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2014 10 13 Consent 307 Rotary Club Veteran's Day AgreementCOMMISSION AGENDA ITEM 307 Informational Consent X Public Hearings Regular October 13, 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 Rotary Club of Winter Springs for the 2014 Veteran's Day Event. SYNOPSIS: The 2014 Veteran's Day Event is to be held on November 11, 2014 at the Winter Springs Military Service Memorial from 6:00pm - 7:00pm. This is the 7th year for the Winter Springs Veteran's Day Event. CONSIDERATIONS: • City of Winter Springs Military Service Memorial on Blumberg Blvd. was dedicated in November 2008. • The Veteran's Day Event celebrates the honorable service of all branches of our armed forces. • City staff has met with Rotary representatives to clearly identify Rotary and City responsibilities as defined in the agreement. We have worked well with the Rotary Club of Winter Springs in planning and organizing this annual event. • Traditional national tribute of Veteran's Day is November 11th. We will honor the tradition and hold our event from 6:00 - 7:00 p.m. on Tuesday, November 11, 2014. • We will continue our special tribute, of our 4th annual "Hometown Hero Award ", to honor a Winter Springs resident for their military service to our country. • The City will install /remove pole banners per agreement. • Under the terms of the Agreement, Rotary shall pay all costs and expenses necessary Consent 307 PAGE 1 OF 2 - October 13, 2014 to satisfy its obligations under this Agreement. • City services are provided to assist in the success of the event as defined in the Agreement. • The special event permit fee of $25 is requested to be waived, per the Agreement. FISCAL IMPACT: City Public Safety costs not to exceed $385 and waiver of $25 City special event permit fee. 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 is recommending 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 Winter Springs Rotary Club for the 2014 Veteran's Day Event, and approve the waiver of the $25 City special event permit fee for this event. ATTACHMENTS: Attachment A - 2014 Veteran's Day Agreement Consent 307 PAGE 2 OF 2 - October 13, 2014 WINTER SPRINGS VETERANS DAY EVENT 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 ROTARY CLUB OF WINTER SPRINGS, INC., A Florida Not for Profit Corporation and Federal 501(c)(3) organization ( "Permittee "). WITNESSETH: WHEREAS, Permittee desires to hold a Special Event in honor of Veterans Day on November 11, 2014 in Winter Springs, Florida; and WHEREAS, Permittee desires a permit from the City which would permit the Permittee to hold the Winter Springs Veterans Day Event on Blumberg Boulevard and adjacent areas, 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. 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) "Blumberg Boulevard" shall mean the right -of -way and Veterans Memorial located in the median of said right -of way owned and operated by the City, which is located within the City of Winter Springs Town Center adjacent to Tuscawilla Road. Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 1 of 9 d) "City" shall mean the City of Winter Springs, a Florida Municipal Corporation and its officers, 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 ROTARY CLUB OF WINTER SPRINGS, 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 defined in Chapter 119, Florida Statutes. i) "Special Event" shall mean the outdoor Winter Springs Veterans Day Event to be held at the Veterans Memorial on Blumberg Boulevard on November 11, 2014 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, 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. 3.3 Sponsorship; Event Fees. Unless otherwise provided in this Agreement, City shall retain the sole right to all sponsorships and paid fees for the Special Event. Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 2 of 9 3.4 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. 3.5 Permits. Permittee shall obtain all local, state, and federal permits necessary to hold the Special Event and conduct any particular activities therein. in consideration of the Permittee's obligations under this Agreement, City shall waive all City permit fees for the Special Event. 4.0 Compensation and Expenses. Compensation and expenses for the Special Event shall be paid as follows: 4.1 Permittee Expenses. 4.1.1 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) Additional overtime for City police services authorized by the City Manager exceeding the amount budgeted pursuant to section 4.2; (2) City parks and recreation overtime costs not to exceed $50.00; (3) parking coordination for representatives and public (4) 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 at the conclusion of the Special Event or within ten (10) days of presentation of such expenses by City to Permittee, whichever occurs later. 4.1.2 Permittee shall purchase, at its sole expense, ten (10) pole banners to promote the Special Event. The pole banners shall be of a size and to specifications acceptable to the City. Upon its purchase and receipt of the pole banners, Permittee shall deliver same to the City for installation on City street poles. The location of Permittee's pole banners shall be at the sole discretion of the City. No later than seven (7) days following the conclusion of the Special Event, the City shall remove Permittee's pole banners and return said banners to Permittee. The pole banners shall remain the property of Permittee. 4.2 City Expenses. City shall provide the following services and facilities for the Special Event: (1) promotion of the Special Event through the City website; (2) 100 City -owned folding chairs for ceremony; (3) use of City -owned sound system for announcements and ceremony; (4) use of electric service and potable water as available on Blumberg Boulevard; (5) road closure and re- opening of Blumberg Boulevard with cones and signage; (6) installation and removal of two (2) City - owned light towers and diesel fuel; (7) overtime costs for four (4) City police officers, not to exceed $385.00. 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 Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 3 of 9 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. 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 that 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 Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 4 of 9 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 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) TO ROTARY CLUB OF WINTER SPRINGS, INC.: Mr. Andrew Brunkala, President Rotary Club of Winter Springs, Inc. P.O. Box 195235 Winter Springs, FL 32719 -2235 (407) 327 -1500 Email: 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. Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 5 of 9 6.12 Public Record. In accordance with section 119.0701, Florida Statutes, Contractor 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. Contractor 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. Contractor also agrees to provide the public with access to public records on the same terms and 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. Contractor 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, Contractor shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Contractor 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 Contractor 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 Contractor 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 Contractor's failure to comply with the provisions of this Paragraph, the City shall be entitled to collect from Contractor prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Paragraph against Contractor. 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 Contractor'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 Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 6 of 9 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 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 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 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 Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 7 of 9 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 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 Permittee 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 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. 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 Termination. By written notice to Permittee, the City shall have the right to cancel the Special Event and this Agreement at any time, without penalty. 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. Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: PERMITTEE: CITY OF WINTER SPRINGS, FLORIDA ROTARY CLUB OF WINTER SPRINGS, INC. Kevin L. Smith, City Manager ME Andrew Brunkala, President Veterans Day Event Permit Agreement City of Winter Springs/Rotary Club of Winter Springs, Inc. Page 9 of 9