Loading...
HomeMy WebLinkAbout2005-045 - Agreement with Highland Games, Inc for Use of E.H. Young Riverfront Park, M ' •~~~ BILL N0.2005-45 ORDINANCE N0.2005-45 AN ORDINANCE APPROVING THE FORM OF, AND AUTHORIZING THE MAYOR TO COMPLETE AND EXECUTE, AN AGREEMENT BY AND BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND HIGHLAND GAMES, INC. FOR THE USE OF E.H. YOUNG RIVERFRONT PARK WHEREAS, the City of Riverside, Missouri (the "Cit}~') has considered a proposal by, and negotiated with Highland Games, Inc. ("HGP'), for the use E.H. Young Riverfront Park in the City of Riverside, Missouri; and WHEREAS, the City and HGI have reached an agreement concerning the use of E.H. Young Riverfront Park and sponsorship of an annual event to be held at said park; NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri, as follows: Section 1. The City of Riverside shall enter into a Park Use and Event Sponsorship Agreement, to be substantially in the form attached hereto as Exhibit A, with Highland Games, Inc., whereby the City and HGI will perform certain duties and responsibilities, and the City shall allow HGI to use E.H. Young Riverfront Park for an event in June of each year from 2006 to 2008 (the "Agreement"). Section 2. The execution and delivery of the Agreement, with such additions and modifications deemed necessary by the Mayor to complete the same, is approved, and the Mayor is authorized to execute the Agreement and to take such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the City, the execution of the Agreement being conclusive evidence of such approval. Section 3. This Ordin~an~ce shall be in full force and effect from and after its passage and approval. Passed this ~/ ' day of May, 2005. ATT City Jerk Mayor 1< T n 'Tf 7 I' C~Op~I PARK USE AND EVENT SPONSORSHIP AGREEMENT IS PARK USE AGREEMENT (the "Agreement") is entered into as of the ~ ~ay of 2005, by and between The City of Riverside, Missouri, with an address of 2950 Vivion Road, Riverside, Missouri 64150 (the "City"), and Highland Games, Inc. ("HGI"), a Kansas not-for-profit corporation with an address of P.O. Box 9367, Shawnee Mission, Kansas 66201-2067, or care of David N. Johnson, 513 N.W. 44th Terrace, Kansas City, Missouri 64116-1581. WITNESSETH: WHEREAS, the City owns and operates a public park commonly known as the E.H. Young Riverfront Pazk located at 1001 NW Argosy Parkway in Riverside, Missouri (the "Pazk"); and WHEREAS, the City desires to hold or conduct activities, events, shows, gatherings and other entertainment functions at the Pazk for its citizens and those in the surrounding communities during the months of May through September, or parts thereof, and to promote tourism of the City and increased revenue for the City's businesses; and WHEREAS, HGI is a Kansas non-profit corporation established for the purpose of promoting Scottish culture and producing and promoting traditional Scottish games and festivals; and WHEREAS, HGI desires to utilize the Park to hold its annual Kansas City Scottish Highland Games (the "Event"), the second weekend of June each year, 2006 through 2008, and the City, in exchange for the consideration described below, desires to provide the use of the Park in hosting the Event and to sponsor the Event in an effort to promote the City. NOW, THEREFORE, in consideration of the premises hereof, the consideration described below, and such other promises and terms encompassed herein, the parties hereto do hereby agree as follows: HGI Duties and Responsibilities. In exchange for the consideration described in Section 2 below, HGI shall provide and/or be responsible for the following (the "HGI Duties"): (a) Attendance by one or more HGI representative(s) at regular meetings (dates and times to be determined by mutual agreement of the parties) to discuss and plan details of the Event; (b) Planning, coordination, and supervision of the Event, and any costs associated therewith, including, but not limited to: (i) Off-duty police officers to maintain security, (ii) Adequate numbers and sizes of trash collection bins, and the necessary removal services, ~. .1 1 1f 1. - .. T ~.. (iii) Costs of electrical service provided during the Event; (c) Promotion and advertisement prior to, and throughout the course of, the Event; (d) Insurance coverage as specified in Section 4 below; and (e) Maintaining the Park property in a reasonable condition during the course of the Event, and any clean-up and/or remedial activities necessary after the conclusion of the Event to restore the Park property to its condition prior to the Event. 2. City Commitments. In exchange for the HGI Duties described above and the other obligations and promises contained herein, the City shall provide the following: (a) Attendance by one or more City representative(s) at regular meetings (dates and times to be determined by mutual agreement of the parties) to discuss and plan details of the Event; (b) Subject to annual appropriation by the then-current Board of Aldermen of the City, annual support, in cash and in-kind, totaling $15,000.00 per annum for support, promotion and advertisement prior to, and throughout the course of the Event (the "Annual Support'. Such support shall be paid by June 30"' of the applicable year. For any support from the City to be considered `in-kind' support under this Subsection, the City and HGI must agree to same and must agree on a value to be attributed to that support. The City's obligations to provide the Annual Support shall be from year to year only, and shall not constitute a mandatory payment obligation of the City in any ensuing fiscal year beyond the then-current fiscal year. Annual Support shall be payable solely from the amounts budgeted or appropriated therefore for the then-current fiscal year and shall