HomeMy WebLinkAbout2004-302 q
FROG LEG FESTIVAL CONTRACT
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This contra t is made on this day of Ly, 2004, between the
Fellsmere F , og Leg Festival, Inc . ( hereinafter eferred to as " FFLF, Inc . " ) , the City
of Fellsmere, Florida ( hereinafter referred to as " City" ) and Indian River County,
Florida, ( hereinafter referred to as " County" ) .
In consideration of the mutual covenants and promises of the above referenced
parties, FFLF, Inc . , the City and the County, hereby promise , covenant and agree
to be boun � by the following terms .
I . PURPOSE AND FESTIVAL DATE * The purpose of this Contract is for FFLF
Inc . to arrange , promote and manage the Fellsmere Frog Leg Festival
( hereinafter referred to as " the Festival " ) . The City and the County will
provide the site for the Festival, in accordance with the Lease Agreement
covering the site attached hereto as Attachment 1 hereby made a part of this
Contract. The dates and hours that the Festival will be open shall be
established by FFLF, Inc . , subject to prior written approval by the City .
See Attachment 1 for a description of
the site where the Festival will be held .
2 . ENGAGEMENT AND TERM * The City and County shall permit FFLF, Inc . to
stage the Festival in accordance with the terms and conditions of this Contract.
The tern of this Contract shall be from November , 2004 to March 31 ,
2005 . FFLF, Inc . shall have the right to terminate this agreement at any time
prior to December 1 , 2004, upon five ( 5 ) days written notice to the City .
3 . DISTRIOUTION OF FESTIVAL PROCEEDS *
A . FFLF, Inc . shall pay to the City at the close of the Festival but in no
event later than March 31 , 2005 .
( a ) An amount not to exceed Five Thousand ( $ 5 , 000 ) Dollars . The
actual amount will be based on actual hours, for the City
furnishing Police Officers for security during the Festival .
( b ) An amount not to exceed Six Thousand ( $ 6 , 000 ) Dollars . The
actual amount will be based on hours, for the City to provide
Public Works personnel, one week prior to and one day after the
Festival , plus the four days of the Festival, for general site
preparation and clean up . This service is optional . FFLF, Inc .
shall determine the level of service needed .
B . The net festival revenue remaining after all legitimate expenses are paid,
including festival disbursements to volunteers and reserve for funding
future Festivals shall be used for recreational projects, facilities or
activities within the City limits of Fellsmere, as determined by the FFLF,
Inc .
C . It is understood and agreed that no services, payments or personnel
will be furnished by either party, except as provided for in this Contract.
4 . UTILITY SERVICE .
A . ELECTRICITY . FFLF, Inc . will provide their own generator for electric
power for the entire Festival period . Any consumption ( FPL charge for)
of electric energy in the kitchen area of the Fellsmere School will be paid
for by FFLF, Inc . , if the County has electric service to the Fellsmere
School . If FFLF, Inc . uses electric energy from any source billed to the
City or County, such electric energy charge shall be paid for by FFLF, Inc .
B . WATER. The water at the Fellsmere School is in the name of the County .
The City/County will provide FFLF, Inc . with City water . FFLF, Inc . shall
pay the charge to provide such service . The actual cost incurred by the
City/County to provide water service, shall include the consumption of
water by FFLF, Inc . , the cost to provide such service, the repair of any
damage to the City's water meter or the replacement of the meter if it
should be removed without authorization .
5 . MISCELLANEOUS : FFLF, Inc . shall provide the following:
A . Waste containers and dumpsters .
B . Personnel and volunteers .
C . Regular maintenance of the site and surrounding areas to ensure a clean
and safe environment during the Festival .
6 . INSURANCE :
A . FFLF, Inc . shall name the City and the County as an additional insured on
its general liability insurance policy, which policy shall be in an amount of
not less than One Million Dollars ( $ 1 , 000, 000 ) per occurrence . This
general liability insurance policy shall be an " occurrence " policy and not
a " claims made " policy . FFLF, Inc . shall also provide Workers '
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Compensation with statutory limits for all of its paid employees,
Accident, Medical and Disability Insurance and Employer's Liability
Insurance with limits of coverage, acceptable to the City and the County,
for all of its personnel and volunteers and those who perform any work at
the Festival . The deductible for all policies under this paragraph shall not
exceed One Thousand dollars ( $ 1, 000 ) . The public general liability
insurance and Workers ' Compensation coverage policy shall be effective
December 1 , 2004, and run through January 31 , 2005 . Said public
general liability insurance policy, accident, medical and disability and
Worker's Compensation policy shall be with a company and in a form
acceptable to the City and the County . By January 2 , 2005 provide
Accident, Medical and Disability and by December 1 , 2004, an
Endorsement to the general liability insurance policy and a Certificate of
Insurance naming the City and County as an additional Insured and
showing an " occurrence policy" shall be delivered to the City and the
County together with proof of payment of premium , along with a letter
from the insurance agent issuing the policies, addressed to the City and
the County, stating that ( 1 ) the general liability insurance policy is an
"Occurrence Policy" ( 2 ) all insurance coverage 's required in the
paragraph are included in the insurance policies issued to FFLF, Inc . and
( 3 ) that there are no claims pending against FFLF, Inc . that would reduce
the amount of the insurance coverage being provided to the City and the
County .
Be FLF, Inc . 's subcontractor for the amusement rides and concession portion
of the festival shall name the City and the County as an additional insured
on its general liability insurance policy, which policy shall be in an
amount of not less than Two Million Dollars ( $ 2 , 000, 000 ) annual
aggregate for injuries to any one or more persons and not less than One
Million Dollars ( $ 1 , 000, 000 ) per occurrence . This general liability
insurance policy shall be an " occurrence " policy and not a " claim made "
policy . This subcontractor shall also provide Workers ' Compensation and
Employer's Liability insurance with statutory limits of coverage for all of
its employees who perform any work at the festival . The deductible for
all polices under this paragraph shall not exceed One Thousand Dollars
( $ 1 , 000 ) . The general liability insurance and workers ' compensation
coverage policy shall be effective as of January 1 , 2005 and run through
January 31 , 2005 . Said general liability and workers ' compensation
policy shall be with a company and in a form acceptable to the City and
the County . By December 1 , 2004, an endorsement to the general
liability insurance policy shall be delivered to the City and the County
and by January 12 , 2005 a Certificate of Insurance naming the City and
the County as an additional insured and showing an " occurrence policy"
shall be delivered to the City and the County together with proof of
payment of premium , along with a letter from the insurance agent issuing
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the policies, addressed to the City and the County, stating that ( 1 ) the
general liability insurance policy is an It policy" ( 2 ) all
insurance coverage 's required in this paragraph are included in the
insurance policies issued and ( 3 ) that there are no claims pending that
would reduce the amount of the insurance coverage being provided to
the City and the County .
