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HomeMy WebLinkAbout2009 09 14 Regular 602 City's Trustee Membership with the Oviedo-Winter Springs Chamber of CommerceCOMMISSION AGENDA ITEM 602 Consent Informational Public Hearing X. a~~ September 14, 2009 Regular Meeting REQUEST: City Manager requesting that (1) the City Commission accept the City Manager's response to the City Commission's previous inquiry regarding the City's Trustee membership with the Oviedo-Winter Springs Chamber of Commerce; and (2) the City Commission consider approving a written agreement with the Oviedo-Winter Springs Chamber of Commerce which memorializes the terms and conditions under which the City will continue to maintain its Trustee membership during the next three years. PURPOSE: This agenda item is for purposes of providing a formal response to the City Commission's previous inquiry regarding the Chamber's periodic reporting obligations to the City pursuant to the City's existing Trustee membership with the Oviedo-Winter Springs Chamber of Commerce ("Chamber"). It is further the purpose of this Agenda Item to determine whether or not the City Commission desires to continue to maintain its Trustee Membership with the Chamber during the next three (3) fiscal years and if so, this Agenda Item presents a written agreement which memorializes the terms and conditions of the City's future Trustee membership. CONSIDERATIONS: 1. The City been an annual Trustee member of the Oviedo-Winter Springs Chamber for the last two and a half years. The cost of the annual Trustee membership has been $5,000.00. The first year's fee was pro-rated to $2,500.00. To date, the City has expended $12,500 to be a Trustee member of the Chamber. 2. The City has received standard Trustee benefits since becoming a member including having the City logo displayed on the Chamber's website and other communication materials. 3. On August 24, 2009, the Commission inquired as to whether the Chamber was supposed to provide the City (as a trustee member) with periodic updates and financial reports. At that time, the City Manager indicated that he would review the matter and report back to the City Commission at a subsequent Commission meeting. 4. Upon review of the matter, City staff found the following: • There does not appear to be an executed written agreement between the Chamber and City, as a Trustee member. An agreement was distributed to the Commission at its July 9, 2007 Regular meeting by the Chamber, but that agreement was never executed. • The unexecufed agreement does not specify that the Chamber will provide periodic reports or financial statements to the City. However, Chamber Representative Paul Partyka, in addressing the Commission about this item on July 9, 2007, indicated to the Commission that the Chamber would in fact provide periodic reports and financial statements. • Notwithstanding, the City has not made any formal requests to the Chamber for a periodic report or for a copy of financial statements. • Oviedo (a fellow trustee member) does have a specific trustee agreement that specifies the expectations/responsibilities of the Chamber. This agreement is different than the standard Chamber agreement presented to Winter Springs and was created by Oviedo. 5. City staff has spoken to the Chamber Director and he is agreeable to memorializing the terms and conditions of the City's trustee membership. Membership terms are $5,000 per year, for the period from January 1 to December 31. The City Attorney has reviewed the Oviedo agreement and has modified it to address other issues previously raised by the City Commission including requiring the Chamber to provide periodic reports and financial statements, prohibiting the Chamber from making political endorsements for Winter Springs' elections, and addressing other miscellaneous issues. 7. In addition to the City Manager responding to the City Commission's inquiry, this Agenda Item is also presented so the City Commission can determine whether it wants to authorize continued Trustee membership with the Chamber and if so, under what written terms and conditions. FUNDING: Trustee membership costs are $5,000 per year. Funds are budgeted in FY 2010 for this purpose. Funding for FY 2011 and 2012 is subject to the City Commission's future discretion and will be determined by the City Commission during the annual budget process. RECOMMENDATION: The City Manager recommends that the City Commission: (1) consider the staff response to the City Commission's previous inquiry; (2) determine whether or not the City should continue its Trustee membership with the Chamber; and (3) if the City Commission determines that it desires to continue the Trustee membership, the City Commission should memorialize the terms and conditions of the Trustee membership in writing by approving the attached Economic Development Grant Agreement. ATTACHMENTS: Proposed Economic Development Grant Agreement prepared by the City Attorney and City Manager. COMMISSION ACTION: ECONOMIC DEVELOPMENT GRANT AGREEMENT THIS ECONOMIC DEVELOPMENT GRANT AGREEMENT ("Agreement"1 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 Chamber of Commerce ("Chamber"), a Florida non-profit corporation, whose address is 200 W. Broadway, Oviedo, Florida, 32762, (hereinafter each referred to as "Party" and together, "Parties".) WITNESSETH 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 September 14, 2009. 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 ackno~~ledged, 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 15` 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. 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. Economic Development Grant Agreement 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 or any Winter Springs' referendum issue. (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. Economic Development Grant Agreement 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. 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: David Stahl, President 200 West Broadway Oviedo, Florida 32762 Telephone: (407} 365-6500 Facsimile: (407) 650-2712 Economic Development Grant Agreement Page 4 of 7 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. Economic Development Grant Agreement 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. Ternunation. (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. Si nato,~. 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" Attest: City of Winter Springs, a Florida municipal corporation Andrea Lorenzo-Luaces, City Clerk Approved as to form and legality: Anthony A. Garganese, City Attorney By: Kevin Smith, City Manager Date: Economic Development Grant Agreement Page 6 of 7 "CHAMBER" Witnesses: Print Name: Print Name: STATE OF FLORIDA COUNTY OF SEMINOLE Oviedo-Winter Springs Chamber of Commerce, a Florida non-profit corporation By: David Stahl, President Date: The foregoing was sworn to and subscribed before me by David Stahl, President of Oviedo-Winter Springs Chamber of Commerce, who is ^ personally known to me or 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 Economic Development Grant Agreement Page 7 of 7