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2014 06 23 Consent 305 Art Festival Agreement COMMISSION AGENDA Informational Consent X ITEM 305 public Hearings g Regular June 23, 2014 KS CC Regular Meeting City Manager Department REQUEST: The Parks and Recreation Department is requesting the City Commission authorize the City Manager to execute the attached agreement, as prepared by the City Attorney, between the City of Winter Springs and the Oviedo-Winter Springs Chamber of Commerce for the 7th Annual Winter Springs Festival of the Arts. SYNOPSIS: The 7th Annual Winter Springs Festival of the Arts, to be held on Blumberg Blvd. on October 18-19, 2014, is an annual community event organized_through a partnership with the City of Winter Springs and the Oviedo-Winter Springs Chamber of Commerce. Artists from all over Florida, as well as out of state artists come with unique art for a weekend in Winter Springs! CONSIDERATIONS: • The Festival celebrates the appreciation of art, wine and jazz attracting residents and visitors to our Town Center. Fine art presentations will include sculpture and clay, drawing, graphics, pastels, crafts, jewelry, mixed media, painting, photography, and digital media as well as performing arts. There is also a children's art activity area and senior art exhibits. • City staff has met regularly with the Chamber festival committee to clearly define the roles & responsibilities of each group assisting with the planning and organization of this event. • Chamber responsibilities and expenses are clearly defined in the attached proposed Agreement and have been discussed and agreed upon between the City and President of the Chamber and Chairman of the Art Festival. Consent 305 PAGE 1 OF 2-June 23,2014 FISCAL IMPACT: City Services including Parks and Recreation and Public Works estimated at $1600. City public safety services not to exceed $5,500.00. Blumberg Blvd. rental revenue received by the City is $800.00. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends the City Commission authorize the City Manager to execute the attached agreement, as prepared by the City Attorney, between the City of Winter Springs and the Oviedo-Winter Springs Chamber of Commerce for the 7th Annual Winter Springs Festival of the Arts. ATTACHMENTS: Attachment A - City of Winter Springs 7th Annual Winter Springs Festival of the Arts Agreement Consent 305 PAGE 2 OF 2-June 23,2014 Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 1 of 10 CITY OF WINTER SPRINGS, FLORIDA 7th ANNUAL WINTER SPRINGS FESTIVAL OF THE ARTS PERMIT AGREEMENT THIS PERMIT AGREEMENT (“Agreement”) is made and entered into as of the ____ day of _____________, 2014 by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (“City”), and THE GREATER OVIEDO CHAMBER OF COMMERCE, INCORPORATED, a Florida non profit corporation d/b/a OVIEDO- WINTER SPRINGS REGIONAL CHAMBER OF COMMERCE (“Permittee”). WITNESSETH: WHEREAS, Permittee desires to hold a Special Event for the benefit of the public in the interest of increasing public awareness of fine art, wine and jazz through the production of the annual Winter Springs Festival of the Arts on October 18 and 19, 2014 on Blumberg Boulevard and adjacent areas, located in and owned by the City of Winter Springs, Florida; and WHEREAS, Permittee desires a permit from the City which would authorize the Permittee to hold the 7th Annual Winter Springs Festival of the Arts at Blumberg Boulevard and adjacent areas as permitted under the terms of 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. 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. Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 2 of 10 c) “Blumberg Boulevard” shall mean the public right of way and park owned and maintained by the City, generally located within the City of Winter Springs Town Center adjacent to Tuscawilla Road. 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 GREATER OVIEDO CHAMBER OF COMMERCE, INCORPORATED, a Florida non profit corporation, d/b/a OVIEDO-WINTER SPRINGS REGIONAL CHAMBER OF COMMERCE 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 defined in Chapter 119, Florida Statutes. i) “Special Event” shall mean the outdoor Winter Springs Festival of the Arts to be held along Blumberg Boulevard on October 18 and 19, 2014, and further described in this permit Agreement. The Special Event shall be planned, promoted, managed, and operated by the Permittee pursuant to the terms of 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, 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. Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 3 of 10 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 and wine. 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, stagin g and stage lighting, golf carts, radios, tents, port-a-lets, security, event staff, and catering for staff. Additionally, Permittee shall provide six (6) water barricades in support of the Special Event. The use and location of the water barricades shall be at the sole discretion of the City. 3.5 Professional Entertainment. Permittee shall provide professional entertainment during the Special Event as deemed appropriate to a family-oriented and traditional Fine Art Festival event. 3.6 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. 3.7 Location for City Tent. Permittee shall reserve a prominent location during the Special Event for the City to erect a City-sponsored tent, which may be used for any valid municipal purpose. Permittee shall reserve and provide said location to the City at no cost to the City. 4.0 Compensation and Expenses. Compensation and expenses for the Special Event shall be paid as follows: 4.1 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, (1) the cost of overtime exceeding $5,500.00 for City law enforcement services authorized by the City Manager to ensure public safety during the Special Event and during set- up and breakdown of the Special Event; (2) overnight security services; (3) facility rental fee for use of Blumberg Boulevard in the amount of $800.00; (4) general supervision of the medians related to pedestrian and vehicular traffic; (5) actual cost to repair any damage to Blumberg Boulevard and adjacent areas incurred as a direct result of the Special Event; (6) all advertising, directional, informational and like signage for the Special Event; (7) parking coordination for Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 4 of 10 artists, vendors, and public; (8) stage, sound system, lighting, and entertainment; (9) all food and beverages; (10) all generators needed for the event; (11) portable restroom facility (cleaning and stocking); (12) clean up during and at the conclusion of the Special Event. Payment for any expenses owed to the City under this provision shall be made no later than ten (10) days following the City’s submission of such expenses to Permittee. 