : Craig B { Calla , Vice President National Association of Professional Baseball Leagues , Inc . Managing Member 4 ATTACHMENT 1 Section 6 . 04 . The County ' s Use of Holman Stadium and the Practice Fields : The County shall have the right to use Holman Stadium and /or the practice fields , for up to ten ( 10 ) days per Lease Year , together with any use associated with the community' s annual " Harvest Festival " each year , at no charge to the County ( other than reimbursing MiLB for any operating expenses incurred by MiLB as a result of the County' s use of Holman Stadium and /or the practice fields ) . The dates during which the County may use Holman Stadium and /or the: practice fields shall be selected by mutUal agreement of the ) ,rutins ; provided that , if the panties cannot agree on the dates , MILB ' S rea : onahle selection of data : ; hall be final rid controlling . Provided , however , that MUB will defer to the County and cooperate in scheduling and making the Facility available for the community' s annual " Harvest Festival . " The County may use Holman Stadium and /or the practice fields only for functions which do not directly compete with revenue . generating events which have been otherwise arranged by MiLB . Moreover , the County' s use of Holman Stadium and /or the practice fields must not interfere in any way with MiLB ' s use and quiet enjoyment of the Facility . The County shall not use or authorize the use of Holman Stadium and /or the practice fields in any manner which would have a material detrimental impact on Holman Stadium and /or the practice fields , and the County shall be and remain solely responsible for any damage or destruction to Holman Stadium and /or the practice fields by the County or its assignee . The County , or its assignee , shall be entitled to retain the revenues from ticket sales for its events , and concessions sold during the events when Holman Stadium and /or the practice fields are utilized by the County ; provided , however , that although MiLB covenants wto cooperate with the County in such endeavors , MiLB shall not be required to provide concession management services and /or any other related services during any County event . In all cases , MiLB shall be reimbursed by the County for any operating costs and expenses incurred by MiLB as a result of the County' s use of Holman Stadium and /or the practice fields , including , but not limited to , the cost of any parking attendants , ticket takers , security personnel , clean - up crews , and the like provided by MiLB . Prior to using Holman Stadium and /or the practice fields as provided herein , the County shall cause MiLB to be named as an additional insured on the County ' s general liability insurance policy and shall deliver to MiLB a certificate of insurance which verifies the existence of the policy and the fact that MiLB is named as an additional insured . Lease Year means a twelve - month period commencing on May 1St of any calendar year of the Term hereof and ending on April 30th of the following calendar year ; provided , however , that the first Lease Year shall commence as of the Effective Date and end on the First April 30th following the Effective Date . 1 EXHIBIT 1 Indian River County Holman Stadium Use Guidelines (Revised 04 . 13. 10) A . Eligibility : Requesting user groups must be Not-for- Profit section 501 ( c ) ( 3 ) corporations based in Indian River County and serving Indian River County residents . Eligible user groups are limited to one use per lease year , May 1 through April 30 . F3 . Us (: of Proniisesx ( JI-JO Of thc; I iolrrIan Stadium facilities and /or the (our- ( LIf. ) - ields the two ( 2 ) half baseball practice fields ( collectively referenced as " Stadium " ) must be lawful and consistent with the use of Indian River County public facilities . In addition , use must be in compliance with section 6 . 04 of the Facility Lease Agreement dated April 21 , 2009 , between Indian River County , a political subdivision of the State of Florida , and MiLB Vero Beach LLC , a Florida limited liability company ( " MiLB " ) , a copy of which section is attached hereto as Attachment 1 and incorporated herein in its entirety by this reference . Requested use and dates must not conflict with scheduled facility use by MiLB , Indian River County scheduled events , or events sponsored by the Treasure Coast Sports Commission . User group shall not exclude from participation in , deny the benefits of, or otherwise subject anyone to discrimination in , the use or operation of the Stadium for the event on the basis of age , sex , disability , race , color , national origin , religion , or ancestry . C . Security : Security will be provided by the Indian River County Sheriff' s Office or the Vero Beach Police Department and MiLB . The security provisions must have the prior written approval of both MiLB and either the Indian River County Sheriff' s Office or the City of Vero Beach Police Department , as applicable . The user group shall be solely responsible for all costs associated with security and