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HomeMy WebLinkAbout2010 09 13 Regular 601 Interlocal Agreement With Seminole County School Board Authorizing Electronic Message Board Feature COMMISSION AGENDA Consent ITEM 601. Informational Public Hearing Regular X September 13, 2010 MGR : el \ /DEPT. Regular Meeting Authorization REQUEST: Pursuant to City Commission directive, the City Attorney has prepared an interlocal agreement between the City and the Seminole County School Board, authorizing an electronic message board feature to be incorporated into, or to replace, the existing permanent sign located at the entrance of the Indian Trails Middle School and establishing a related use and performance standard policy. SYNOPSIS: In accordance with City Commission directive, the City Attorney has prepared an interlocal agreement between the City and the Seminole County School Board to allow the Indian Trails Middle School to update its existing permanent entrance sign by incorporating an electronic message board feature under certain specified conditions. Additional schools may request an electronic message board feature and inclusion within the interlocal agreement, which the City Commission may consider on a case -by -case basis. CONSIDERATIONS: 1. The Indian Trails Middle School requested authority to upgrade its existing entrance sign by installing an electronic message board feature for the existing permanent sign located at the entrance of the School. The School desires to provide notice to the public of school educational and administrative messages. 2. The City Commission has a duty to communicate to the public regarding issues related to and affecting the City, and the School Board of Seminole County has a duty to communicate to the public regarding issues related to and affecting the Seminole County Public Schools. 1 REGULAR MEETING - SEPTEMBER I3, 2010 REGULAR AGENDA ITEM °601" PAGE 2 OF 2 3. The proposed interlocal agreement would authorize the installation of an electronic message board feature for the existing permanent sign located at the entrance of the Indian Trails Middle School, establishes a policy that the feature would be used for certain public announcements controlled and selected by the City or the School, including City emergency messages and notices of certain "signature" City events. Additionally, the interlocal agreement establishes general sign performance standards for the school's electronic sign consistent with the standards applicable to the City's electronic sign at the entrance to City Hall on SR 434. 4. The City's sign code currently prohibits electronic signs. The proposed interlocal agreement, in furtherance of the interlocal's stated administrative and legislative findings, is an attempt to create a de minimis exception to the electronic sign prohibition using the "government speech doctrine." FISCAL IMPACT: None. RECOMMENDATION: The City Attorney recommends that the City Commission consider approval of the interlocal agreement between the City and the Seminole County School Board, authorizing an electronic message board feature to be incorporated into, or to replace, the existing permanent sign located at the entrance of the Indian Trails Middle School and establishing a related use and performance standard policy. ATTACHMENT: Interlocal Agreement between the City of Winter Springs and the Seminole County School Board 2 Prepared by and return to: City of Winter Springs Attention: Anthony A. Garganese, City Attorney 1126 East State Road 434 Winter Springs, FL 32708 INTERLOCAL AGREEMENT BETWEEN THE CITY OF WINTER SPRINGS, AND THE SCHOOL BOARD OF SEMINOLE COUNTY THIS INTERLOCAL AGREEMENT ( "Agreement ") is made and entered into this day of _, 2010, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (hereinafter "Winter Springs ") and the SCHOOL BOARD OF SEMINOLE COUNTY, (hereinafter "School Board "). WITNESSETH: WHEREAS, this Agreement is authorized pursuant to Section 163.01, Florida Statutes; and WHEREAS, the traveling public within the City of Winter Springs has historically been able to identify the location of public schools and public school - related messages within the Seminole County Public Schools by viewing the identifying message(s) depicted on an existing permanent sign which is currently erected at or near the front entrance of a school; and WHEREAS, the parties desire to commission an update and modification to, or replacement of, such existing permanent sign currently erected at specified school(s) within the Seminole County Public Schools by authorizing an electronic message board feature and establishing general sign specifications for the electronic message board feature; and WHEREAS, the purpose of the electronic message board feature is to permit a public school to use advances in technology to communicate more effectively with the public through the electronic display of a variety of public service announcements selected and controlled by the 1 parties in accordance with the use policy established by this Agreement; and WHEREAS, the use of the permanent sign at a public school to electronically display public service announcements and governmental messages selected and controlled by the parties is appropriate for the public schools in question; and WHEREAS, the use of the permanent sign at a public school to electronically display public service announcements selected and controlled by the parties is also consistent with the image of the public school that