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HomeMy WebLinkAboutScottish American Society of Central Florida, Inc. - 2009 10 26 CITY OF WINTER SPRINGS, FLORIDA 33' ANNUAL CENTRAL FLORIDA SCOTTISH FESTIVAL and HIGHLAND GAMES PERMIT AGREEMENT THIS 33r ANNUAL CENTRAL FLORIDA SCOTTISH FESTIVAL and HIGHLAND GAMES PERMIT AGREEMENT ( "Agreement ") is made and entered into as of the At. day of October, 2009 by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation, ( "City "), and THE SCOTTISH AMERICAN SOCIETY OF CENTRAL FLORIDA, INC., a Florida Not for Profit Corporation and Federal 501(c)(3) organization ( "Permittee "). WITNESSETH: WHEREAS, Permittee desires to hold a Special Event for the benefit of the public in the interest of increasing public awareness of Scottish culture and heritage by the production of the annual Scottish Highland Games on January 16 and 17, 2010 at Central Winds Park, which is located in and owned by the City of Winter Springs, Florida; and WHEREAS, Permittee desires a permit from the City which would permit the Permittee to hold the 33r Annual Central Florida Scottish Festival and Highland Games at Central Winds Park, as permitted under this Agreement; and WHEREAS, Permittee represents and warrants that it has the personnel, tools, materials, and experience to satisfy the permit requirements set forth hereunder and to provide the Special Event as provided herein. NOW THEREFORE, in consideration of the provisions contained in this Agreement, and other good and valuable consideration in which the parties acknowledge has been received, the parties agree as follows: 1.0 Incorporation of Recitals: The foregoing recitals are true and correct and by this reference are fully incorporated into this Agreement. 2.0 General Provisions: 2.1 Definitions: (a) "Advertise" shall mean the act of publicly announcing or calling attention to the Special Event and could include, but not limited to, the distribution of handbills or mass mailings, the use of outdoor advertising and announcements by billboard, poster, radio, television or newspapers. Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 1 of 10 (b) "Agreement" or "Contract" shall mean this Agreement and all exhibits and addendums thereto between the City and Permittee regarding the Special Event permitted herein. (c) "Central Winds Park" shall mean the park owned and operated by the City, which is located within the City of Winter Springs on State Road 434 and adjacent to the Winter Springs High School and Lake Jessup. (d) "City" shall mean the City of Winter Springs, a Florida Municipal Corporation and its employees, agents and contractors. (e) "City Manager" shall mean the City Manager of the Winter Springs, Florida or his designee. (f) "Permittee" shall mean The Scottish American Society of Central Florida, Inc., a Florida Not for Profit Corporation and Federal 501(c)(3) organization, and its officers, employees, agents, and its contractors. (g) "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any party until said date. (h) "Public Records" is as described in Section 119.011(11), Florida Statutes. (i) "Special Event "shall mean the outdoor Scottish Festival and Highland Games to be held at Central Winds Park on January 16 and 17, 2010 and further described in this permit Agreement. The Special Event shall be planned, promoted, managed, and operated by the Permittee pursuant to this Agreement. 2.2 Permit. The City hereby permits the Permittee and the Permittee agrees to provide the Special Event outlined in this Agreement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 3.0 Scope of Special Event. Permittee agrees to provide the following Special Event under the following special operating conditions: 3.1 Special Event. Permittee shall Advertise, produce, plan, promote, manage and operate the Special Event in cooperation with the City. In furtherance thereof, Permittee agrees to keep the City Manager fully informed of its plan to promote, Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 2 of 10 manage, and operate the Special Event so that City can reasonably satisfy its obligations under this Agreement and reasonably address issues of public health, safety, and welfare related to the Special Event. 3.2 Food and Beverage. Permittee agrees to provide all food and beverage concessions for the Special Event. Permittee shall retain all fees and commissions from the concessions provided by Permittee. Alcoholic beverages shall be limited to beer, wine and frozen drinks, if provided. However, Permittee may allow a scotch whiskey distributor to distribute V2 ounce samples of Scottish whiskey from their assigned booth during the Special Event. 3.3 Sponsorship; Event Fees. Unless otherwise provided in this Agreement, Permittee shall retain the sole right to all sponsorships and paid fees for the Special Event. 3.4. Staging: Other Production Materials. Permittee shall provide all staging and production materials necessary to produce a high quality Special Event including, but not limited to, professional audio system, staging and stage lighting, golf carts, radios, tents, port-a -lets, security, event staff, and catering for staff. 3.5 Professional Entertainment. Permittee shall provide professional entertainment during the Special Event as deemed appropriate to a family oriented and traditional Scottish event. 3.6 City Special Event Policy. Permittee agrees to comply with the City's written Special Event policies, if any, deemed applicable to the Special Event by the City Manager. 3.7 Permits. Permittee shall obtain all local, state, and federal permits necessary to hold the Special Event and conduct any particular activities therein. City shall waive all City permit fees for the Special Event in consideration of the compensation required to be paid City under this Agreement. 3.8 Clean up. Permittee shall coordinate and monitor the pick up and disposal of garbage and other debris from the Special Event areas. 3.9 Port - - let Supplies. Permittee shall be responsible for keeping the port-a -let facilities stocked with necessary paper products. 4.0 Compensation , Expenses & Obligations. 