HomeMy WebLinkAbout2010 02 08 Regular 601 Consider Change To The Economic Development Grant Agreement COMMISSION AGENDA
Consent
ITEM 601 Informational
Public Hearing
Regular X
February 8, 2010 MGR. /DEPT.
Regular Meeting Authorization
REQUEST: City Manager requesting the City Commission to consider a change, proposed by
the Oviedo - Winter Springs Regional Chamber of Commerce, to the Economic Development Grant
Agreement previously transmitted by the City to the Chamber.
(The issue of memorializing the terms of the City's Trustee Membership with the Chamber was
previously discussed by the Commission on September 14, 2009. At that time, the item was tabled.
Therefore, a motion to remove from the table would be required for the Commission to consider this
item.)
SYNOPSIS: Previously, the Commission informed the Oviedo - Winter Springs Regional Chamber of
Commerce (Chamber) of its desire to memorialize the terms of its Trustee Membership for 2010 through
a written agreement. The Chamber agreed to a written agreement and informed the Commission that it
would review the submitted agreement (as prepared by the City Attorney) with the Chamber Board. The
Chamber has now completed its review and has requested a substantive change to the agreement. This
substantive change is being presented to the Commission for its consideration because of it has policy
and legal considerations that require the Commission's consideration.
CONSIDERATIONS:
The Commission previously considered the attached Economic Development Grant Agreement (Trustee
Membership Agreement) on September 14, 2009. At that time, the Commission tabled this item to
afford Chamber Representative Paul Partyka time to take the agreement back to his Board for
consideration and approval.
The Chamber has now reviewed the agreement and submitted a proposed change to such. Specifically,
the Chamber is requesting to remove the last section of 3(h), regarding the prohibition of the Chamber
from taking positions on referendum issues, as shown below:
{1a) During the Trnn of this Agreement, the Chamber shah not take any
formal or informal position regarding City of Winter Springs' elections
including, hut not limited to, taking any position to promote, support,
endorse, oppose, or criticize, either vethally or in writing, any candidate
running for the Winter Springs' City Corr mission,
According to the Chamber, their "Government Affairs Committee is making it a point to focus on
issues" and this prohibition "would make their mission difficult."
The Commission's position has been that as matter of policy it would not participate in Chamber Trustee
Membership for 2010 if the Chamber were to utilize those funds to take positions on election issues
(candidates running for Commission and City referenda) specifically related to the City of Winter
Springs' elections.
Further, the Commission should be very cautious about providing public funds to any organization that
intends to run political advertisements and electioneering communications in the near future because of
section 106.113, Florida Statutes (2009), which now prohibits local governments from making such
expenditures directly or indirectly. Thus, even if the Commission were to accept the proposed change
by the Chamber, the City will need to negotiate some written assurances that City funds will not be
expended for such purposes.
FISCAL IMPACT:
Trustee membership costs are $5,000 per year, for the period from January 1 to December 31. Funds are
budgeted in the Commission budget, 1100- 58300, in FY 2010 for this purpose.
COMMUNICATION EFFORTS:
Trustee membership affords the City with a variety of communication tools which are included in the
$5,000 cost, including:
• Logo placement as a TRUSTEE on Chamber letterhead and Membership Literature.
• Logo placement on signage and recognition as a TRUSTEE at Chamber events.
• Logo placement as a TRUSTEE on home page of Chamber website with link to City's website.
• Recognition as a TRUSTEE in all weekly Chamber e- newsletters.
• 1/2 page ad in each edition of The "Green" Venture quarterly .pdf newsletter.
• Two (2) week sponsorship of Chamber Connection e- newsletter.
• Logo recognition in "Thank You" advertisement in the annual Chamber Membership Directory.
• Complimentary booth space at "Taste of Oviedo."
• Complimentary booth space at one Expo of our choice (Home & Hurricane, Kidstravaganza,
Health & Fitness or Holiday).
• Complimentary entry for four at annual Chamber Year End Business Bash.
• $1,000 sponsorship of one of a variety of Chamber's "Signature" events (excluding Golf
Tournament and Capitol Connection).
RECOMMENDATION:
The City Manager recommends that the City Commission:
1. Determine whether or not to continue its Trustee Membership with the Chamber.
2. If the Commission decides to continue its Trustee membership, then consider the Chamber's
requested change to the attached Economic Development Grant Agreement (Trustee
Membership) between the City and Chamber and take action as deemed appropriate.
