HomeMy WebLinkAbout2010-287 1 70910
� . F
Indian River County Holman Stadium Use Agreement
This Holman Stadium Use Agreement ("Agreement") is made this 017day of
�t o 6zvee , 2010 , by and between Indian River County Board of County
Commissioners , a political subdivision of the State of Florida ("County") and Jake Owen
Foundation, a Tennessee corporation , operating in and serving residents of Indian River
County (501 (c) (3 ) application pending) ("User Group") .
BACKGROUND RECITALS
A . The User Group has requested the use of Holman Stadium facilities and/or the
four (4) baseball practice fields and the two (2) half baseball practice fields
(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 Exhibits 1 and 2 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 Exhibits 1 and 2 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 from December 9 , 2010
through December 11 , 2010 , inclusive , 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 4, 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 : Jake Owen Concert
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 2 , including, without limitation , the charges set forth in paragraphs C , D , E , F and
G . 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 Group , together with a courtesy copy to the County
within ten ( 10) business days after the 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
C. IDacrunenls and Beltings jackieCBDO,IldLV9Lucnl .Selting,aCferepnrnrr Lnernel hle,vIOLti I EI .Ye :Igreemunl - Conlracl dac I
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 security 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 , attendees at the event, 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 , attendees
at the event, 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 2 .
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
C:lDocumenrxmrd kr ing,% �ackle. CIM03LI /Kernel 1'ileelp/„C;q{!l Ura :Igrecmen( - Cnnrroadoc 2
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 User Group .
11 , 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 a reasonable period of time to cure the default .
The determination of what period of time is "reasonable" shall be made by the County in
its sole discretion, based upon relevant circumstances , including , without limitation , the
severity of the default, the extent to which the default creates a safety risk, the amount of
time remaining until commencement of the event, etc .
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
1801 27th Street
Vero Beach , FL 32960 - 3398
( Documents and .Sevilipjnekie. vInternet Filerl0IKA 81Uae dgreemem - Convaadoc 3
As to the User Group :
Jake Owen Foundation
209 10th Avenue South , Suite 216
Nashville, TN 37203
17 , MISCELLANEOUS , (a) subject to approval by MiLB , the User Group shall have
the right to use all parking areas customarily used for major events at the Stadium ,
including the rectangular shaped parking area consisting of approximately 9 . 1297 acres
located to the north and adjacent to the Stadium, and (b) the County acknowledges that,
by document dated August 28 , 2010 , the City of Vero Beach has granted permission to
the User Group to extend the time for making noise from 10 p . m . to 11 p . m . on the date
of the Jake Owen Concert . To the extent necessary , the County also hereby grants such
permission to the User Group .
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 .
JAKE OWEN FOUNDATION INDIAN RIVER COUNTY , FLORIDA
("User Group") : (" County") :
By : 1 - - 6&
( �
ackie arrick, Manager Peter D . O ' Bryan, Chairman as+aaGpy�MISSIp,�� :,,
oleo
Approved as to form and legal suf Awc
8V .
V
O VV , tea
O s
o
2 el
4- '(�V�i
Alan S . Polackwich , S . , County At t ; •'
4pOetlrBp ,,.� nOv pw�.
BCC Approved : November 9 , 2010
APPROVAL BY MiLB VERO BEACH LLC SOLELY AS TO THIRD -PARTY
BENEFICIARY PROVISIONS
MiLB VERO BEACH, LLC
By : C�u
Print Name : k r Ch. co� G
Print Title : U , S , , of
National Association of Professional Baseball
Leagues , Inc . , Managing Member
C Docamentc Contract doc 4
EXHIBIT l
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 parties ; provided that, if the parties
cannot agree on the dates, MiLB ' s reasonable selection of dates shall be final and controlling .
Provided, however, that MiLB 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 to 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 I " 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 ,
C * Documents and Settingsyackie. CBDOMAINILocal SettingslTemporary Internet Files1OLKAEIUse Agreement - Exhibits.doc
EXHIBIT 2
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 I through April 30 .
B . Use of Premises :
Use of the Holman Stadium facilities and/or the four (4) baseball practice fields and 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 Exhibit 1 . 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 . Securitvo
Security will be provided by the Indian River County Sheriffs 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 Sheriffs 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 Sheriffs 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 J2 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
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 .
C:IOocuments and Settingsgackie. C800MA1NILoca1 SettingslTemporary Internet FilesIOLKAEIUse Agreement - Exhibits. doc
E. Facility 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 Exhibit 1 .
F . Security Deposit .
User group shall post a security deposit in the amount of a minimum of Five Thousand
Dollars ( $ 5 , 000) in the form of cash , or a certified or cashier ' s check drawn on any United
States bank, irrevocable direct pay letter of credit, or surety bond issued by a surety licensed
to issue surety bonds in Florida and included in the most recent United States Department of
the Treasury List of Acceptable Sureties , each of the foregoing payable to Indian River
County to be held by the County , and in the case of an irrevocable direct pay letter of credit
or surety bond, in form and substance acceptable to the County . The County reserves the
right to increase the amount of the required security deposit due to the nature of the event,
and the County shall notify the user group during the review process set forth in paragraph J2
of the Guidelines of any additional amount of security deposit . The user group shall deliver
the security deposit to the County Office of Management & Budget no later than ten ( 10)
business days prior to the event date and , if applicable , execute a cash escrow agreement
between the County and the user group , in form and substance acceptable to the County, at
the time the security deposit is tendered .
G . Facility Preparation and Cleanup :
The user group is responsible for all costs associated with the Stadium cleanup and field
restoration as set forth in Exhibit 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 Exhibit 1 . The County reserves the right to deduct any such
additional costs from the security deposit .
H . 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 ; provided , however, that nothing herein shall prevent the user group from taping the
event solely for the personal or internal use of the user group .
1 . Concessions •
Concession sales and operations must have the prior written consent of MiLB which consent
may be granted , denied, or conditioned by MiLB in its sole discretion . The User group will
reimburse MiLB for any concession service costs incurred by MiLB , as set forth in Exhibit 1 .
CADocuments and Settingsyackie. CBDOMAINUcal Settingsl Temporary Internet FilesIOLKAEIUse Agreement - Exhibits. doc
J. 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 Sheriffs 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 .
K. 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.
L . No County Funding :
County contribution is use of the Stadium on the date or dates requested by the user group .
No County funding of any nature whatsoever, cash or in-kind , will be provided .
M. 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
C:iOocuments and Settingsy""ackie. C8D0MA1Woca1 SettingslTemporary Internet ReslOLKAEIUse Agreement - Ezhibits. doc
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 .
N . 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 .
® . 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 .
P . 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 .
C:IDocuments and Settingsyackie. CBDOMAINILocal SettingslTemporary Internet FilesIOLKAEIUse Agreement - Exhibits.doc