the parties wish it to project to all who attend, frequent, or travel by, the public school; and WHEREAS, the public school will pay for and erect the modifications to, or replacement of, the permanent sign without contribution from any public or private entity, and the public school will assume full responsibility for providing construction, maintenance and security for the sign; and WHEREAS, the United States Supreme Court has recognized that the government can speak for itself and is entitled to select the views it wants to express and that permanent monuments and signs can represent government speech. See, e.g., City of Pleasant Grove v. Summun, 129 S.Ct. 1125 (2009) (Placement of a permanent monument in a public park viewed as government speech and not subject to First Amendment scrutiny); Wells v. City and County of Denver, 257 F. 3d 1132 (10 Cir. 2001) (City acted within its rights to control the contents of its own speech by prohibiting private holiday display on steps of city building); and WHEREAS, the parties will exercise complete supervision and control over the electronic message board content, which will be limited to public service announcements related to the administrative, educational, and other public business of the public school; public health concerns or emergencies, such as "boil water alerts," and "amber or silver alerts"; and, if space allows, notices of school - sponsored events of general public interest in accordance with policies established by the 2 public school; and WHEREAS, it is also the intent and purpose of the electronic message board to allow the public school to promote its views and therefore, the electronic message board shall not be used by any private business or to promote any businesses or private events; and WHEREAS, the parties deem it necessary for the benefit of the public health, safety and welfare to enter into this Interlocal Agreement. NOW, THEREFORE, in consideration of the covenants and Agreement hereinafter set forth, to be kept and performed by both parties, the parties agree as follows: 1. RECITALS. The foregoing recitals are true and correct and are incorporated herein by reference as a material part of this Agreement. 2. DEFINITIONS. Unless the context in which the word is used clearly indicates otherwise, the following words shall have the meaning hereafter ascribed: 2.1. "Agreement" or "Interlocal Agreement" shall mean this Interlocal Agreement between Winter Springs and the School Board. 2.2. "School" shall mean a public school within the Seminole County Public Schools that is listed in Exhibit "A", attached hereto and incorporated herein by this reference. 2.3. "School Board" shall mean the School Board of Seminole County, Florida. 2.4. "Winter Springs" shall mean the City of Winter Springs, a Florida municipal corporation and its officers and employees. 3. CONDITIONS PRECEDENT. All rights, obligations and liabilities of the parties under this Agreement shall be subject to the satisfaction of the following conditions precedent: 3.1 The complete execution of this Agreement by the parties. 3 3.2 The approval of this Agreement by the City Commission of Winter Springs and the School Board of Seminole County. 3.3 This Agreement is filed and recorded with the Clerk of the Circuit Court in and for Seminole County, Florida, pursuant to Section 163.01(11), Florida Statutes. 4. REPRESENTATIONS OF WINTER SPRINGS. Winter Springs makes the following representations to School Board: 4.1. Winter Springs is duly organized and in good standing under the laws of the State of Florida, and is duly qualified and authorized to carry on the governmental functions and operations set forth in this Agreement. 4.2. Winter Springs has the power, authority and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by Winter Springs has been duly authorized by the City Commission of Winter Springs; 5. REPRESENTATIONS OF SCHOOL BOARD. School Board makes the following representations to Winter Springs: 5.1. School Board is duly organized and in good standing under the laws of the State of Florida, and is duly authorized to carry on the governmental functions and operations set forth in this Agreement. 5.2. School Board has the power, authority, and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by School Board has been duly authorized by the School Board of Seminole County, 6. STATUTORY AUTHORITY. This Agreement shall be considered an Agreement pursuant to Section 163.01, Florida Statutes. A true and correct copy of this Interlocal Agreement shall be filed with the Clerk of the Circuit Court in and for Seminole County, Florida, by Winter Springs and Winter Springs shall provide School Board a recorded copy of the Interlocal Agreement upon receipt from the Clerk of the Circuit Court. 