7 . INDEMNIFICATION : Except where a claim arises from the acts or omissions of
the Cityor its employees, FFLF, Inc . shall indemnify, defend, and hold harmless
the City ' and the County from and against any and all claims, demands, losses,
liabilities, judgements and expenses of any nature whatsoever, including
reasonable attorneys ' fees both at trial and appellate level and all costs of
litigation , which may be asserted against or imposed upon the City or the
County or the City's title to or interest in its property which may arise out of or
be attributable to, directly or indirectly; ( a ) any act, whether negligent or
wilifull or omission by FFLF, Inc . or any of its agents, personnel or vendors ( b )
injury or death of any person, including without limitation , the general public,
or loss or damage to any property including property of the general public, ( c )
any failure by FFLF, Inc . to perform or comply with any of the covenants,
agreements, terms, or conditions to be performed or complied with under this
Contract or ( d ) claims made by the personnel of FFLF, Inc . or any of its
contractors, vendors, etc against the City or the County. FFLF, Inc . waives its
entitlement, if any, to immunity under Section 440 . 11 , Florida Statutes .
Nothing ' contained herein shall be construed as a waiver of any immunity from,
or limitation of, liability the City and the County may have under the Doctrine
of Sovereign Immunity of Section 768 . 28 Florida Statutes .
8 . RESTO )ZATION OF SITE : FFLF, Inc . covenants that all City and County
property and facilities used in connection with the Festival will be reasonably
protected against damage and that following the Festival, FFLF, Inc . shall
provide for all necessary clean - up , repair and restoration of such property to its
condition prior to the event, so that such public property is in the same
condition it was before the Festival . A joint inspection will be performed
before and after the Festival to determine compliance with this Article .
9 . WAIVER The failure of the City or the County to take action with respect to
any breach of any term, convenant or condition contained herein, or any
instance of default hereunder by FFLF, Inc . , shall not be deemed to be a waiver
by the City or the County of any other default or breach .
10 . LEGAL FEES AND COSTS : The party who prevails in any claim or action
brought under this Contract shall be entitled to costs and expenses of such suit
including reasonable attorneys ' fees, from the non - prevailing party .
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1I . DEFAULT AND LIQUIDATED DAMAGES • The failure of any party to
comply with the terms and conditions of this Contract applicable to such party,
after receipt of an oral request to correct the default, shall constitute a default
of this Contract. If any default is not corrected in accordance with the
provisions hereof, the non - defaulting party shall have the right to sue for all
damages sustained as a result of the default in additional to any other remedies
provided herein .
12 . TERMINATION OF CONTRACT : This Contract shall terminate and be of no
further force or effect with no party having any liability to the other parties in
the event of fire, flood , tornado, windstorm or other acts of God , beyond the
controlof any party, that result in any party being unable to fulfill its
obligations under this Contract.
13 . PUBLIC ACCESS TO RECORDS : All documents, papers, letters, or other
materials relating to this Contract that are made or received by FFLF, Inc . in
conjunction with this Contract, and which are required by law to be
maintained, must be available for public access and for audit purposes for a
period of three ( 3 ) years after the expiration of this Contract. Said records
shall also be maintained per Chapter 119 and other applicable Florida Statutes .
14 . TERMINATION : The City or the County may cancel this Contract for refusal
by FFLF , Inc . to honor requests for public access to all documents, papers,
letters, or other materials subject to the provisions of Chapter 119 , Florida
Statutes, and made or received by FFLF, Inc . in conjunction with this
Contract.
15 . WARRANTIES : FFLF, Inc . covenants and warrants as follows .
( a ) It is lawfully organized and constituted under all federal, state and local
laws, ordinances and other authorities of its domicile and is otherwise in
full compliance with all legal requirements of its domicile .
( b ) It is possessed of the legal authority and capacity to enter into and
perform this Contract.
( c ) It has been duly authorized to operate and do business in the State of
Florida and the City, that it has obtained or will obtain all necessary
licenses and permits required in connection with this Contract and that it
will fully comply with all laws, decrees, labor standards and regulations
of its domicile, the State of Florida and the City during the performance
of this Contract.
16 . PUBLIC ENTITY CRIME STATEMENT : A person or affiliate who has been
placed on the convicted vendor list following a conviction for a public entity
crime may not submit a bid on a contract to provide any goods or services to
a public entity, may not submit a bid on a contract with a public entity for the
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construction or repair of a public building or public work, may not submit bids
on leases of real property to a public entity, may not be awarded or perform
work as a contractor, supplier, subcontractor, or consultant under a contract
with any public entity, and may not transact business with any public entity in
excess of the threshold amount provided in Section 287 . 017 Florida Statutes,
for CATEGORY TWO for a period of 36 months from the date of being
placed on the convicted vendor list.
17 . OCCUPATIONAL LICENSES : FFLF, Inc . will furnish the City copies of all
licenses required under local or state laws and regulations covering itself,
agents, vendors and concessionaires, prior to the opening of the Festival .
18 . SITE : THE City and County hereby grants to FFLF, Inc . the use of the site
described in and under the terms and conditions as set forth in Exhibit "A "
attached hereto .
19 . NOTICE TO FFLF, INC . . The City and County shall consider the
employment by FFLF, Inc . of unauthorized aliens, a violation of Section
274A ( e ) of the Immigration and Naturalization Act. Such violation shall be
cause for immediate unilateral cancellation of this Contract by the City and/or
County.