Regarding this requested change in the agreement by the Chamber:
The City Manager and City Attorney caution the Commission that approving this change could
potentially place the City in a situation where it is in violation of section 106.113, F.S. unless the
City could negotiate some level of written assurance that the Trustee membership funds will not
be used for political advertisements and electioneering communications.
Absent this written assurance, in a format agreeable to the City, the City Manager would
recommend the Commission deny this requested change to the agreement.
ATTACHMENTS:
• Economic Development Grant Agreement between City and Chamber (includes Chamber's
"marked -up" proposed changes).
ECONOMIC DEVELOPMENT GRANT AGREEMENT
THIS ECONOMIC DEVELOPMENT GRANT AGREEMENT
( "Agreement ") made and entered into this _ day of , 2009, between the
City of Winter Springs ( "City"), a Florida municipal corporation, whose address is 1126
East State Road 434, Winter Springs, Florida, 32708, and the Oviedo Winter Springs Rcy,a,., a
Chamber of Commerce ( "Chamber "), a Florida non -profit corporation, whose address is
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together, "Parties ".) ��
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WHEREAS, the City recognizes that the Chamber makes a positive contribution
to the business community of Winter Springs, as well as the general citizenship; and
WHEREAS, the City further recognizes the Chamber's goals of promoting and
encouraging the economic growth of the community; and
WHEREAS, the Chamber seeks funding in order to expand and support its
business, professional and civic interests including those within the City of Winter
Springs; and
WHEREAS, the Chamber and the City desire to enter into an agreement whereby
the City will provide the Chamber with an Economic Development Grant ( "Grant ") under
the terms and conditions stated herein, and in exchange for the Chamber's continued
commitment to promote and support economic development activities within the City of
Winter Springs; and
WHEREAS, the City Commission enters into this Agreement in accordance with
the economic development powers granted municipalities pursuant to section
166.021(9)(a), Florida Statutes and in accordance with home rule under the Florida
Constitution; and
WHEREAS, the City Commission of Winter Springs authorized the entry of this
Agreement on Sept er 3009. ivek.. ci4.te
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The foregoing recitals are hereby deemed material to this Agreement
and are fully incorporated herein by this reference.
2. City's Commitments; Term.
(a) For purposes of this Agreement, the Term shall commence upon final
execution and shall remain in full force and effect for a period of three (3)
Economic Development Grant Agreement
Page 1 of 7
years, unless otherwise terminated by the City as provided in
subparagraph (b) below.
(b) The parties acknowledge and agree that the annual Trustee membership
covered by this Agreement runs from January 1 to December 31 of each
calendar year. Commencing on January 1, 2010, the City agrees to
provide the Chamber an economic development grant ( "Grant ") in the
amount of $5,000.00 per year in exchange for Trustee membership in the
Chamber and Chamber's commitments specified under paragraph 3
hereunder. The Grant shall be paid by December l for the Trustee
membership period starting on January 1 of the following year. However,
said Grant shall be subject to the City Commission's absolute
discretionary authority to annually budget and appropriate the funds
necessary to pay the Grant. In the event the City Commission determines
that it will not budget and appropriate the funds necessary to cover the
Grant, the City Commission shall have the right to terminate this
Agreement, without penalty, upon delivering a written notice of
termination to the Chamber.
3. Chamber's Commitments.
(a) The Chamber shall continue to enroll the City as a "Trustee Member"
during the Term of this Agreement. The Chamber shall use the Grant for
promoting and supporting the Chamber's economic development activities
including those within the City of Winter Springs.
(b) During the Term of this Agreement, the Chamber shall place the City's
logo on the Chamber letterhead, as a trustee, place the City's logo on
Chamber signage at all Chamber events, as a trustee, place the City's logo
on Chamber's website, as a trustee, and also provide recognition of the
City on all weekly communications and at all Chamber events and place
the City's logo in the Chamber's quarterly printed newsletter, as a trustee.
(c) Chamber acknowledges that it is seeking additional economic
development grants, scholarships and memberships in order to support its
activities and expenses. Chamber shall certify to the City that it has
sufficient funds to carry on its services for the Term of this Agreement and
its obligations to the City. In furtherance of this obligation, the Chamber
agrees to provide the City periodic financial report(s) evidencing its
financial condition. Said report(s) shall be delivered to the City in writing,
or during a regularly scheduled City Commission meeting, at least
annually and more frequently if requested by the City.
