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HomeMy WebLinkAboutRotary Club of Winter Springs Mardi Gras Special Event Agreement -2009 03 10CITY OF WINTER SPRINGS, FLORIDA MARDI GRAS SPECIAL EVENT AGREEMENT THIS MARDI GRAS SPECIAL EVENT AGREEMENT (``Agreement'') ismade and entered into as of the ~0~"` day of /Yt~.t.c i~ , 2009, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation, and the ROTARY CLUB OF WINTER SPRINGS, INC., a Nonprofit Organization, whose address is Post Office Box X95235, Winter Springs, Florida ("Contractor''). WITNESSETH: WHEREAS, City of Winter Springs desires to hold a Mardi Gras special event within the Town Center; and WHEREAS, Contractor desires to contract with City to assist in coordinating and producing the Mardi Gras special event under the terms and conditions of this Agreement; and WHEREAS, Contractor represents and warrants to City that it has the personnel, tools, materials, and experience to provide the services as provided herein. NOW THEREFORE, in consideration of the provisions contained in this Agreement, and other good and valuable consideration to 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 Pro~~isions: 2.1 Definitions. a) "Agreement" or "Contract'' shall mean this Agreement between City and Contractor regarding the Special Event services stated herein. b) "Advertise" shall mean the act of publicly announcing or calling attention to the Special Event and shall include, but not be limited to, the distribution of handbills or mass mailings, the use of outdoor advertising and announcements by billboazd,poster, radio, television, or newspapers. c) "City Manager'' shall mean the City Manager of Winter Springs, Florida, or his designee. Mardi Gras Special Event Agreement City of Winter Springs, Florida /Winter Springs Rotary Page 1 of 9 d) "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. e) "Public Records" is as described in Section 119.011(1), Florida Statutes. f) "City'' shall mean the City of Winter Springs, a Florida Municipal Corporation and it employees, agents, and contractors. g) "Contractor" shall mean the Rotary Club of Winter Springs, a non- profit corporation organized under the laws of Florida and its employees, agents, and contractors. h) "Special Event'' shall mean the multi day Mardi Gras special event which will occur within the Winter Springs Town Center and the Winter Springs Senior Center on March 13, 14, and 1 ~, 2009. 2.2 Engagement. City hereby engages Contractor and Contractor agrees to perform the services outlined in this Agreement. 3.0 Contractors Responsibilities. The Contractor shall be responsible for performing the following: 3.1 Contractor shall use its best effort to Advertise the Special Event. 3.2 Contractor shall be responsible for coordinating, organizing, permitting, and managing, and if necessary contracting for, the individual programmed events which aze scheduled for the Special Event, as more specifically identified on Mardi Gras Event Time Line attached hereto as Exhibit "A," and fully incorporated herein by this reference. However, fireworks shall be excluded from the list of events. Contractor agrees to keep the City fully informed regarding the status of said individual programmed events and coordinate said events with the City to the extent that said events require the use of City property and rights-of--way. 3.3 To the extent the Contractor is required to contract with a third party to hold an individual programmed event (e.g. carnival company), Contractor shall fully cooperate with the City to have the City named as an additional named insured on the third parties liability insurance policies. The parties agree that Contractor has contracted with S & T Magic Enterprises for carnival attractions. 3.4 Contractor shall obtain third party sponsors for the Special Event to help defray Contractor's costs for the Special Event. Mardi Gras Special Event Agreement City of Winter Springs. Florida /Winter Springs Rotary Page 2 of 9 3.5 To the extent required, Contractor shall obtain all local, state, and federal permits necessary to hold the Special Event. In the event that Contractor is required to obtain any government permits to perform its obligations under this Agreement, Contractor will obtain such permits with the cooperation of the City. City shall waive all City permit fees that would be charged to Contractor for the Special Event. 3.6 Contractor shall offer beer sales near Magnolia fountain pursuant to the terms and conditions of a state alcohol license. 3.7 Contractor will participate and assist the City with the coordination of the Mardi Gras Parade. 4.0 City Responsibilities. The City shall be responsible for performing the following: 4.1 At the levels deemed necessary by the City, City shall be responsible for providing police and public works services for the Special Event. 4.2 City shall be responsible for closing the public roads necessary to hold the Special Event. 4.3 City shall provide the use of the Winter Springs Senior Center for purposes of holding the Gala to be held on March 14, 2009. The fee for the rental of the Senior Center shall be waived. 