20 . GOVERNING LAW AND VENUE : This Contract shall be construed in
accordance with the laws of the State of Florida . The venue for any litigation
arising out of this Contract shall be in Indian River County, Florida .
21 . NOTICES : Any notices, which any party may or is required to give, may be
given orally, hand delivered or mailed by certified mail, return receipt
requested, postage prepaid, to the City, the County or to FFLF, Inc . at the
address shown below or at such other places as may be designated by the
parties ' from time to time .
CITY : Larry Napier, C . G . F . O .
Director of Finance U Accounting
City of Fellsmere
21 S . Cypress Street
Fellsmere, FL 3298 - 6714
with a copy to the City's Attorney:
Warren W . Dill , Esq .
Dill & Evans, P . L .
1565 U . S . Highway 1
Sebastian , FL 32958
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COUNTY : Indian River County
Joseph A . Baird, Administrator
1840 — 25th Street
Vero Beach, FL 32960
with a copy to the County Attorney :
William G . Collins, 11 , Esq .
Indian River County
1840 — 25th Street
Vero Beach, FL 32960
FFLF , INC . :
Fellsmere Frog Leg Festival , Inc .
Post Office Box 67
Fellsmere, Florida 32948 =0067
22 . ENTIRE CONTRACT : This Contract embodies the whole agreement of the
parties and there are no provisions, terms, conditions, or obligations other
than those contained herein . This Contract shall supersede all previous
communications, representations, or oral agreements between the parties and
no amendment hereto shall be effective unless reduced to writing and signed
by the parties hereto .
23 . COUNTERPARTS AND FACSIMILES : This Contract may be executed in
multiple counterparts, each of which shall constitute an original . A facsimile
copy of this Contract and any signature thereon shall be considered for all
purposes as an original .
24 . HEADINGS : The headings used in this Contract are for convenience only and
are not to be used in its construction .
25 . ASSIGNABILITY : This Contract may not be assigned by FFLF, Inc . without
the express written consent of the City and the County. Any assignments of
FFLF, Inc . even if approved by the City and the County shall not relieve FFLF,
Inc . of its responsibilities and obligations resulting from this Contract.
26 . SURVIVAL : The terms and conditions of this Contract shall survive and be in
full force and effect after the conclusion of the Festival .
27 . SEVERABILITY : If any particular term , covenant or provision of this Contract
shall be determined to be invalid or unenforceable, such action shall not affect
the remaining terms, covenants and provisions of this Contract, which shall
remain in full force and effect.
28 . AUTHORIZATION : The undersigned certify that they are authorized to
execute this Contract and that they are duly authorized to perform the services
agreed to above .
29 . TIME OF ESSENCE : Time is of the essence with respect to the performance
of every provision of this Contract, in which time of performance is a factor.
CITY OF FELLSMERE, FLORIDA
BY :
bert C . ftarer, Mayr -
ATTEST :
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eborah C . Krages, City Clerk r _4 m r,,
INDIAN RIVER CQUNTY, FLOPIM
Cr. z BY :
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J _ December 7 , 2004
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FLFCONTRACT. DOC
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RESOLUTION
No . 04 - Q
A RESOLUTION OF THE CITY OF FELLSMERE, INDIAN RIVER
COUNTY, FLORIDA AUTHORIZING THE LEASE OF CERTAIN
CITY OWNED REAL PROPERTY PURSUANT TO SECTION 2 -230
OF THE CODE OF ORDINANCES OF THE CITY OF FELLSMERE,
FLORIDA, TO THE FELLSMERE FROG LEG FESTIVAL, INC .;
PROVIDING FOR THE PURPOSE FOR WHICH SUCH REAL
PROPERTY WILL BE USED; PROVIDING FOR THE TERM OF THE
LEASE; AUTHORIZING THE MAYOR AND CITY CLERK TO SIGN
THE LEASE; AUTHORIZING THE MAYOR AND CITY CLERK TO
SIGN THE FROG LEG FESTIVAL CONTRACT; PROVIDING FOR
REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN
CONFLICT HEREWITH ; PROVIDING FOR SEVERABILITY; AND
PROVIDING AN EFFECTIVE DATE ,
WHEREAS, Fellsmere Frog Leg Festival, Inc . is planning to put on the
annual Fellsmere Frog Leg Festival in January, 2005 ; and
WHEREAS, Fellsmere Frog Leg Festival, Inc . has applied to the City for the
lease of the City's real property set forth in the Real Property Lease Agreement,
attached hereto and by this reference made a part hereof, for use in putting on the
2005 Fellsmere Frog Leg Festival; and
WHEREAS, in order to put on the 2005 Fellsmere Frog Leg Festival , it is
necessary to have a Contract providing for the terms and conditions under which
the City will authorize the use of its property for Festival purposes, which Frog Leg
Festival Contract is attached hereto and by this reference made a part hereof; and
WHEREAS, the City Council has determined that it is in the best interest of
the City to enter into the Real Property Lease Agreement and Frog Leg Festival
Contract attached hereto .
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City
of Fellsmere, Indian River County, Florida, as follows .
SECTION I . RATIFICATION . The above recitals are hereby ratified and
confirmed .
SECTION 2 . PURPOSE . Fellsmere Frog Leg Festival, Inc . has applied to
the City to lease the real property described in the Real Property Lease Agreement,
Attachment 1 , for the purpose of staging said Festival, including but not limited to
amusement rides, vendors, entertainment, parking and related activities .
SECTION 3 . USE . Fellsmere Frog Leg Festival, Inc . is granted use of the
real property described in Attachment 1 and shall be subject to the terms of said
Real Property Lease Agreement.
SECTION 4 . LEASE TERMS . The term of the Lease shall commence on
November �, 2004 and end on January 31 , 2005 , subject to the terms of said
Lease and the Frog Leg Festival Contract entered into along with said Lease .
SECTION S . RENTAL AMOUNT. The rental amount shall be $ 1 . 00
and other considerations, subject to the term of the Lease and Contract.
SECTION 6 . LEASE AGREEMENTS , The Mayor and City Clerk are
hereby authorized to sign the Lease attached hereto . In the event of a conflict
between the terms of this Resolution and the Lease, the terms of the Lease shall
prevail . The said Lease attached hereto must also be approved and signed by Indian
River County since it has leased a portion of the land proposed to be used by the
Festival .