(d) Chamber shall do all things legally necessary to maintain its corporate,
non - profit status in the State of Florida throughout its Term of this
Agreement.
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Page 2 of 7
(e) Chamber shall comply with all applicable federal, state and local laws and
regulations (including all fire, health and other applicable regulatory
codes) and obtain and possess throughout the Term of this Agreement, all
required licenses and permits applicable to its operations.
(f) Chamber shall comply with the Title VII of the Civil Rights Act of 1964,
as amended, and will not discriminate against any person with regard to
race, color, creed, religion, gender, age, national origin, marital status,
sexual orientation or disability.
(g) In addition to the financial reporting required under subparagraph (c)
above, the Chamber shall provide a written annual report ( "Report") to the
City in September of each year during the Term of this Agreement. The
Report shall contain the following information:
i. A specific list of services provided to the business community
of Winter Springs for the preceding year; and
ii. A specific list of economic development activities for which
funding was supported by the Grant for the preceding year.
(h) During the Term of this Agreement, the Chamber shall not take any
formal or informal position regarding City of Winter Springs' elections
including, but not limited to, taking any position to promote, support,
endorse, oppose, or criticize, either verbally or in writing, any candidate
running for the Winter Springs' City Commission '
(i) The Chamber agrees that the Grant shall not be used for any election
related purpose including, but not limited to, campaign contributions,
election advertisements, and donations to political action committees.
4. Errant or Excess Disbursement. Chamber expressly understands and agrees
that the Grant amount constitutes the total amount to be paid by City under this
Agreement. Chamber agrees to be liable for repayment of any funds, in the event
that the City terminates this Agreement because the Chamber has defaulted on
any of the terms and conditions set forth herein.
5. Indemnification.
(a) Chamber shall defend, indemnify and hold harmless City, its officials,
agents and employees, from and against any and all claims, suits,
judgments, demands, liabilities, damages, costs and expenses, including
attorneys' fees, arising directly or indirectly out of or caused in whole or
in part by any act or omission by Chamber including its agents or assigns,
and anyone directly or indirectly employed by Chamber.
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Page 3 of 7
(b) City shall defend, indemnify and hold harmless Chamber, its officials,
agents and employees, from and against any and all claims, suits,
judgments, demands, liabilities, damages, costs and expenses, including
attorneys' fees, arising directly or indirectly out of or caused in whole or
in part by any act or omission by City including its agents or assigns, and
anyone directly or indirectly employed by City, to the extent permitted by
law. Nothing contained in this Agreement or any action related thereto
shall be construed as the City's waiver of sovereign immunity beyond the
limits set forth in § 768.24, Florida Statutes. Said limits shall be deemed
fully incorporated into this Agreement by this reference.
(c) Both Parties certify that any and all materials furnished by them for the
programming produced or aired under this Agreement are either owned by
them or otherwise authorized for such use without further obligation to a
third party. If, by a reason related to the content of any program produced
or broadcast pursuant to this Agreement, there is any claim or litigation
involving any charge by third parties of a violation or infringement of their
rights, the Parties shall be solely responsible for the content that they
provided for the program and accordingly, each Party shall indemnify and
hold harmless the other Party from any liability, loss or expenses arising
out of such claim or litigation.
6. Third Party Beneficiaries. This Agreement does not create and shall not be
construed as creating any rights enforceable by any person or entity other than the
Parties to this Agreement.
7. Notice. Any notices hereunder shall be in writing and will be deemed received
when delivered in person (with proof of delivery), by facsimile transmission (with
transmission report), or upon receipt if sent by overnight express mail or certified
mail return receipt requested, postage prepaid and properly addressed to the other
Party at the following addresses:
If to City:
Kevin Smith, City Manager
1126 East State Road 434
Winter Springs, Florida 32708
Telephone: (407) 327 -5857
Facsimile: (407) 327 -4753
If to Chamber:
C1 ikk soc e - Dam- S,talal, President
y roa p, 0, gox C:21 .Q.3 C
∎W o (So EL 3 a 7 6c2„.
Telephone: (407) 365 -6500
Facsimile: (407) 650 -2712
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8. Relationship. Nothing contained in this Agreement shall be construed in anyway
as to create or establish a partnership, joint venture or any other form of legal
association or relationship between the Parties hereto or as to deem either Party as
an agent or representative or either Party for any purpose or for any manner
whatsoever.