constitute currently budgeted expenditures of the City. The decision of whether or not to make such appropriation is solely within the discretion of the then-current Board of Aldermen. Failure to appropriate amounts for the Annual Support shall not constitute a default under this Agreement; (c) A revocable, exclusive license to occupy the Park for a reasonable time prior to, during, and immediately after the Event for the purpose of preparing, setting-up, conducting the Event, and any necessary cleats-up or remedial activities after the conclusion of the Event. Revocation of said license under any circumstances other than those which permit termination of this Agreement by the City under Section 4 shall constitute a breach of this Agreement by the City. HGI's occupation or use of the Park pursuant to this Subsection shall not be considered `in-kind' support from the City for the purposes of Subsection 2(b) of this Agreement; (d) Promotion and advertisement prior to, and throughout the course of, the Event; 2 ~. .i P 1f ~ . .. .. T ~. ,. , (e) Access to electrical lines and/or equipment in place at the Park as of the date of the Event each year. (i) Any electrical needs of HGI exceeding the Park's capabilities as of the date of this Agreement will be the sole responsibility of HGI. (ii) HGI will be solely responsible for the costs of electrical service during the Event. 3. Usage Rights and Privileges. During HGI's use of the Park, as permitted by this Agreement, HGI shall be afforded the following rights: (a) HGI may restrict access to the Park during the conduct of the Event, and may charge for admission to the Event; (b) HGI shall be entitled to retain all receipts from such admission charges; (c) HGI reserves all exhibits, exhibitors, concessions, and concession rights conducted in the Park during the Event, including but not limited to sales of food, beverages (including but not limited to cereal malt beverages and alcoholic beverages), programs, novelties, records, tape recordings, and souvenirs; (d) HGI shall retain all proceeds from all of the activities mentioned in Subsections 3(b) and (c) above, and HGI or its concessionaires or exhibitors shall be solely responsible for all applicable taxes (such as but not limited to sales tax) and for obtaining and paying for all necessary legal permits or licenses to conduct such activities during the Event. 4. Term and Termination. This Agreement shall be in force from the date first written above until the conclusion of the Event in 2008. The City may terminate this Agreement at any time if HGI is not in compliance with its Duties under Section 1, and does not cure that non-compliance within thirty (30) days after receiving written notice of same from the City, or if the Park is not in suitable condition for the Event due to flood, weather conditions, fire or other cause beyond the control of the City, and the City shall have no liability to HGI for any damages or expenses resulting from such termination. HGI may terminate this Agreement if the City does not appropriate funds and/or support as specified in Section 2(b) for the Annual Support. The City and HGI acknowledge and agree that no property interest is created in favor of HGI by this Agreement. 5. Insurance. HGI shall maintain the following insurance for the use of the Park and any of HGI Duties arising out of this Agreement. Unless otherwise specified in this Agreement, HGI shall maintain such insurance as will protect HGI for claims under Worker's Compensation acts, and protect it from claims for damages because of bodily injury, including death and property damage, which may in any way arise out of or be in any manner remote to or any proximate manner connected with the subject of this Agreement and/or related to the Event, whether such claim arises out of the act or failure to act by HGI, its members, employees, assigns, agents, subcontractors,. or any other party for 3 ~. .i P 1i 1 - ., T t. which it may be liable. This insurance shall be written in the kinds and minimum limits of liability specified below: Description of Property Worker's Compensation (if necessary) Employer Liability (if necessary) Limits of Liability Statutory $1,000,000.00 per employee Comprehensive General Liability, including contractual: $1,000,000.00 per employee Bodily Injury $1,000,000.00 per injury Property Damage $ 500,000.00 per occurrence Such insurance shall be maintained in force during the term of this Agreement and throughout the course of the Event. Such insurance policies shall specifically name the City as an additionally insured party. Certificate(s) of Insurance shall be filed with the City evidencing that the policy or policies are in full force and effect and that the same will not be altered, amended or terminated without ten (10) days prior written notice to the City. HGI shall furnish the City with adequate evidence that HGI has obtained and is maintaining in force Worker's Compensation insurance as prescribed by the law of the State of Missouri. 6. Indemnity. HGI shall indemnify, hold harmless and defend the City, and its officials, officers, advisors, agents and employees (collectively, the "City Indemnitees") from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs) of whatsoever nature that may be incurred by the City Indemnitees, or any of them, arising out of or in connection with the terms of this Agreement to the extent that such liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs) or claim thereof results or arises, in whole or in part, from the negligent, reckless or intentional acts or omissions of HGI, its members, invitees, or participants at the Event. In so defending the City Indemnitees and each of them, HGI shall provide counsel that is reasonably acceptable to the City. This Section 5 shall survive the revocation or termination of this Agreement. 