SECTION 7 . FESTIVAL CONTRACT . The Mayor and City Clerk are
hereby authorized to sign the Frog Leg Festival Contract attached hereto . In the
event of a conflict between the terms of this Resolution and the Contract, the terms
of the Contract shall prevail . The said Contract attached hereto must also be
approved and signed by Indian River County since it has leased a portion of the
land proposed to be used by the Festival .
SECTION 8 . REPEAL OF CONFLICTING PROVISIONS . All
previous resolutions or parts thereof, which conflict with the provisions of this
Resolution, to the extent of such conflict, are superseded and repealed .
SECTION 9 . SEVERABILITY. If any section , part of a sentence,
paragraph , phrase or word of this Resolution are for any reason held to be
unconstitutional, inoperative or void , such holding shall not effect the remaining
portions hereof and it shall be construed to have been the legislative intent to pass
this Resolution without such unconstitutional , invalid or inoperative part.
SECTION 10 . EFFECTIVE DATE . This Resolution shall take effect
immediately upon its adoption .
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Th fore oing Resolution was moved for adoption by Council Member
and the motion was seconded by Council Member
and, upon being put to a vote, the vote was as follows :
Councilman Michael E . Barone
Councilman Joel Tyson
Councilman John A . McCants
Councilwoman Sara J . Savage
Councilman Fernando Herrera
Mayor Robert C . Baker is a non -voting member of the Council .
The Mayor thereupon declared this Resolution duly passed and adopted this
day of aML6PL,, q 2004 .
CITY OF FELLSMERE, FLORIDA
zwyl��e Zoe
ert C . ; er, Mayor
Attest:
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Deborah C . Krages, City k
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REAL PROPERTY LEASE AGREEMENT
This Lease made this day of �'l2004 , between the City of Fellsmere ,
Florida, 21 South Cypress Street, Fellsmere , Florida 32948 , Indian River County, Florida, 1840
25th Street, Vero Beach, Florida 32960 , hereinafter collectively referred to as "Lessor" , and
Fellsmere Frog Leg Festival , Inc . , Post Office Box 67 , Fellsmere, Florida 32948 , hereinafter
referred to as "Lessee" and when the context so requires the City of Fellsmere will be referred to
as the "City" and Indian River County, Florida, hereinafter referred to as the "County" .
For considerations set forth herein, Lessor hereby leases to Lessee and Lessee acquires from
Lessor the use of the following described site :
See Attachment 1 for a description of
the site where the Festival will be held
1 . TERM
The term of this Lease shall commence on November 18 , 2004 and end on January 31 ,
2005 , subject to the written approval of Indian River County, as provided in Paragraph 25
below .
2 . RENTAL
The Lessee shall pay to the Lessor for the term of this Lease : The annual sum of ONE
DOLLAR ($ 1 . 00) , on or before November 10, 2004 . The rent shall be payable to the
Lessor at such other place as the Lessor may designate .
3 . CARE 12F PROPERTY
Lessee shall use the Property in a careful and proper manner and shall comply with all
laws , ordinances and regulations relating to the operation, possession, use or maintenance
of the property.
4 . ALTERATIONS
Lessee agrees that it will make no alterations of the Property without obtaining prior
written permission from the Lessor.
5 . RIGHT OF INSPECTION
Lessor shall have the right, at any time, to enter the premises and shall be given free
access thereto and afforded necessary facilities for the purpose of inspection .
6. RETURN OF PREMISES
On expiration of the rental terms specified herein, Lessee agrees to return the premises in
the same condition they were when this Lease was entered into .
7. RISK OF LOSS OR DAMAGE
Lessee hereby assumes all risks of loss of and damage to the Premises from any cause,
and agrees to return it to the Lessor in as good condition as when received . No loss of or
damage to the Premises shall impair any obligation of Lessee under this Lease, and all
such obligations shall continue in full force and effect until otherwise discharged .
8 . INDEMNITY OF LESSOR FOR LOSS OR DAMAGE
In event of loss of or damage to the Premises, Lessee at the option of Lessor shall pay
Lessor therefore in cash, the cost of such of loss or damage , including all costs necessary
to place the public property in the same condition as it was before the Festival .
9 , INDEMNIFICATION AND INSURANCE
It is recognized that the Lessor will have very limited control over the Premises during the
term of this Lease, accordingly, the Lessee agrees to hold harmless and indemnify the
Lessor from and against all loss , liability, or expense for personal injury or property
damage which might arise through the presence , operation, use or maintenance of the
Premises and to maintain liability and property damage insurance coverage in the amounts
shown in the Contract to protect the interest of the Lessor.
Should any person, natural or otherwise, bring suit or commence any legal proceeding,
judicial or otherwise, against the Lessor for personal injury or any other personal liability
or for any property damage or for any other matter whatsoever, arising from Lessee ' s use
of the leased Property, the Lessee hereby agrees to defend Lessor in said matter or
proceeding and Lessee agrees to pay all legal fees and costs Lessor may incur as a result
of said proceeding or suit .
10. TAXES AND FEES
Lessee shall pay all taxes , assessments, licenses and registration fees on said Property, if
any, during the term of this Lease, and furnish to Lessor satisfactory proof that such
payment has been made before such taxes , assessments or fees become delinquent .
11 . EVENTS CONSTITUTING DEFAULTS
The following events constitute defaults :
a. The nonpayment by Lessee, for a period of twenty (20) days , of any sum
required hereunder to be paid by Lessee .
b . The nonperformance by Lessee of any other covenant or condition of this
Lease which is not cured within twenty (20) days after notice thereof from
Lessor.
C , An affirmative act of insolvency by Lessee , or the filing by Lessee of any
petition under any bankruptcy, reorganization, insolvency or moratorium
law, or any law for relief of, or relating to , debtors .
d . The filing of any involuntary petition under any bankruptcy statute against
Lessee, or the appointment of any receiver or trustee to take possession of
the property of Lessee, unless such petition or appointment is set aside or
withdrawn or ceases to be in effect within thirty (30) days of the date of the
filing or appointment.
e . The subjection of any of Lessor ' s Property to any levy, seizure ,
assignment, application or sale for or by any creditor of Lessee or
governmental agency.