4.2 City Expenses. City shall provide the following services and facilities for the Special Event: (1) promotion of the event through The Insider, E-Alerts, City Hall electronic sign messaging, and City website; (2) hanging and removal of 26 Festival of the Arts banners on existing pole brackets; (3) use of electric and potable water as available on Blumberg Boulevard; (4) site preparation including mowing of the Special Event site and the addition of donated mulch as needed to City-owned and maintained property only; (5) spraying of a barrier spray and mosquito spray; (6) installation and removal of a lime rock parking lot curb; (7) road closure and re-opening of Blumberg Boulevard with cones and signage; (8) installation and removal of two (2) City-owned light towers and diesel fuel for same; (9) trash containers and liners; (10) coordination of fire and first aid services; (11) request the shutting down of irrigation at Town Center Apartments on Special Event dates; and (12) the cost of overtime not to exceed $5,500.00 for City law enforcement services authorized by the City Manager to ensure public safety during the Special Event and during set -up and breakdown of 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 apply to this Agreement: 6.1 Time of the Essence. The City’s responsibility to make Blumberg Boulevard and adjacent areas 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. Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 5 of 10 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 and 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 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 Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 6 of 10 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 addresses, 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 S.R. 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 32802-2873 (407) 327-9566 (Phone) (407) 425-9596 (Fax) TO PERMITTEE: Mr. Thomas R. Peppler, President The Greater Oviedo Chamber of Commerce, Incorporated, d/b/a Oviedo-Winter Springs Regional Chamber of Commerce P.O. Box 621236 Oviedo, FL 32762-1236 (407) 365-6500 Email: tpeppler@hochmanpeppler.com 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. In accordance with section 119.0701, Florida Statutes, Permittee agrees that all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided by the City pursuant to this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Permittee agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Permittee also agrees to provide the public with access to public records on the same terms and Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 7 of 10 conditions that the City would provide the records and at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Permittee shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, Permittee shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Permittee upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. If Permittee does not comply with a public records request, the City shall have the right to enforce the provisions of this Paragraph. In the event that Permittee fails to comply with the provisions of this Paragraph, and the City is required to enforce the provisions of this Paragraph, or the City suffers a third party award of attorney’s fees and/or damages for violating the provisions of Chapter 119, Florida Statutes due to Permittee’s failure to comply with the provisions of this Paragraph, the City shall be entitled to collect from Permittee prevailing party attorney’s fees and costs, and any damages incurred by the City, for enforcing this Paragraph against Permittee. And, if applicable, the City shall also be entitled to reimbursement of any and all attorney’s fees and damages which the City was required to pay a third party because of Permittee’s failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement. 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 Specia l 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. Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 8 of 10 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 person for more than two hundred thousand dollars ($200,000.00), 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 three hundred thousand dollars ($300,000.00). 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 combines 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 an y deductible, if any, relating to any claim made against the insurance coverages and policies provided under this Agreement. If this 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. For all activities and services permitted and occurring under this Agreement, including any and all activities and services provided Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 9 of 10 and performed by Permittee and by authorized participants of the Special Event, the Permittee agrees to the fullest extent permitted by law, to indemnify and hold harmless the City 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 arises out of, or results from any act or failure to act of Permittee or any person authorized by Permitt ee to participate in the Special Event which in any way is related to 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 and liability and all suits and actions of every name and description that may be brought against the City or its empl oyees, 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. This section 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 authorized participants thereto. 12.0 Suspension or Cancellation of Special Event. The City shall have the right to temporarily suspend or cancel the Special Event at any time in the event of an adverse weather condition, emergency, or in the event of any other occurrence requi ring the temporary suspension or 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 suspension or cancellation shall be at the City’s sole discretion and shall be without penalty to the City. The City shall provide Permittee with notice of any suspension or cancellation of the Special Event as soon as is practicable under the circumstances warranting suspension or cancellation. If the Special Event is cancelled through no fault of the Permittee, the City shall refund any fees 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. Winter Springs Festival of the Arts City of Winter Springs/Oviedo-Winter Springs Regional Chamber of Commerce Page 10 of 10 15.0 Reporting Requirement. No later than sixty (60) days after the Special Event, Permittee agrees to make a presentation to the City Commission recapping the successes and challenges experienced during the Special Event. During the City Commission meeting, the Permittee will also present a written profit and loss statement for the Special Event which details the revenues received and expenses incurred by the Permitee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY OF WINTER SPRINGS, THE GREATER OVIEDO CHAMBER a Florida municipal corporation. OF COMMERCE, INCORPORATED, d/b/a Oviedo-Winter Springs Regional Chamber of Commerce. _____________________________ __________________________________ Kevin L. Smith, City Manager Thomas R. Peppler, President