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HomeMy WebLinkAbout2005-330 e REAL PROPERTY LEASE AGREEMENT This Lease made this 4th day of October , 2005 , between the City of Fellsmere , Florida, 21 South Cypress Street, Fellsmere , Florida 32948 , Indian River County, Florida, 1840 25 `h 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 , 2005 and end on January 31 , 2006 , 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 , 2005 . The rent shall be payable to the Lessor at such other place as the Lessor may designate . 3 . CARE OF 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 2 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 . ASSIGNMENT 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 . ATTORNEY ' 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 . 3 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 Avenue open to the public from South Broadway Street to Cypress Street . LESSOR : CITY OF FE SM E . FLORIDA " SEAL" By : * 2. ` Jo A . McC nts , Mayor AT Dated : 1S �j 7S y : oe Deborah C . Krages , City Clerk 4 INDIAN RIVER COUNTY , FLORIDA By : Ao is,: ( Thomas S . Lowther, Chairman ATTEST: Dated : October 4 , 2005 y' , APPROVED AS TO FORM ,'_- Clerk of the Circuit ' Co rt A GAL SUFFICIENCY MAR 'A . _ - � ASSISTANT COUNTY ATTORNEY > .. _ LESSEE : FELLSMERE FROG LEG FESTIVAL, INC . 4By : / " SEAL" gfijesammons , President Dated : Q7 Vf zz�j ATTEST : By :� Secretary Indian River Cl Approvtd aIe Admin, 9 ar Legal ? udge \ Z7j Risk Mgr . pq • A7 •o5 5 ATTACHMENT 1 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 of Lot 18 through the South '/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 '/2 of Lot 14 and South '/2 of Lot 15 , Block 96 . D . Lots 34 through 37 , Block 97 and the NW '/2 of Lots 38 and 39 , Block 97 — Municipal Parking lot , excluding the NE %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 FFLF , Inc. shall have the exclusive use of the Frog Leg Kitchen during the term of the Lease . F . The North '/2 of Lot 22 , Lots 23 and 24 and the South % 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 19 , 2006 , between the hours of 5 : 00 p . m . and 7 : 00 a . m . on Friday, January 20 , 2006 and from 5 : 00 p . m . on Friday , January 20 , 2006 to 7 : 00 a . m . , on Monday, January 23 , 2006 . FFLF , 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 . 9 ADDENDUM "A" TO REAL PROPERTY LEASE AGREEMENT In reference to the Real Property Lease Agreement dated the 4th day of October , 2005 (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" . I . 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 . II . 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 . III . 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 previously 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 2006 Festival . IV . LIMITATION ON USE OF THE OLD SCHOOL : As set forth in Attachment I , 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 alloweJ in any other part of the Old Fellsmere School Building . LESSOR : CITY OF FELL E , FLORIDA " SEAL" By : e-,a 22c: �- oh�}r cCants, Mayor ATTEST : Dated : By - Deborah C . Krages , City Clerk INDIAN RIVER COUNTY , FLORIDA By: ,! , CA Thomas S . Lowther, Chairman ATTEST : Dated : October 4 , 2005 By' ` � ` � / APPROVED AS TO FORM Clerk of the".C` rcuit C rtl /ANDALSUFFIGIENSs T y- ' COUNTY ATTORNEY LESSEE : FELLSMERE FROG LEG FESTIVAL , INC . By : " SEAL" jaggVSaff mons , President Dated : ATTEST : B Secretary Indian Rlvsr C Aaproved Date Admin. 7 •� 9 •oS Legal 93udgel Dept . / Risk Mgr . a - 7 -v5 f LV . f.LXt.J ". ' tlJl 1 I)r,�r 4j�. 1 1 1 vl I 1_LI ..A ILI \� i. w mow. • . -- - - 1 N . w� 1 . 4 12/ trLuu� iLP 34 �ORn13A>a1K 1 Indian River County E)W Depntartmeof Emergency Services Fire Prevention & Life feSafety Bureau (772) 562w2(128 i To: Tom Frame, Director � General Services From: Dale Justice. Bureau Chief Date : December 1 . 2004 Subject: 2005 Felismere Frog Leg Fes"Ifva — Cooldng facility per our convwsaton on December 11 2005 we will approve the January 2005 temporary use of the kitchen on the first floor of the old Felismere School If the hollowing conditions are met. This approval is conditional and does not fulflil 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 pian review . 2005 conditions. 