12 . LESSOR' S RIGHT TO PREVENT DEFAULT
Should Lessee fail to make any payment or do any act as herein provided , then Lessor
shall have the right, but not the obligation, without notice to or demand on Lessee, and
without releasing Lessee from any obligation hereunder, to make or do the same , and to
pay, purchase, contest or compromise any encumbrance, charge or lien which in the
judgment of Lessor appears to affect the Property, and in exercising any such rights, incur
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any liability and expend whatever amounts in its reasonable discretion it may deem
necessary therefor. All expenses so incurred by Lessor shall be, without demand,
immediately due and payable by Lessee and shall bear interest at the rate of ten percent
( 10%) per annum until paid.
13 . RIGHTS UPON DEFAULT
On the occurrence of any of the items listed in Section 11 , as constituting a default, Lessor
may without notice to or demand on Lessee, immediately take possession of the Premises .
14 . CHOICE OF LAW
This Lease shall be governed by and construed under the laws of the State of Florida.
Venue shall be in the appropriate court in Indian River County, Florida.
15 , LIMITATION OF EFFECTS OF WAIVERS
No delay or omission to exercise any right, power or remedy accruing to Lessor for any
breach or default by Lessee under this Lease will impair any such right, power or remedy
of Lessor, nor shall it be construed to be a waiver of any such breach or default, or any
acquiescence therein, or of any similar breach or default thereafter occurring; nor shall
any waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of Lessor of any breach or default under this Lease, or any
waiver on the part of Lessor of any term, provisions , condition or covenant of this Lease,
must be in writing, and will be effective only to the extent in such writing specifically set
forth . All remedies , either under this Lease or by law, or otherwise afforded to Lessor, will
be cumulative and not alternative .
16. ASSI NMENT
Lessee shall not assign this Lease or any interest in said Lease, without Lessor ' s written
consent . Lessee shall not sublet the Premises herein, or any part of it, without Lessor ' s
written consent .
17. LEASE APPLICABLE TO SUCCESSORS AND ASSIGNS
Lessor and Lessee agree that the rights and obligations under this Lease shall inure to and
be binding on their respective successors and assigns, subject, however, to the provisions
of Section 16 , herein .
18. ATTO'RNEY ' S FEES
In the event that any action is filed in relation to this Lease , the unsuccessful party in the
action shall pay to the successful party, in addition to all other sums that either party may
be called on to pay, a reasonable sum for the successful party ' s attorneys ' fees and costs .
19. SEVERABILITY
This Lease embodies the entire agreement between the parties . It may not be modified or
terminated except as provided herein or by other written agreement . If any provision
herein is invalid it shall be considered deleted here from, and shall not invalidate the
remaining provisions .
20. TERMINATION OF LEASE
Unless otherwise terminated, this Lease will continue in force until all of the obligations
of the parties hereto have been discharged. Upon the sale , lease or transfer of the property,
whether voluntary or involuntary through Court Order or otherwise, the Lessor shall have
the right to terminate this Lease upon giving Sixty (60) days written notice to Lessee ,
without incurring any responsibility or liability whatsoever. Any advance rent received by
Lessor shall be prorated as of the date of termination and refunded to the Lessee .
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21 . WARRANTIES
Lessor makes no warranties , express or implied, as to the Property leased, and assumes no
responsibility for its condition . The Property is being leased AS IS , WHERE IS , WITH
ALL FAULTS ,
22 . NOTICES
Any notice to be given under this Lease shall be by hand delivery or mailed by registered
or certified mail with postage prepaid to the party to be notified at the address set forth
herein .
23 . COUNTERPARTS
This Lease may be executed in multiple counterparts , each of which shall be an original ,
and all of which shall be deemed to be one and the same .
24 . FACSIMILE COPY
Facsimile copies of this Lease and any signatures hereon shall be considered for all
purposes as originals .
25 . PROPERTY
It is understood and agreed by the parties hereto that the City has previously leased a
portion of the Property described herein to Indian River County, which is why the County
is a party to this Lease and why it is necessary for the County to approve and be a
signatory to this Lease . This Lease Agreement is contingent upon the approval by the
County. Notwithstanding any other provisions contained in this Lease Agreement, this
Agreement shall not become effective until signed by Indian River County .
26. MISCELLANEOUS
The Festival shall be responsible for prohibiting parking on the Community Center
property (Lots 24 through 26 , Block 98) , the property leased to RCMA and the Handball
and Tennis Courts located on Lots 14 and 15 , Block 101 . Trailers or vehicles are
prohibited from accessing City property along South Cypress Street, except at the
driveway, from CR 512 to California Avenue, because prior access has damaged the
secondary drainage system . The Festival shall be responsible for keeping California
w�. Avenue open to the public from South Broadway Street to Cypress Street .
nRg c � .
• r � h„
LESSOR :
CITY OF FELLSMERE , FLORIDA
By.
ew.ao°61/ 8lhaaaaa0taa, c Obert C . a {er, Maydr
ATTEST Dated : 0)1kXX&VoQ 2-11
y: 2
Deborah C . Krages, City Cler
4
INDIAN RIVER COTY, FLORIDA
By QZ
Arthur R . Nelff erai
� r R�Ir
ATT f . ; Dated : December 7 , 2004
Clerk o he Circuit ,o`urt�
8 PROME- . ' a
Y�
eta � t �1 LESSEE :
FELLSMERE FROG LEG FESTIVAL, INC .
APP VE
D AS, TO CORM '
AN .1 (� Z Z r
L L SUFFICIE CY
MARIAN E . FELL By
AS ` SA,HAjf COUNTY ATTORNEY Ma gi mons , President
Dated : yL/- �,; -z:V
ATTEST :
B w
Secretary
Indian River Co . Approved Date
Administration
Legal
Budget (Z
Department
Risk Managment
5
A. Lots 1 through 11 , Block 96 - Parking or set up of rides is prohibited on the Basketball
Courts .