shall reimburse both MiLB for the cost of security personnel and the Indian River County Sheriff' s Office or the Vero Beach Police Department , as applicable , for event security and traffic control . D . Insurance : Insurance requirements will be determined by the County ' s Risk Manager based on the type of event , anticipated attendance , and any other criteria as established for the determination of appropriate coverage . The County shall notify the user group during the review process set forth in paragraph K2 of these Guidelines of the types and amounts of required insurance coverage . Indian River County and MiLB must be named as additional insureds in the policy or policies of insurance . A certificate or certificates of insurance must be delivered to both the County ' s Risk Manager and MiLB containing the types and amounts of the required coverage , and showing the required additional insureds no later than ten ( 10 ) business days prior to the event date . In addition , the agreement to be executed by the user group and the County shall contain an indemnity from the user group to the County and MiLB for the costs 1 of any damage or destruction to the Stadium or liabilities associated with personal injury or death that occurs in connection with the use of the Stadium by the user group . E . Alcohol U-seg-greup-s-afe-pmh+t�ited-froni--e4ewing—selli+� J ) - I1avsing , -cerseming ar pFGvk kig een-any- b- stn-vhatsee-ve, , or allow ; ng the-sake , sur pt+en; er prauision , on any asis -what-soever-of --any--a liG beverages-o€-any-natwe whatsoever- from ,- in ; - around - or - in connection with ;- tlibt-St�adiiirn - er - premises-- at- Litiy time--prior ,—during -er-after-the- event-,a#-the-Stadium-or- prernises---A- user-group- that viol ' tes this restriction will be-prohibitel - fron-a -any future I_ scl -,of [ lie -Sfriclium . F . f= acility Use Costs : User group is responsible for any and all expenses associated with the use of the Stadium , including costs imposed by MiLB for use , including , but not limited to , parking attendants , ticket takers , security personnel , clean - up crews , concession operations , and utilities , all as set forth in Attachment 1 . Go Security- Depes+ I cai F i Z-s,cr•-groupost- -sec ire-rity--depo-sit n the ount nz v-a—min�rn� Tbou sa nd--Boa I ar-s (� �9g9}- i n-th #- G ser-aerti#+ed or Gash me r s—Ghec-k dr-awn--on --af+y-U nited-Sta tes--ban k---irrevocable--d+rect- pa y- letter- of-credit-or-surety bend-is-sued-by-a-&urett-linen-sed-to issue-swety-bends-in-t=ierd-a-and-insluded- in-the rnas#-r-eGent--Un+ted-States-Bepartrnent- -of4he--TFeasur L &t-ef-AsEeptable Sureties; each -©f-the-foregoing-payable to India-n-R4ver-Ceunty-to- be--held-by-t-die- Ceunty� and in-4fie--case-49f-an-it-revacabl"fec-t-pay4ett. , of G—.edit- surety- bend;-in-#arm-and substance-acEeptable-to4he-Co uety-resew /c e-right-to-insrease-the arneunt-e#--4he-re- red-security-deposit-due-to4he-r-attire-of-the-event; and-the County shall RG fy the User-gaup--during-the-review--prasess segorth in paragraph K-2 of-�t,he-Guid fi yes-of} ary -additionaI amount- of seer+posi - to The -ser-Creup sshall-t*Ciiver-t#&--serv�#y -deposit +Jitze-the-GGIAQffi � �nagemnnrt�n &Budget-ne 1 er than ten ( 18 ) business clays-prier-to the eve+Jt date and-, 4 applisabte;-exeG +te-a Gash--esGrew-&g �ent-between-theCeunty-and the IITS—vserr -Group , in fGFm and subStaRGeacGe pta b 1 e to the 10n int i at the time ie_cor irifii rJone t 4& tL� `Tai Treu: H . Facility Preparation and Cleanup : The user group is responsible for all costs associated with the Stadium cleanup and field restoration as set forth in Attachment 1 . MiLB must approve cleanup and restoration . If the user group should fail to restore the Stadium facility and grounds , MiLB will have the authority to initiate cleanup and restoration , and any additional costs will be the sole responsibility of the user group , as set forth in Attachment 1 . The County reserves the right to deduct any such additional costs from the security deposit . I . Television Rights : Any recording or taping of the event must have the prior written approval of both MiLB and the County , which consent may be granted , denied , or conditioned by either the County or MiLB at their sole respective discretion . Nothing contained herein shall be deemed or construed to require approval by either the County or MiLB of any recording or taping of the event . J . Concessions : Concession sales and operations must have the prior written consent of Mil- B which consE1111may be grinteri , denied , or conditioned by M11- 13 in its sole discretion . The user group will reimburse MiL. B for ally concession service costs incurred by MILLS , as set Forth in Attachment 1 . K . Procedures : 1 . A written request must be submitted by the user group ' s chief executive officer or board of directors to the County Administrator or his designee at least ninety ( 90 ) days in advance of the requested use date . The request must include the following : requested date ( s ) of use , type of event , estimated attendance , purpose , proof of non - profit status , and a listing of current board of directors and executive director . The County will coordinate with MiLB to seek the written approval of the availability of the date ( s ) from MiLB . 