7. Strict Performance. No failure by the City to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement or to exercise a right or remedy shall constitute a waiver. No waiver of any breach shall affect or alter this Agreement, but each and every covenant, condition, agreement and term of this Agreement shall continue in full force and effect with respect to any other existing or subsequent breach. 8. Independent Contractor. It is understood and agreed that nothing herein contained is intended or should be construed as in any way establishing the relationship of co-partners or a joint venture between the parties, or as constituting HGI as an agent, representative or employee of the City for any purpose whatsoever. HGI is to be, and shall remain at all times, an independent contractor with respect to all duties, tasks, activities, and/or 4 i ... T 1 7i ~~ - .. T ~. planning to be performed under this Agreement. Persons employed, retained, and/or solicited by HGI in the performance of HGI's Duties pursuant to this Agreement are not employees of the City and shall have no claim to pension, workers' compensation, unemployment compensation, civil service or other employee rights or privileges granted to the City's officers and employees either by operation of law or by the City. 9. Invalidity or Unenforceability of Particular Provisions. The invalidity and unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof not inconsistent with such provision, and the Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, provided, however, if the remaining provisions of this Agreement would make the obligations of the parties inequitable vis-~-vis the parties or the deletion of any such provisions would materially change the essential terms of this Agreement, the parties will negotiate in good faith modification of this Agreement to place the parties in as reasonably close position to their original positions if possible. In the event the parties are unable to negotiate a modification hereto, either party shall have the right to terminate this agreement upon not less than fifteen (15) days notice. 10. Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly delivered if delivered in person or upon the earlier of actual receipt or three (3) business days after deposit with the United States Postal Service if sent by registered or certified, first-class mail, postage prepaid to: To the City: City of Riverside, Missouri Attention: David Blackburn, City Administrator 2950 NW Vivion Road Riverside, MO 64150 Telephone: 816.741.3993 To HGI: David N. Johnson Highland Games, Inc. 513 N.W. 44th Terrace Kansas City, MO 64116-1581 Telephone: 816.455.5379 Either party may from time to time change said address by written notice to the other parties, given as above provided. 11. Assignment. HGI shall make no assignment of this Agreement or any right or obligation occurring under this Agreement in whole or in part without the express written consent of the City. The City shall have full discretion to approve or deny, with or without cause, any proposed or actual assignment by HGI. Any assignment of this Agreement made by HGI without the express written consent of the City shall be null and void and shall be grounds for the City to declare a default of this Agreement and immediately terminate 5 ~. .1 n 7~ ~ . _ .. 7 ~. this Agreement by giving written notice to HGI, and upon- the date of such notice this Agreement shall be deemed immediately terminated, and upon such termination all liability of the City under this Agreement to HGI shall cease. 12. Governing Law. This Agreement shall be construed or enforced under and in accordance with the laws of the State of Missouri. Any and all legal action necessary to enforce this Agreement shall be held or brought in Platte County, Missouri. 13. Compliance With Laws. HGI shall conduct its Duties under this Agreement, and the Event itself, in compliance with all applicable Federal, State and local laws, ordinances, orders and regulations. 14. Severability. If any provision of this Agreement shall be declared illegal, void or unenforceable by a court of competent jurisdiction, the other provisions shall not be affected but shall remain in full force and effect. 15. Entire Agreement. There are no other agreements or understandings, either oral or written, between the parties affecting this Agreement, except as otherwise specifically provided for or referred to herein..This Agreement cancels and supersedes all previous agreements between the parties relating to the provision of services covered by this Agreement. No change or addition to, or deletion of, any portion of this Agreement shall be valid or binding upon the parties hereto unless the same is approved in writing by the parties. There aze no other contracts between the parties. 16. No Third-Party Rights. Nothing in this Agreement shall be construed as creating or giving rise to any rights in any third parties or any persons other than the parties hereto. 17. Construction of Headings. The captions or headings are for convenience only and aze not intended to limit or define the scope or effect of any provision of this Agreement. [The remainder of this page is intentionally left blank.] 6 ~. .T l 1i ~ . _ .. T ~. • 4 . IN WITNESS WHEREOF, the parties have caused this Agreement to be effective beginning on the day and year first written above and represent and warrant that the parties signing below have sufficient authority to bind the parties hereto. CITY OF RIVERSIDE, MISSOURI (the "City") ~~ ~~~J Print Name• ~'fi~` Y ~icp ~ • fi Title: tea- pfd 2 HIGHLAND GAMES, INC. ("HGI") Print Name: ~~ v; ~ N. ~~hf~ Title: ~'"~~tf ri ce ~resri/d,~'" 7 ~. .i n 71' ~ ~ - .. T ~.