B . Lots 14 through 24 , Block 96 - Parking or set up of equipment is prohibited around pavilions
and Tot-Lot playground equipment . Tot-Lot area is the North 1 /2 of Lot 18 through the
South 1 /2 of Lot 21 , Block 96 .
C . Vehicular access to Block 96 is prohibited except for designated driveway access over the
sidewalk on the North 1 /2 of Lot 14 and South 1 /2 of Lot 15 , Block 96 .
D . Lots 34 through 37 , Block 97 , and the NW 1 /2 of Lots 38 and 39 , Block 97 - Municipal
parking lot, excluding the NE 1 /2 of Lots 38 and 39, Block 97 , which is where the lift station
is located .
E . Lots 1 through 13 , Block 103 , leased to Indian River County, excluding the old school
building, except the northern part of the basement of the old school building known as the
"Frog Leg Kitchen. " The FFLE , Inc . shall have the exclusive use of the Frog Leg Kitchen
during the term of the Lease .
F . The North 1 /2 of Lot 22 , Lots 23 and 24 and the South 1 /2 of Lot 25 , Block 103 - City
Council Chambers .
The following restrictions shall apply to the use of the paved parking
lot areas adjacent to the City Council Chambers and employee and
citizen parking lot . These parking areas will only be available for
Festival use on Thursday, January 15 , 2004 , between the hours of
5 : 00 p . m . and 7 : 00 a.m . on Friday, January 16 , 2004 and from 5 : 00
p . m . on Friday, January 16 , 2004 to 7 : 00 a. m . on Monday, January
19 , 2004 .
FFLE, Inc . shall have the exclusive use of the above described land for two weeks , which will
be the week before the Festival and the following week, during which the Festival will be held .
ATTACHMENT 1
' U` I
ADDENDUM "A" TO
REAL PROPERTY LEASE AGREEMENT
In reference to the Real Property Lease Agreement dated the 18 " day of November, 2004
(hereinafter referred to as "Lease Agreement") attached as Exhibit "A" to the Frog Leg Festival
Contract between the CITY OF FELLSMERE and INDIAN RIVER COUNTY, FLORIDA
(hereinafter collective referred to as "Lessor") and FELLSMERE FROG LEG FESTIVAL, INC . ,
(hereinafter referred to as "Lessee") and when the context so requires the City of Fellsmere will be
referred to as the "City" and Indian River County, Florida will be referred to as the "County" .
1 . CONFLICT : This Addendum shall and does hereby constitute an integral part of the above-
referenced Real Property Lease Agreement . All terms , conditions and provisions of the said
Lease Agreement are hereby ratified and confirmed except to the extent they may be
inconsistent herewith. In the event of a conflict between the terms of this Addendum and
the terms of the Lease Agreement, this Addendum shall prevail .
2 . COUNTERPARTS : This Addendum may be executed in any number of counterparts , each
of which shall be considered an original insofar as the parties hereto are concerned, but
together said counterparts shall comprise only one Lease Agreement.
3 , COMPLIANCE WITH COUNTY FIRE PROTECTION CODE : The Indian River County
Department of Emergency Services , Fire Prevention and Life Safety Bureau (hereinafter
referred to as the "Bureau") has recommended approval of the temporary use of the kitchen
on the first floor of the Old Fellsmere School, subject to the conditions contained in the
Memorandum dated December 1 , 2004 attached hereto as Attachment 2 , and by this
reference made a part of the Lease Agreement . The use of the kitchen (Frog Leg Kitchen)
shall comply with the applicable County Fire Protection Codes as determined by the Bureau,
which compliance must be obtained before the Frog Leg Kitchen may be used for the 2005
Festival .
4 . LIMITATION ON USE OF THE OLD SCHOOL : As set forth in Attachment 1 ,
subparagraph E to the Lease Agreement, the only area within the Old Fellsmere School
Building being leased to the Lessee is the "Frog Leg Kitchen" located on the Northern part
of the basement (first floor) . There shall be no tours or any other use whatsoever allowed
art
other of the Old Fellsmere School Building.
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6
LESSOR :
r � o
CITY OF FELLSMERE, FLORIDA
o a
w
SEI: A , B
bert C er, Mayor
At Dated : ��o �
Deborah C . Krages, City Cler
h:
1 }
INDIAN RIVER COLTNTY� ORIDA
r
�r
By:
Arthur R . Neuberg . , Chai
a
ATTEST : Dated : 12/7/200 j3CC � "apj*0'v,`&.1
APPROVECk AS 70 . FORM
;ArNGAL1$' UFFICIEpjG*
Clerk of the Circuit Court
MARIAN E . FE L
ASSISTANT COUNTY ATTORNEY
LESSEE :
FELLSMERE FROG LEG FESTIVAL, INC .
By:
" SEAL"
ggi a ons, President
Dated : /a� - 0!701 - 6v
ATTEST :
Secretary
2
12101 / 2004 16 : 34 7725694317 IRC COUNTY ATTORNEY PAGE 03
MEMORANDUM
rtiy Indian River County
Department of Emergency Services
xp?ir,
t+' Fire Prevention & Life Safety Bureau
( 772 ) 562-2028
To : Tom Frame , Director
General Services
From : Dale Justice , Bureau Chief
Date : December 1 , 2004
Subject: 2005 Fellsmere Frog Leg Festival — Cooking facility
Per our conversation on December 1 , 2005 we will approve the January
2005 temporary use of the kitchen on the first floor of the old Fellsmere
School if the following conditions are met . This approval is conditional and
does not fulfill requirements for fire protection in the rest of the building . Full
requirements for compliance with the Florida Fire Prevention code and fire
protection will be based on an existing building remodel plan review .
2005 conditions .
1 . Installation of a permitted commercial hood suppression system .
This includes the timely submittal of required county permits and
construction documents for both the suppression system and the hood
system . Review of the submitted suppression system and hood system
will be expedited in order to allow installation time . With only 5 to 6 weeks
before the event , we will need to review, inspect and test the system prior
to the January 2005 Frogleg Festival . See attached excerpt from the
Florida Fire Prevention code ( NFPA 101 and NFPA 96)
2 . The upper two floors are sealed for public access . This building
appears to be under construction and Is an extra fire hazard . The building
has been opened to construction and may contain unsealed penetrations
where fire may rapidly travel . In addition the secondary means of egress
that existed in the form of two steel exterior stairs were removed . So no
secondary means of escape exist for persons inside the building .