7. AUTHORIZATION FOR USE OF ELECTRONIC MESSAGE BOARD AT 4 EXISTING SIGN LOCATION. An electronic message board feature may be incorporated into, or may replace, an existing permanent sign located at or near the front entrance of a School in accordance with all terms and conditions of this Agreement ( "Electronic Sign "). The copy area of the electronic message board feature shall be no greater than twenty -four (24) square feet and shall be incorporated into the existing or replacement permanent sign located at or near the entrance of the School. The electronic message board feature must be capable of being programmed to satisfy the performance standards set forth in Exhibit `B" and of being reprogrammed to satisfy such performance standards if the standards are modified by the City in accordance with paragraph 9. The School Board will cooperate with the City in selecting an electronic message board that is able to meet such performance standards and that meets the objectives of this Agreement. The Electronic Sign shall be used exclusively for public service announcements related to the educational or administrative public business of the School, City messages regarding public health concerns or emergencies as set forth in paragraph 8, and, if space allows, notices of School - sponsored events of general public interest in accordance with any other implementing administrative policies established by the School, or City - sponsored events in accordance with paragraph 8. The Electronic Sign will not be used to advertise or promote any private business or to promote any businesses or private events. 8. CITY MESSAGES. In the event that the City deems it necessary or advisable to post an emergency City message on the Electronic Sign, the School shall post such message immediately upon receiving written notice from the City, or as soon thereafter as possible. Emergency City messages may include Hurricane or Tornado information, notice of City public health concerns such as "boil water alerts" or "gas leak alerts ", and emergency alerts for missing 5 persons often referred to as "amber alerts" or "silver alerts ". In addition to emergency messages, the School Board shall post notices of City sponsored events occurring within the City under the following terms and conditions: (a) For each academic school year (approximately August through May), notices of City sponsored events shall not exceed more than four "signature" City events such as the Winter Springs Arts Festival, Hometown Harvest, the Holiday Tree Lighting, and the Highland Games. (b) For each summer break when school is not in session, the school shall notice the City's annual Fourth of July event and such other City sponsored events mutually agreed to by the parties. (c) Notices of City sponsored events shall occur daily within the week prior to the special event including the day(s) of the event. (d) Notices shall be posted in conjunction with any other school notices being posted on the Electronic Sign. (e) At such time as the School is used for City special events parking, the Electronic Sign shall provide notice of the availability of the event parking. 9. SIGN PERFORMANCE STANDARDS. Sign Performance Standards • applicable to the Electronic Sign are set forth in Exhibit "B ", attached hereto and incorporated herein by this reference. The School shall be bound by the Sign Performance Standards. The City may, from time to time, modify or update such Sign Performance Standards in the sole discretion of the City Commission. In the event such modifications or updates are approved by the City Commission, (1) the City shall provide written notice to the School pursuant to paragraph 11 herein, and (2) upon receipt of such notice by the School, such modifications or 6 updates to the Sign Performance Standards are fully and completely incorporated into this Agreement as if specifically set forth herein, and the School shall be required, at the School's expense, to comply therewith. 10. COMPLIANCE WITH CITY CODE AND PERMITS REQUIRED. The School Board acknowledges and agrees that it shall be required to comply with all City codes, policies, rules, and restrictions in addition to the terms and conditions of this Agreement. The School Board further acknowledges and agrees that the electronic message board authorized under this Agreement is a de minimis exception to the City Sign Code and that nothing herein shall authorize the School Board to install any other electronic message boards unless authorized by this Agreement or City Code. The School Board further agrees to execute any permit application from the City of Winter Springs, Florida, which is necessary to modify or construct the Electronic Sign at the School. All permit application fees shall be paid by the School Board. 11. NOTICES. All notices and correspondence shall be (i) hand delivered (with signed acknowledgment of receipt or affidavit of delivery), (ii) delivered by registered or certified mail, return receipt requested, or (iii) delivered by overnight carrier with signed acknowledgment of receipt. All such notices and correspondence shall be sent to the respective parties, with copies forwarded to their agents or attorneys, at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing. (a) if to Winter Springs: City of Winter Springs City Manager 1126 East S.R. 434 Winter Springs, FL 32708 Telephone: 407 -327 -5957 Facsimile: 407 - 327 -6686 (b) if to School Board: Seminole County School Board Superintendent 7 400 East Lake Mary Boulevard Sanford, FL 32773 -7127 Telephone: 407 - 320 -0000 Facsimile: 407- 320 -0281 Any notice or demand so given, delivered or made by United States Mail, shall be deemed so given, delivered or made three (3) days after the same is deposited in the United States mail, registered or certified, return receipt requested, addressed as above provided, with postage thereon prepaid. Any such notice, demand or document hand delivered or made by overnight carrier shall be deemed to be given, delivered or made upon delivery (or attempted delivery, if deliver is not accepted) of the same at the address where the same is to be given, delivered or made. 12. TIME; GOOD FAITH COOPERATION. Time is of the essence of this Agreement and every term and provision of this Agreement. The parties shall continue to cooperate in good faith with each other to effectuate the intent and purpose of this Agreement. 