1 . Installation of a penmitted commercial hood suppression system. This includes the timet' submittal of required county permits and construction documents for bath the suppression system and the hood system . Review of the submitted suppression system and hood system will be expedited in order to allow installalion 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 t=ire prevention code (NFPA 101 and NFPA 96) 2 . The upper two floss are sealed for public access. This building appears to be under aonstructlon and Is an extra fire hazard. The building has been opened to consteuction and may contain unseated 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 exit for persons inside the bunding . If you have arty questions feel free to call , Attachment: NFPA 101A2. 3 Florida Fre Prevention code & NFPA 961 . 1 ATTAjCWMENT 2 Page 1 of 3 xr . co . Grxr.� ti • tom t, t t t yr r ���a n=r<r_ I ,v . u..�-+ I . -. 1 664vW1nt =O;i GO1!i'iWC+' EI l U PWXiE s=ON,OJ+ IPaUM>:RWL 0041pNG O 'i MOVS on Ila S6 Atuhori� I3atip8 ` ' 'lar engpnn3z11#l01`4 off. Stt � ortudivi4uAi �sPoare�eforpppF�i�.t,tlttap�nt. auine�CmiT1a• ; md4rdt dopa G1* a. plat v, Ventilation Qmtrol. and Fire Protection of MttzoMadc,• 4pumsipg by is v4 m Sncciuoifm when om�e�+aIN, Coe ' �°� by smvme *Werseattal' Ofte4ce, suet as a chWQ in • ttirriynt, streno, plre mur�e', .tetpper we, or cntcllaiticA! Cow ] Sa8 Edom figtaration. I • ' • l;at io POWr ' ;An oNCM'pioeed in apt near ap applianc e; tp { 1i4r1C.k J1n a add Q"3 fetlownng iitx bfurnber a 1e[[ar der 4wge the dimcdon, or to mtwd Mc Saw, of sdr. Ajhrrf ri 4aaTof Wo urea, or Avx ,gtseq. Me p**Vapb 'p►n be fopod' in 4%"ondbi A• JnOrMaft . an rcCst v=d putaiica ww mn. be foopd in Q► ed. eke liisce$•• ctpipmr 1$ and eppernla3c 13. ; ' ` ' Qtb!HT Idem, Capable ui"Wrlig�niwed by a pear- sea of gor[aaI vmsioa wiQtogt h my and ineteci- �utpttn I taeaee[gll *q"= sloth • the To(wion' or tY,pet URT proeesS of the WeAti4ed item. - ;, 1.1+ , Scope: paoea Combpamle Goo ¢an-R C*irnsdbie biota• ' 161 11 Ajp3 etlftilQtF pi �4rdRt i [bC u[inintum fire ' ; U j, COPS time )OA inewil[$ "KE itr}SFcural' boami gr 1�sr etafery rsgt,irestsene, {pretreanativd and a#partitive)• related m t rWee' ' O° a• a"¢ Dilor. cq�iq�, a ►bliesePntinuawly the da4ga. bmtzllatipty clwrdtwno bve�ori, and %Mnte. dtmrloamng a guiseduct on few aideat ore Ossa oo,ttlorG Sider • , ' ' , nteuee of oA olio tl; o d foe itquirG pj gtetfiaiu per ]$.R p[t baa ,Pry �kbas � �t• „ ' single4faraity rest$&poaj unge. Thoma requirements include. . •Combuth"WI& WateriA • '1Mtattroki aab�jeet t4 [Ira increa in it I but are net limited ser• at tnanpe r of co9king e*Le*seam; ;on*pW` Wq or OaMe spread tad og bsfoad the I1Wh cSfaF> ' exbRust hinds, gzease r'e'moval darvicca; t d wbVorlc, e* nahed in the dearlftiop, of lAnoted-CombustiNe. Hamot fans. dap.! e:txv 1h . triptnegr, and all other atutiiiary or ancsituy aomwneuts or t11At at+e C"=• 't.a gpp� ' '''� p� (A) pf a yuO�S babied oaalfttgs, it: pope rim "to in the srmpcUM NeOPPinmfpt, ;44 control ofV"e- vr�Hs, over suspended a ltsiatpeai and e ls4v+ltore whAmx sate pnCAt horYtmaliyc range hrom in. lad" ooakir}g edtlpe d[t. {'�rl�'A►dne) scud elgaceeto•�•ft {drktrm�, irttsr$dpat avma ' 'l^l.�' The premum of 't#iNat 44*4 are eoruiur} +ed';aeeet► Una 4M g awl contain 00"bualswerr►bee4* xUeh pabt di g awry w provides reawnpmWe lev4t of prgd,edon i'roln Jos; ,itYyegrnt rpee►1ags, .cheratal aati/or. *cmic-s1 mala anon, and of life *4 PrOPW Am" Pae ,and eexpkision. Tom% refkect detciipg. Sac1i sgpoea htapr< soimibeen, turd a► >ZNAC �. condidens and the stew of the antrt'WaTemt at the byte dit • plegttsrt ,hemline. . a;atttSTard wens issued. This asutdv ' lis +auasded to b4"A�►plied Ceeeatima loareios�ic. • A itecogs°s<e d atch'tGecpanml or mo- a$ p tutiscOw }ole. 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N (l,'b I 1 �.r-.1 � wJ . . .+._.w.._...._..• _ • r r I , 111 •• : • , y, ' • '�y�• 1 •Mf•J•..•�, , Iy I , , 1, Y IA • 1 y+Mti+' /'Y\ rte .• a✓. .�. ,+.Ae.:, , to It r 1 �� w•-T�•�f••�•�•�Ar/ r Ir 1 • 1 Y r r 1 i MO 14, \ , as's I I% ' 1 4 .. var...--.�... ...•... ...�—+lot. • , 4 4444. _ ••�.� t , . ' i • y ♦ r 1411 . 111 � ' •1 ' ' . + FROG LEG FESTIVAL CONTRACT This contract is made on this 4th day of October , 2005 , between the Fellsmere Frog Leg Festival, Inc . ( hereinafter referred 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 bound by the following terms : 1 . 