If you have any questions feel free to call .
Attachment : NFPA 1014 . 2 . 3 Florida Fire Prevention code & NFPA 96 1 . 1
ATTACHMENT 2
Page 1 of 3
BUILDING SERVICE AND FIRE PROTECTION EQUIPMENT 10145
(' Chapter 9 BUILDING SERVICE AND FIRE to confine smoke to the general area of fire origin and snatn �
• ' 4 PROTECTION EQUIPMENT twin use of the means of egress system. d:
SECTION 9. 1 UTUXIIES SECTION 9.4 ELEVATORS, ESCAIyATORS,
AND CONVEYORS
j 9. 1. 1 Gas. Equipment using gas 4 1 . and related gas piping shall
be in accordance with NFPA 54, National Fiul Gas C&k or 9.4. 1 General. An, elevator, other than an elevator in accor-
NFPA 58, Liguefted" ,et akum; Gas CodA unless existing installs- dance with 7. 2.18, shall not :be considered a component in a
tions, which shall be permitted .to be 'continued in service, sub : required means of"egress but shalt be permitted as a compo
-
ch
t to approval by the authority having jurisdiction, nent in an accessible rneatis 'of egress,
9.1.2 Electric. Electrical wiring and equipment shall be in - 9.4.2 CodeCompliance.
accordance with NEPA 70, NationaMedrical Code, unless exist- 9.4.2. 1 Except as modified , herein, new elevators, escalators,
ing installations, which shall bepermitted to be continued in dumbwaiters, and moving walks shall be in accordance with
service, subject to approval by the authority having junsdicft the requirements of ASME/ANSI A17. 1 , Safety Code forEleva-
tion, tors and Escalators.
t 9.145 Emergency Generators* Emergenry generators, where 9.4:2,2 Except as modified herein, existing.; elevators, escala-
required for" comp1ince with this "Code, shall be tested and tors, ' dumbwaiters, and moving walks shall conform to the
maintained' in accordance with NFPA 110, Standard for Emer requirements of ASME/ANSI Al7. 3 Safety Code forExistingEle-
;;atscy a»d"Std»i16y Pds Syslert�s. . vaton and Escalators
9.1 .4 Stored electrical energy systems shall be maintained in 9.4.3 Fire Fighters' Service:
accordance with NFFA 111 , 5ta4dard on Stared Electrical Energy
Emergency and.Stand p Power *terns 9 .4.3. 1 All new elevators shall conform to the Fire Fighters'
Service Requirements of ASME/ANSI Al 7. 1 , :Safety Code forEle-
SECTION 9.2 :HEATING, VENTMATING, AND vatorsandEscalators.
AiIR GONDITI ONING 9.4.3,2 All existing elevators having a travel distance of 25 £t
9.2:1 Air Conditionuhg, IEieatiing, Ventilating Ductwork, and (7.6 m) or more above or below the level that best serves the
RelatedEquipment A. it conditioning, " heating, ventilating needs of ei»ergenty personnel for fire fighting or rescue pur-
ductwork, and related equipment shall be in accordance with poses shall conforni to the Fire Fighters ' ServiceRequire-
NFPA 90A, S&ndard for tfu rtstallation of AhuCvnditiarti and ments of ASME/ANSI A17. 3 tafety C� Jor Ming Elevators
Ventilating Systems, or ,NFPA 9l1B, Standerrd for the Installation of and Escalators
Warm Air Heating and AirConditioning Systems, as applicable, 9,4.4 Number of Cars. The number of elevator cars permit
unless existing installations, which shall be permitted to be ted in a hoistway shall be in accordance with 812.5.9.
continued in service; subject to approval by the authority haw
ing jurisdiction . 9.4:5* Elevator Maclaine Rooms. Elevator machine rooms
that contain solid-state equipment for elevators, other than
9.2.2 Ventilating or #eatrPr6ducing Equipment. Ventilating existing elevators, having a travel distance exceeding 50 ft ( 15
or beak producing euipment ,shall be in accordance with m) above the level ofexit discharge or exceeding 30 f3 '(9. 1 m)
NFPA91 , 5tartcGirdfor ,zTiaust;4sp risfdrAirConveyirtgifT. "Pors, below the level of exit discharge shall' be provided with index
Casgs, Mists, and Ncornbustible Particnalate Solids NEPA 211 , pendent ventilation or air conditioning systems required to
Standard for Chimneys, F"sr lacer, Vents, and Solid F44 Burning maintain temperature during fire fighters' service operation
Appliances; NEPA $1 , 15tan rd for the XnskWation" of Oill3urhing for elevator operation (see 9. 4.4 and 9. 4.5). Tlie operatingtent-
EStiipi enc; " Nl?I'A 5`4,j" . WiDnal: 1 X tars Godot or NFPA 7Q perature shall be established by the elevator equipment man
Nat(oital Eletxrical Code, as applicable, unless existing installa- ufacturer's specificat ons. When standby power is connected
tions, which shall be perinittetl to 15e "continued Yn service, sirb to the elevator, the machine room ventilation or airconditott-
jeer to approval by the authority having jurisdiction.
in shall be connected to standby power.
j 9.2,3 " Goma►esciai Capkia lrquipment. Commercial cooking 9,446► Elevator Testing. . Elevators shall be subject to routine
J equipment sh811 be " lrti atcbrtlance with NFPA 9$; Standard for and periodic inspections and tests as specified in ASME/ANSJ
Ventilation Control and Fire nofCommercial
PmOdioCookingCpera- A17.1 , Safety Cotte for Elevluors and Escalators. All elevators
tions, unless existing it4stallations, which shall be permitted to equipped with fire fighter service in accordance with 9.4.4 and
be continued in service, subject to approval by the authority 9.4.5' shall be. subject . to , a monthly operation with a written
havingjurisdction. record of the Findings made and kept on the premises as
9.2;4 Ventilating Systems in Laboratories U1 .sing Client required by ASME/ANSI A17. 1, Saftty Code for Elevators aril
cats Ventilatingsystemsinlaboratoriesusingchemicalsshat] Escalators.
be in accordance C z rr , 45, Standartt on Fran Protection for 9.4.7' Openings. Conveyots, elevators, dumbwaiters and
LaG"aratarrr3 t7sing als, or NEPA` 99, Standard! for Health pneumatic conveyors serving various stories of a building shall
Carefaciliaes, as appropriate,
not open town exit.