13. SEVERABILITY. It is further understood and agreed that in the event any provision of this Agreement shall be adjudged, decreed, held, or ruled to be invalid, such provision or a portion thereof shall be deemed severable, and it shall not invalidate or impair the Agreement as a whole or any other provision of the Agreement. 14. NON - WAIVER. No covenant, term, condition (or breach thereof), shall be deemed waived, except by written consent of the party against whom the waiver is claimed. A waiver of any covenant, term, or condition (or breach thereof), shall not be deemed to be a waiver of any other covenant, term or condition (or breach thereof). 15. CAPTIONS. Captions and headings in this Agreement are for convenience only and shall not be relied upon in construing the meaning of this Agreement or any of its provisions. 8 16. CHOICE OF LAW; VENUE. This Agreement has been made and entered into in the State of Florida, County of Seminole, and the laws of such state shall govern the validity and interpretation of this Agreement and the performance due hereunder. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. 17. INTEGRATION. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. The parties agree that they have both contributed equally to the drafting of this Agreement and this Agreement shall not be construed more favorably against the other in the event of any conflict with regards to the terms and conditions used herein. Reference herein to a whole paragraph number or subsection number shall include all subsections thereto (i.e. 9 includes 9.1, etc and 9.3 includes 9.3.1, etc.). 18. ATTORNEYS' FEES. In the event that any party brings suit to enforce any of the provisions of this Agreement, each party agrees to bear its own costs and expenses of such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial, post judgment, or an appeal. 19. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original Agreement; but such counterparts shall together constitute but one and the same instrument. 9 20. INDEMNIFICATION. To the extent permitted by law, and without waiving sovereign immunity, each party to this Agreement shall be responsible for any and all claims, demands, suites, actions, damages, and causes of action related to or arising out of or in any way connected with its own actions and omissions, and the actions and omissions of its personnel, in performing its obligations pursuant to the terms and conditions of this Agreement. 21. SOVEREIGN IMMUNITY. Nothing contained in this Agreement shall be construed as a waiver of Winter Springs's and School Board's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on their potential liability under state or federal law. 22. ASSIGNMENT PROHIBITED; THIRD PARTIES. Unless otherwise agreed in writing by Winter Springs and School Board, this Agreement shall not be assigned in whole or in part. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than Winter Springs and School Board and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Winter Springs and School Board and not for the benefit of any other party. (Signature Page Follows) 10 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals this day and year first above written. Witnesses: CITY OF WINTER SPRINGS, FLORIDA Print Name: By: MAYOR JOHN F. BUSH Print Name: STATE OF FLORIDA COUNTY OF SWORN to and SUBSCRIBED before me this day of , 2010 by , who presented his/her as identification. Notary Public Witnesses: SEMINOLE COUNTY SCHOOL BOARD Print Name: By: Print Name: STATE OF FLORIDA COUNTY OF SWORN to and SUBSCRIBED before me this _ day of , 2010 by , who presented his /her as identification. 11 EXHIBIT "A" Indian Trails Middle School 12 EXHIBIT "B" SIGN PERFORMANC STANDARDS: Messages displayed through the electronic message screen must be a static, stationary display and may not scroll, blink, flicker, flash, twirl, pulsate, project animated images or videos, or imitate movement in any manner. In addition, the copy area will not change more frequently than every five (5) seconds, and shall take no more than two (2) seconds to transition between messages. When the copy area changes, the screen shall not produce a visible flash or other side effect. These restrictions shall not prohibit the dissolving, fading or replacing of one message with another message. The electronic message board shall have a dimmer control to produce a distinct illumination change from a higher illumination level (not to exceed 6,000 NITs, which is the standard measure of brightness for electronic signs) during daytime use to a lower illumination level (Not to exceed 500 NITs) during nighttime use and to account for adverse weather conditions that reduce the amount of sunlight. 13 IININNIIINNMMNNNNIiNN11NNNNIIIN , MARYANE NORSE, CLERK OF CIRCUIT COURT SEMINOLE COUNTY BK 07472 Pgs 0993 - 1005; (13P9s) Prepared by and return to: CLERK' S # 2010127356 City : Anthony rn Springs RECORDED 11/02/2010 11 =39111 AN Attention: Ant A. Garganese, City Attoey 1126 East State Road 434 RECORDING FEES 112.00 Winter Springs, FL 32708 RECORDED BY 3 Eckenroth (all) INTERLOCAL AGREEMENT BETWEEN THE CITY OF WINTER SPRINGS, AND THE SCHOOL BOARD OF SEMINOLE COUNTY THIS INTERLOCAL AGREEMENT ( "Agreement ") is made and entered into this \2, day of Oc.