4.1 Rental Fee. Upon both parties fully executing this Agreement, Permittee shall pay the City a field and facility rental permit fee in the amount of Six Thousand and Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 3 of 10 no /100 Dollars ($6,000.00) for the use of Central Winds Park for two (2) days. This Agreement shall only become effective upon execution of this Agreement and the payment of said fee. 4.2 Permittee Expenses. Unless otherwise provided in this Agreement, Permittee shall pay all costs and expenses necessary for the Permittee to satisfy its obligations under this Agreement including, but not limited to, City fire and police services and extra City personnel services caused by the Special Event and as deemed reasonably necessary by the City Manager, clean up of Central Winds Park and surrounding area, parking coordination, repair of damages incurred to Central Winds Park caused by the Special Event, portable restroom facilities, all necessary power at Central Winds Park to include three phase 300 -amp; single phase 100 -amp power drop at the main stage location and additional 20 -amp as needed (each of the main drops must be isolated for use on the Special Event and set -up days), and existing lighting of Central Winds Park and surrounding areas. Payment for these expenses owed to City under this provision shall be made at the conclusion of the Special Event or within ten (10) days of presentation of such expenses by City to Permittee, whichever occurs later. 4.3 City Obligations. City shall provide the following services and facilities for the Special Event: (A) use of Central Winds Park on the two (2) days of the Special Event, and shall have general access the four (4) preceding days for set -up purposes and the two (2) days following the event for load out and clean up purposes; (B) use of Central Winds Parking areas in addition to City owned parking areas at City Offices and access to parking facilities at Winter Springs High School on the day of Special Event; and (C) restroom facilities at the baseball complex. Further, the City will use its best effort to keep the Special Event cordoned off through the use of fences, ropes, and other demarcation devices, from other parts of Central Winds Park not being used for the Special Event. 5.0 Due Diligence. Permittee acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the Special Event desired hereunder, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, professional entertainment and the steps necessary to complete the Special Event within the time set forth herein. The Permittee warrants unto the City that it has the competence and abilities to carefully, professionally, and faithfully complete the Special Event in the manner and within the time limits proscribed herein. The Permittee will perform the Special Event with due and reasonable diligence consistent with sound professional and labor practices and with due and reasonable consideration to the public health, safety, and welfare. 6.0 General Miscellaneous Provisions. The following general miscellaneous provisions shall Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 4 of 10 apply to this Agreement: 6.1 Time of the Essence. The City's responsibility to make Central Winds Park available to Permittee is limited to the time periods set forth hereunder. As such, the Permittee acknowledges and agrees that time is of the essence for the completion of the Special Event to be performed under this Agreement. 6.2 Non - Business Day. In the event that any period of time as set forth in this Agreement expires or any date herein occurs on a Saturday, Sunday, holiday or other non - business day, then such date shall automatically extend to 5:00 p.m. on the next subsequent business day, excluding the day the Special Event will be held pursuant to this Agreement. 6.3 No Assignment. This Agreement shall not be assigned or transferred unless prior written consent is granted by the City Commission of Winter Springs. 6.4 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s), execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 6.5 Legal Representation. The parties acknowledge that Anthony A. Garganese, Esquire, and Brown, Garganese, Weiss and D'Agresta, P. A., and other attorneys therein, have acted as counsel for the City in connection with this Agreement and the transactions contemplated herein, and have not given legal advice to any party hereto other than the City. 6.6 Severability. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Agreement, and this Agreement shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.7 Governing Law; Venue. This Agreement shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Special Event is Seminole County. If any dispute concerning this Agreement arises under Federal law, the venue will be Orlando, Florida. Any objections to jurisdiction and venue are expressly waived. 6.8 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with the parties hereto, the prevailing party in such litigation or controversy shall, to the extent permitted by law, be entitled to recover from the other Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 5 of 10 party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. 6.9 Non Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other rights, unless otherwise expressly provided herein. 6.10 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepared, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): TO THE CITY: Mr. Kevin L. Smith City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Fl. 32708 -2799 407 - 327 -5957 (Phone) 407 - 327 -6686 (Fax) WITH A COPY TO: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802 407 - 425 -9566 (Phone) 407 - 425 -9596 (Fax) TO PERMITTEE: Mr. Woodrow Crawford, President P. O. Box 2948 Orlando, FL. 32802 -2948 (407) 841 -8831 Email: lowlandr @bellsouth.net Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 6 of 10 6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be original; but such counterparts shall together constitute but one and the same instrument. 6.12 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Permittee related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Permittee. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Permittee is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Permittee shall promptly supply copies of said Public Records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during normal business hours of the Permittee be open and freely exhibited to the City for the purpose of examination and/or audit. 