2 . Review and approval shall include : County Administrator , Recreation Department , Risk Management Department , Budget Department , County Attorney and Finance Department , and the Indian River County Sheriff' s Office or the Vero Beach Police Department . Additional information may be requested during the review process , including , without limitation , proposed budget and estimated expenses and revenues for the event . It is the responsibility of the requesting user group to secure all appropriate approvals . 3 . After the County Administrator or designee review , the user group will be notified in writing , within thirty ( 30 ) business days after the date the request was submitted , of the status of the request ; the amount of the required security deposit ; the types and amounts of required insurance coverages ; and the date the request will be submitted for County Commission consideration . The County Administrator or designee will submit the request to the County Commission , The County Commission may approve , approve with conditions or deny the request . The approval or disapproval is at the sole discretion of the County Commission . 4 . Execution of an agreement between the County and the user group with respect to the use of the Stadium ; submission of proof of ability to obtain the required insurance coverages ; delivery of security deposit , and , if applicable , execution of a cash escrow agreement between the County and the user group ; and delivery of certificates of required insurance coverages . 3 L . Fiscal Reports : Within thirty ( 30 ) business days after the event , a summary of expenses , revenues , and estimated attendance signed by the executive director and the chairperson of the user group ' s board must be submitted to the County Administrator or his designee . In addition , the user group shall submit fully executed copies of any agreements that user group has obtained in connection with the event between the user group and MiLB and any other vendor or provider of food and merchandise concessions , beverages , and other items associated with the event . M . I`ito County t_Linding : County contribution is use of the `> kadium on the date or dates requested by MON user group . No County funding of any nature whatsoever , cash or in - kind , will be provided . N . Permits : Any and all required permits and licenses and associated costs for use based on the Indian River County Code of Ordinances , Health Department or any other regulatory authorities are the sole responsibility of the user group . Proof of permits must be provided no later than thirty ( 30 ) calendar days prior to the requested use date to the County Administrator or his designee . Failure to provide proof of required permits authorizes the County to remedy the situation including up to termination of the requested use . Any expenses incurred by the user group associated with the use of the stadium facilities prior to the time of termination of the requested use pursuant to this paragraph are the sole responsibility of the user group . O . Cancellation of event The County ; in a declared emergency , may cancel the event at its sole discretion . If the user group proposes to cancel the use after the County Commission has approved the application and reserved the date ( s ) , the user group must notify the County Administrator or his designee and MiLB in writing as soon as possible prior to the scheduled date of use . P . Discretion The County Administrator shall have discretion to waive any procedural , time period or other such requirement of the Use Guidelines when he/she determines that such waiver is in the best interests of the County . Q . Remedies Failure of the user group to comply with the terms of the agreement authorizes the County to cancel the event up to the date of the scheduled event , and may prohibit the use of the Stadium by the user group for future events at the sole discretion of the County . 4 EXHIBIT 2 INSURANCE REOUIRE MENTS Commercial C:aeneral Liability tvilh mininium combined sinrll :� limil of ` 1 000 000 for hodliy injury property dJ1, n ,I (_Ige to irlclucle co �: �, rrlr; � � ( � ; r � 1 0111 ) ( '. l (' lI l` ) L' IF1 ' IOlis Coiltr � . ( ; til . I I 11 Il �il � lllfyrlil ( I IIhIepclldol ) l ccr ) ( 10 ( Vork ( : 10 Compensation t0 meet sla [ ulory If7llt3 ifl conlpiialice with the Workers ' Compensation law of Florida and Fmployer ' s Liabilily of $ 100 , 000 for each accident , $ 5001000 disease ( policy limits ) and $ 100 , 000 disease ( each employee ) . Business Auto Liability ( if vehicles are involved ) with $ 1 , 000 , 000 combined single limit per occf frrerro coverage for bodily injury anc.i property damage . Indian River County is to be an addi ( ional insured for CCL and BAL , f�1iLB wvill also be named as an addilional insured on lE c) r re policies . 1