9. Force Maieure. Neither Party to this Agreement shall be liable to the other Party
for failure to perform due to acts of God, fire, flood, epidemic, labor dispute, civil
commotion, riot, act of government (other than City), or any other cause or event
beyond the control of and without the fault of either Party.
10. Assignment. Neither Party shall assign any rights or duties under this Agreement
without the prior written consent of the other Party. Failure to comply with this
section may result in immediate termination of this Agreement by notice to the
other Party. This section shall not prohibit Chamber from entering into any
subcontracts for the provision of services agreed to herein.
11. Relief. If at any time during the Term of this Agreement it is reasonably believed
that any Party has violated the terms and conditions of this Agreement, the other
Party shall have the right to seek appropriate relief including, but not limited to, a
permanent injunction restraining further violations, recovery of amounts paid
pursuant to the terms and conditions of this Agreement and/or damages, as
appropriate, and reasonable attorneys' fees.
12. Waiver. The continued performance by either party hereto, pursuant to the terms
and conditions of this Agreement, after a breach or default of any of the terms,
covenants or conditions herein shall not be deemed a waiver of any right to
terminate this Agreement for any subsequent breach or default. Any expressed or
implied waiver of any breach or default of any of the terms, covenants or
conditions herein shall not be construed or act as a waiver of any subsequent
breach or default and shall not be construed as a modification of this Agreement.
13. Governing Law and Venue. This Agreement shall be governed by the laws of
the State of Florida, and in the event of litigation in connection with this
Agreement, the venue shall be Seminole County, Florida and if in U.S. Court, the
Middle District Court located in Orlando, Florida.
14. Severability. Any covenant, condition or provision contained in this Agreement
that is held by any court of competent jurisdiction to be invalid, illegal or
unenforceable shall not affect the validity, legality or enforceability of any other
covenants, conditions or provisions contained herein.
15. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties hereto with respect to the subject matter hereof, any representations or
statements heretofore made with respect to such subject matter, whether verbal or
written, are merged herein. This Agreement shall supersede any other prior
agreements, whether verbal or written, regarding the subject matter.
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Page 5 of 7
16. Amendment. Any amendments, alterations, modifications or waivers or
provisions of this Agreement shall be valid only when made by written
instrument, specifically referencing this Agreement, and duly signed by both
Parties.
17. Termination.
(a) The Chamber shall have the right to terminate this Agreement with at least
fourteen (14) days written notice to the City if the City fails to make the Grant
payment pursuant to paragraph 2 (b).
(b) In addition to the City's right to terminate this Agreement for budgetary and
appropriation reasons pursuant to paragraph 2(b), the City shall have the right to
terminate this Agreement for cause/breach by providing the Chamber with a
written notice setting forth the basis of the termination. Before termination
becomes effective, the City shall provide the Chamber with at least fourteen (14)
days to remedy the breach. If the Chamber fails to remedy the breach to the
City's satisfaction within the time period specified, the Agreement shall be
terminated and the Chamber shall immediately reimburse the Grant funds paid by
the City for the calendar year in which the termination occurred. The amount of
the reimbursement shall be pro -rated based on the number of calendar days (prior
to termination) that the City was a Trustee member during said calendar year.
18. Signatory. Each signatory below represents and warrants that he or she has full
power and capacity and is duly authorized by their respective party to enter into
and perform this Agreement. Such signatory further represents that he or she has
fully reviewed and understands the above conditions and intends to fully abide by
the conditions and terms of this Agreement as stated.
IN WITNESS WHEREOF, the Parties have duly signed, sealed and delivered this
Agreement as of the date last signed.
"CITY"
City of Winter Springs,
Attest: a Florida municipal corporation
By:
Andrea Lorenzo - Luaces, City Clerk Kevin Smith, City Manager
Approved as to form and legality:
Date:
Anthony A. Garganese, City Attorney
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"CHAMBER"
Oviedo - Winter Springs Chamber of
Commerce, a Florida non -profit corporation
Witnesses:
By:
Print Name: David Slam, President
('#z'4 g & .-
Print Name: Date:
STATE OF FLORIDA
COUNTY OF SEMINOLE Cykf { v ; u Sucecc.—
The foregoing was sworn to and subscribed before me by David President of
Oviedo - Winter Spring Chamber of Commerce, who is 0 personally known to me or 0
( who has produced a Florida Driver's License as
` identification and who did execute the foregoing under oath or affirmation.
WITNESS my hand and seal this day of , 2009.
NOTARY PUBLIC, State of Florida
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