6.13 Interpretation. Both the City and the Permittee have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.14 No Joint Venture. This Agreement shall not in any way be deemed to create a joint venture or principal -agent relationship between Permittee and the City. 6.15 No City Representations and Warranties; Success of Special Event. Permittee agrees and acknowledges that the City has made no representations and warranties regarding the Special Event. Permittee has assumed full responsibility for furnishing, performing, and completing the Special Event and that Permittee agrees and acknowledges the City has in no way guaranteed that the Special Event will be successful and profitable by any person's standard and belief of success and profit. 7.0 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 8.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 7 of 10 • person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement.. 9.0 General Liability Insurance. For all activities and services permitted and which occur under this Agreement, including any and all activities and services provided and performed by Permittee and by authorized participants of the Special Event, the Permittee shall purchase and maintain, at its own expense, such general liability insurance, food and liquor liability insurance and automobile liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the activities and services permitted and occurring under this Agreement, including any and all activities and services provided and performed by Permittee and by authorized participants of the Special Event. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability, property damage liability, and food and liquor liability. This shall include, but not be limited to, automobile liability of owned vehicles, hired and non -owned vehicles, and employee non - ownership. All insurance coverage shall be insurer(s) approved by the City Manager and licensed by the state of Florida to engage in business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The Permittee shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage and effect pursuant hereto, the expiration date on such policies, and the statement that no insurance under such policies will be cancelled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. The Permittee shall be solely responsible to pay any deductible, if any, relating to any claim made against the insurance coverages and policies provided under this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Permittee in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Permittee in writing thereof within thirty (30) days of the date of deliver of such certificates and endorsements to the City. For all activities and services permitted and occurring under this Agreement, including any and all activities and services provided and performed by Permittee and by authorized participants of the Special Event, the Permittee shall continuously maintain such insurance in the amount, type, and quality as required by this paragraph. 10.0 Indemnification and Hold Harmless. 10.1 For all activities and services permitted and occurring under this Agreement, including any and all activities and services provided and performed by the Permittee and by authorized participants of the Special Event, Permittee agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and attorneys Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 8 of 10 from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), which directly or indirectly arises out of, or results from any act or failure to act of the Permittee or any person authorized by the Permittee to participate in the Special Event which in any way is related to the Permittee's obligations under this Agreement, and/or the services and activities provided and performed under this Agreement. The indemnification provided above shall obligate the Permittee to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may arise or result from this Agreement. In all events, the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. 10.2 For all services provided under this Agreement, the City agrees to the fullest extent permitted by law, to indemnify and hold harmless the Permittee and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), which directly or indirectly arise out of, or result from any negligence of the City, its officers and employees. The City's liability to the Permittee under this subsection shall not include punitive damages, or interest for the period before judgment. Additionally, the City shall not be liable pursuant to this indemnity to pay a claim or judgment by any one person which exceeds the sum of $100,000.00 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the City arising out of the incident or occurrence, exceeds the sun of $200,000.00. This section 10.0 shall survive termination of this Agreement. 11.0 Standard of Care. In performing its activities and services hereunder, the Permittee will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. Permittee shall protect the public and property from any safety hazards directly or indirectly resulting from the Special Event and the authorized participants thereto. 12.0 Cancellation of Special Event. The City shall have the right to cancel the Special Event at any time in the event of an emergency, or in the event of any other occurrence requiring the cancellation of the Special Event in furtherance of the health, safety and welfare of the City, pursuant to its inherent police powers under Chapter 166, Florida Statutes. Any such cancellation shall be at the City's sole discretion, shall be without penalty to the City and shall be made by written notice to Permittee. If the Special Event is cancelled through no Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish - American Society of Central Florida, Inc. Page 9 of 10 fault of the Permittee, the City shall refund the Six Thousand and no/100 Dollars ($6,000.00) paid by Permittee under this Agreement. 13.0 Term. The term of this Agreement shall commence upon full execution of this Agreement by the parties and end at such time Permittee has fully performed all the services required by this Agreement to the complete satisfaction of the City. 14.0 Permittee's Signatory. The undersigned person executing this Agreement on behalf of Permittee hereby represents and warrants that he has the full authority to sign said Agreement for Permittee and to fully bind Permittee to the terms and conditions set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: PERMITTEE: _ -CITY OF WINTER SPRINGS, FLORIDA THE SCOTTISH - AMERICAN SOCIETY - OF CENTRAL FLORID By By 1 " k n L-., mi City Man er Woodrow ` d ip" ord, ' esident Scottish Festival and Highland Games Permit Agreement City of Winter Springs / Scottish- American Society of Central Florida, Inc. Page 10 of 10