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 term of this Contract shall be from November 18 , 2005 to March 31 , 2006 . FFLF, Inc . shall have the right to terminate this agreement at any time prior to December 1 , 2005 , upon five ( 5 ) days written notice to the City . 3 . DISTRIBUTION 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 , 2006 . ( 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 ' 2 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 , 2005 , and run through January 31 , 2006 . 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 , 2006 provide Accident, Medical and Disability and by December 1 , 2005 , 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. B . 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 , 2006 and run through January 31 , 2006 . 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 , 2005 , an endorsement to the general liability insurance policy shall be delivered to the City and the County and by January 12 , 2006 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 3 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 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 City or 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 willfull 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 . RESTORATION 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 . 4 11 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 control of 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 5 ME III 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 : Jason R. Nunemaker City Manager City of Fellsmere 21 S . Cypress Street Fellsmere, FL 3298 - 6714 with a copy to the City's Attorney: Warren W . Dill, Esq . Dill 8I Evans, P . L . 1565 U . S . Highway 1 Sebastian, FL 32958 6 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, II , 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 FEL SM E, FLORIDA BY : John A . McCants, Mayor ATTEST : ( S EAL ) Deborah C . Krages, City Clerk 4 INDIj COUNTY, FLORIDA Bye• S � ATTEST : APPROYEDhOff9h FORM � r A �aALSUFFICIENCY - r • �r � � . J �- p .�f . ,��, { � ��.. �• ( SEA Clerk�,o! ,,t� he rc it Court AAA13 _ ! . A"00 ASSISTANT COUNTY ATTORNEY FELLSMERE FROG EG FESTIVAL, INC . r BY : W906affirnons, President AT ST . Q ( SEAL ) Secretary FLFCONTRACT. DOC Indian River Ca AflD ' oved Da Admlft, a pr � p , a ! l _ 5udgel Dept. L / I 37 . vS ' 8 EXHIBIT A ATTACHMENT 1 SITE DESCRIPTION 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 of Lot 18 through the South % of Lot 21 , Block 96 . C . Vehicular access to Block 96 is prohibited except for designated driveway access over the sidewalk on the North %2 of Lot 14 and South '/2 of Lot 15 , Block 96 . D . Lots 34 through 37 , Block 97 and the NW '/2 of Lots 38 and 39 , Block 97 — Municipal Parking lot , excluding the NE %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 FFLF , Inc. shall have the exclusive use of the Frog Leg Kitchen during the term of the Lease . F . The North %2 of Lot 22 , Lots 23 and 24 and the South % 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 19 , 2006 , between the hours of 5 : 00 p . m . and 7 : 00 a . m . on Friday , January 20 , 2006 and from 5 : 00 p . m . on Friday, January 20 , 2006 to 7 : 00 a . m . , on Monday, January 23 , 2006 . FFLF , 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 . RESOLUTION No . 05 -V 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, 2006 ; 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 REM Property Lease Agreement, attached hereto and by this reference made a part hereof, for use in putting on the 2006 Fellsmere Frog Leg Festival ; and WHEREAS, in order to put on the 2006 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 1 . 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 18 , 2005 , and end on January 31 , 2006, subject to the terms of said Lease and the Frog Leg Festival Contract entered into along with said Lease . SECTION 5 . 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 . T oregoing 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 : 2 Councilman Michael E . Barone Councilman Joel Tyson Councilwoman Sara ) . Savage Councilman Fernando Herrera Mayor John A . McCants The May thereupon declared this Resolution duly passed and adopted this day of , 2005 . CITY OF F ERE, FLORIDA 6-e,*4 000052 Jo A . McCants, Mayor Attest. �< ( SEAL ) eborah C . Krages, City Clek-.�) R-05-V .doc 3