4.4 City reserves the right to contract for a firework display. If the City chooses to provide a fireworks display, the City will coordinate the display with the Contractor. 4.5 City shall use its best effort to Advertise the Special Event. 4.6 City will coordinate entertainment at Magnolia Park and Tree Swallow Road. 4.7 City will coordinate the Mardi Gras Parade. 4.8 City shall use its best efforts to secure the use of the property for the carnival. 5.0 Compensation; Expenses; Carnival Gate Receipts. 5.1 To Contractor. Contractor's sole compensation for all services rendered by Contractor under this Agreement shall be derived from the sale of beer, sponsorships, and a percentage of gate receipts from the carnival as more specifically provided hereunder. A4ardi Gras Special Event Agreement Cit<~ of W""inter Springs, Florida /Winter Springs Rotary Page 3 of 9 5.2 Contractor Expenses. Unless otherwise provided in this Agreement or listed as a City responsibility under Paragraph 4.0, Contractor shall pay all costs and expenses associated with the Special Event, and agrees not to look towards the City for any compensation or reimbursement for expenses incurred by Contractor under this Agreement. 5.3 Carnival Ride Receipts. Contractor represents and warrants that they have contractually secured, with S &T Magic Enterprises, to receive a minimum of twenty percent (20%) of the gross ticket receipts for the Carnival Rides present at the March 13-15, 2009 Mardi Gras Carnival (herein referred to as Contractor's Carnival Ride Proceeds). Contractor agrees that the Contractor's Camival Ride Proceeds will be distributed in the following manner: a) For City's police and public works overtime expenses up to $2,500, the Contractor's Carnival ride Proceeds will reimburse the city for one hundred percent (100%) of the police and public works overtime expenses, to the extent the Contractor's Carnival ride Proceeds will cover all or part of the overtime expenses. All remaining Contractor's Carnival Ride Proceeds will be distributed in equal shares to the Contractor and the City. All other Contractor proceeds from the Carnival and any other venue are not included in this sharing agreement. 6.0 Due Diligence. Contractor acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the services required hereunder, the availability of materials and labor, the cost thereof, the requirements to obtain necessary to complete the services within the time set forth herein. The Contractor warrants unto the City that it has the competence and abilities to carefully, professionally, and faithfully complete the services in the manner and within the time limits proscribed herein. The Contractor will perform the services with due and reasonable diligence consistent with sound professional and labor practices. 7.0 Miscellaneous Provisions. 7.1 Time is of the Essence. Time is of the essence of this Agreement. 7.2 No Assignment. This Agreement shall not be assigned or transferred. 7.3 Third Party Rights. Except for the express rights granted under this Agreement to the Winter Springs Rotary Club, this Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights'on behalf of any third parties. 7.4 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any Mazdi Gras Special Event Agreement Cit•~ of Winter Sprints, Florida /Winter Springs Rotary Page 4 of 9 further act(s) and execute and deliver any further documents which maybe necessary or desirable in order to carry out the purposes and intentions of this Agreement. 7.5 Legal Representation. The parties acknowledge that Brown, Garganese, Weiss, and D'Agresta, P.A., and other attorneys therein, have acted as counsel for City in connection with this Agreement and the transactions contemplated herein, and has not given legal advice to any party hereto other than City. 7.6 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void, or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 7.7 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial of courts located in Seminole County, Florida, and any objections as to jurisdiction or venue in such courts being expressly waived. 7.8 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from other 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. 7.9 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 right, unless otherwise expressly provided herein. 7.10 Notices. Any notice, request, instruction, or other document to be given a 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 prepaid, 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 acknowledge 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): Mardi Gras Special Event Agreement City of winter Springs, Florida /Winter Sprints Rotary Page 5 of 9 To City of Winter Springs: City Manager 1126 East S.R. 434 Winter Springs, Florida 32708 PH: (407) 327-5957 FAX: (407) 327-4753 To Contractor: Brantley Tillis PO Box 195235 Winter Springs, Florida 32708 PH: (407) 484-5461 (407) 359-1366 7.