SECTION 9.$ " SMOKE CONTROL SECTION 9.5 RI�BBfSIi" iG1lIt1TES, INCINERATORS,
9.3. 1* General. Srnoke control systems, where required or. AND 1AU D.RYC.II S
l permitted byChapters+ l l through 42, shall have an approved 9.5. 1 Enclosure, Rubbish chutes and laundry chutes shall be
maintenance and testing program to ensure operational separately enclosed by walls or partitions in accordance with -
integtity. T'ht.purpose of such smtoke control systems shall be the provisions of Section $.Y. Inlet openings serving ' chutes
PL
L1 . Florliia chooses;; •-� = FbHda addktona '!= Floridaideletlone; '8R Broward"Catnty" exception 2CK1() Edttfon
P3g2 £ ;;
96-4 VENTILATION CONTROL AND FIRE PROTECIION OF COMMERCIAL COOKING OPERATIONS
NFPA 96 Authority Having Jurisdiction.* The organization, office,
Standard for or individual responsible for approving equipment, aninstalla-
tion, or a procedure.
Ventilation Controland Fife Protection ofAutomatic. operating by its own mechanism when actu-
Commercial Cooldng Operations ated by some impersonal influence; such as a change in
current, strength , pressure, temperature , or mechanical con-
1998 )edition figuration.
NOTICEBaffle Plate. An object placed in or near an appliance to
An asterisk (*) following the number or letter des change the direction , or to retard the flow, of air, air—fuel
ignating a paragraph indicates that explanatory material on mixtures, or flue gases.
the paragraph can be found in Appendix A. m
Information on referenced publications can be found in I Clas9ified. See Listed.
Chapter 12 and Appendix B,
Clearly Identified. Capable of being recognized by a per-
son of normalvision without causing uncertainty and indeci-
Chapter 1 General siveness about the location or operating process of the
identified item.
-l * Scope, Closed Combustible Construction:$ Combustible build-
1-1 . 1 This edition of NFPA 96 protudes the minimum fire ing construction including walls, structural framing, roofs,
safety requirements (preventative and operative) related to roof ceilings, floors, and floor ceiling assemblies continuously
die design, installation, opertition, inspection, and mainte- enclosing a grease duct on four sides where one or more sides
nance of all .public and private cooking operations except for require protection per 1-3 .2.
single-family residential usages These requirements include, Combustible Material. Materiat subject to an increase in
but are not limited to, all manner of cooking equipment, combustibility or flame spread rating beyond die limits estab
exhaust hoods, grease removal devices, exhaust ductwork, ex lished in the definition of Limited-Combustible.
haust fans, dampers; fire-extinguishing equipment, and all
other auxiliary or ancillary components or systems that are Concealed Spaces, That portion (s) of a building behind
involved in tine capture, containment, and control of grease- walls, over suspended ceilings, in pipe chases, attics, and
laden cooking effluent. elsewhere whose size might lnormally range from l'-Win.
2 .1 .2 The provisions of this standard` areconsidered Hetes (44.45-mm) stud spaces to 8-ft (Z44-m) interstitial truss spaces
sary to providea reasonable level of protection from. loss and that might contain combustible such as building
P structural members, thermal and/or electrical insulation, and
of life and property from fire ,and explosion. They, .reflect ducting. Such spaces have sometimes been used as M7AC
conditions and the state of the art prevalent at the time the plenum chambers,
standard was issued. This standard is intended to be applied
as a united wboie. It cannot provide safe design and operation Continuous Enclosure. A recognized architectural or me-
if parts of it are not enforced o are arbitratrily deleted in any chanicai component of a building having a fire resistance
applications. The authority havi: ig jurisdiction shall determine dating as required for the structure and whose purpose is
compliance with this standard a{nd authorize equivalent devia- to enclose the vapor removal duct For its full length. to its
tions from it in all applicationa. termination point outside the structure without any portion
t-2 Def"rnitions, of the enclosure having a fire resistance rating less than the
required value.
IAccess Panel. cl closure device used to cover an opening Continuous Weld.* A metal joining method that produces
into a duct, an enclosure, equipment, or an appurtenance. a product without visible interruption or variation in aali
Air Intakes. An opening in ' a building!,s envelope whose For the purpose of the definition , it specifically includes the
purpose is to allow outside air to be drawn into the structure exhaust compartment of hoods and welded joints of exhaust
to replace inside air that is removed b.y exhaust systems or to ducts, yet specifically does not include filter support: frames
improve the quality of the inside air by providing a source of or appendages ' inside hoods.
air having a lower concentration of odors, suspended particles, Dampen p valve or plate widrin . a duct or ,its terminalor heating content com
ponents for controlling draft or the flow of gases, includ,
Air Pollution Controt Devices. Equipmentt, and devices ing air,
used g air for the purpose of cleaning passing through them
or by them in such a manner as to reduce or remove the Detection Devices. Electrical, pneumatic, thermal, me
I
contained therein. Chanlcal, or optical sensing instruments; or subcomponents
of such instruments, whose purpose is to cause an automatics'
Appliance Flue Outlet, The opening or openings in a action upon the occurrence of some preselected event In the
cooking device where vapors, combustion gases, or both leave context of this document, the event in question could be
the cooking device. There might or might. not be ductwork excessive temperature or flame, and the action could be the
attached to this opening, operation of a fire-extinguishing system.
Approved: * Acceptable to the authority having jurisdic- Dips: Depression or cuplike placesin horizontal duct runs
tion. in which liquids could' accumulate .
Appurtenance. An accessory' or a subordinate part that Discharge. The final portion of a duct or pipe where the
enables the primary device to perform or improve its intended product being conveyed is emptied or released from confine- �..w
function, ment; the termination point of die pipe or duct.
1998 Edition Page 3 of 3