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 7.12 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 Contractor related, directly or indirectly, to this Agreement, maybe deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor 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 Contractor 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 the normal business hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 7.13 Interpretation. Both the City and the Contractor 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. 7.14 Independent Contractor. Contractor shall be considered an independent contractor under this Agreement. 8.0 Entire Agreement. This Agreement, including the Exhibit attached hereto, represents the entire and integrated Agreement between the parties and supersedes all Mardi Gras Special Event Agreement City of Winter Springs. Florida /Winter Springs Rotaq~ Page 6 of 9 prior negotiations, representations, orAgreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 9.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. 10.0 General Liability Insurance. For all services performed hereunder, the Contractor shall purchase and maintain, at its own expense, such general liability insurance, and liquor 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 services performed by Contractor under this Agreement. The insurance shall have minimum limits of coverage of $500,000.00 per occurrence combined single limit for bodily injury liability, and property damage. All insurance coverage shall be with insurer(s) approved by the City Manager and licensed by the State of Florida to engage in the business of writing insurance. The City shall be named on the foregoing insurance policies and endorsements as "additional insured." The Contractor shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of 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 Contractor in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Contractor in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. For all services performed pursuant to this Agreement and during the Special Event, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 11.0 Indemnification and Hold Harmless. For all services performed pursuant to this Agreement, the Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and City attorneys, from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative, trial; post judgment and appellate proceedings), directly or indirectly arising from the grossly negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Contractor's or Contractor's agents: (1) performance of services pursuant to this Agreement; (2) failure to properly train employees, volunteers, and agents under Contractor's control or direction; (3) failure to remit any local, state, and federal taxes due by Contractor as a result of the Special Event; (4) failure to properly plan, promote, and manage their responsibilities and obligations under this Agreement; and (5) sale of beer during the Special Event. The indemnification provided above shall obligate the Contractor to defend at its own expense or to provide for such defense; at the sole option of the City, as the case may Mardi Gras Specia] Event Agreement Cit<~ of winter Springs. Florida /Winter Springs Rotary Page 7 of 9 be, of any and all claims of liability and all suits and actions of every name and description that may be brought against City or its employees, officers, and attorneys which may result from the services under this Agreement whether the services be performed by the Contractor or anyone directly or indirectly employed or hired by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included v~~ith this indemnification provided herein, as long as said fees are reasonable. 12.0 Standard of Care. In performing its services hereunder, the Contractor shall 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. 13.0 Termination. Either party reserves the right to terminate this Agreement for the other party's substantial nonperformance of the terms and conditions of this Agreement. 14.0 Term. The Term of this Agreement shall be from the effective date until the full completion and satisfaction of the terms and conditions of this Agreement by both parties. Except that the indemnification and hold harmless in Paragraph 11.0 shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under this Agreement. 15.0 Contractor's Signatory. The undersigned individuals executing this Agreement on behalf of the parties hereby represents and warrants that he/she has the full authority to sign said Agreement and fully bind the party he/she represents to the terms and conditions set forth in this Agreement. SIGNATURE PAGE TO FOLLOW Mardi Gras Special Event Agreement Cih~ of winter Springs. Florida /Winter Springs Rotary Pase 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: CONTRACTOR: CITY OF WINTER SPRINGS, FL. THE ROTARY CLUB OF WINTER SPRINGS, INC. i By: _ By~ ~ y /in L. Sm' ,City Manager Brant. illis, President -:. ~ , Mardi Gras Special Event Agreement Cin~ of Winter Springs, Florida /Winter Springs Rotary Page 9 of 9