- , cotbe_R,, 2010, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (hereinafter "Winter Springs ") and the SCHOOL BOARD OF SEMINOLE COUNTY, (hereinafter "School Board "). a WITNESSETH: d O (1 CO oi ro WHEREAS, this Agreement is authorized pursuant to Section 163.01, Florida Statutes; c N1 �e) j and L r 4. 0,2 ( � WHEREAS, the traveling public within the City of Winter Springs has historically been 0 c o c able to identify the location of public schools and public school - related messages within the add L o T Seminole County Public Schools by viewing the identifying message(s) depicted on an existing ti) ao 4 permanent sign which is currently erected at or near the front entrance of a school; and WHEREAS, the parties desire to commission an update and modification to, or replacement of, such existing permanent sign currently erected at specified school(s) within the Seminole County Public Schools by authorizing an electronic message board feature and establishing general sign specifications for the electronic message board feature; and WHEREAS, the purpose of the electronic message board feature is to permit a public school to use advances in technology to communicate more effectively with the public through the electronic display of a variety of public service announcements selected and controlled by the 1 f parties in accordance with the use policy established by this Agreement; and WHEREAS, the use of the permanent sign at a public school to electronically display public service announcements and governmental messages selected and controlled by the parties is appropriate for the public schools in question; and WHEREAS, the use of the permanent sign at a public school to electronically display public service announcements selected and controlled by the parties is also consistent with the image of the public school that the parties wish it to project to all who attend, frequent, or travel by, the public school; and WHEREAS, the public school will pay for and erect the modifications to, or replacement of, the permanent sign and the public school will assume full responsibility for providing construction, maintenance and security for the sign; and WHEREAS, the United States Supreme Court has recognized that the government can speak for itself and is entitled to select the views it wants to express and that permanent monuments and signs can represent government speech. See, e.g., City of Pleasant Grove v. Summun, 129 S.Ct. 1125 (2009) (Placement of a permanent monument in a public park viewed as government speech and not subject to First Amendment scrutiny); Wells v. City and County of Denver, 257 F. 3d 1132 (10 Cir. 2001) (City acted within its rights to control the contents of its own speech by prohibiting private holiday display on steps of city building); and WHEREAS, the parties will exercise complete supervision and control over the electronic message board content, which will be limited to public service announcements related to the administrative, educational, and other public business of the public school; public health concerns or emergencies, such as "boil water alerts," and "amber or silver alerts"; and, if space allows, notices of school - sponsored events of general public interest in accordance with policies established by the public school; and WHEREAS, it is also the intent and purpose of the electronic message board to allow the public school to promote its views and therefore, the electronic message board shall not be used 2 by any private business or to promote any businesses or private events; and WHEREAS, the parties deem it necessary for the benefit of the public health, safety and welfare to enter into this Interlocal Agreement. NOW, THEREFORE, in consideration of the covenants and Agreement hereinafter set forth, to be kept and performed by both parties, the parties agree as follows: 1. RECITALS. The foregoing recitals are true and correct and are incorporated herein by reference as a material part of this Agreement. 2. DEFINITIONS. Unless the context in which the word is used clearly indicates otherwise, the following words shall have the meaning hereafter ascribed: 2.1. "Agreement" or "Interlocal Agreement" shall mean this Interlocal Agreement between Winter Springs and the School Board. 2.2. "School" shall mean a public school within the Seminole County Public Schools that is listed in Exhibit "A ", attached hereto and incorporated herein by this reference. 2.3. "School Board" shall mean the School Board of Seminole County, Florida. 2.4. "Winter Springs" shall mean the City of Winter Springs, a Florida municipal corporation and its officers and employees. 3. CONDITIONS PRECEDENT. All rights, obligations and liabilities of the parties under this Agreement shall be subject to the satisfaction of the following conditions precedent: 3.1 The complete execution of this Agreement by the parties. 3.2 The approval of this Agreement by the City Commission of Winter Springs and the School Board of Seminole County. 3.3 This Agreement is filed and recorded with the Clerk of the Circuit Court 3 in and for Seminole County, Florida, pursuant to Section 163.01(11), Florida Statutes. 4. REPRESENTATIONS OF WINTER SPRINGS. Winter Springs makes the following representations to School Board: 4.1. Winter Springs is duly organized and in good standing under the laws of the State of Florida, and is duly qualified and authorized to carry on the governmental functions and operations set forth in this Agreement. 4.2. Winter Springs has the power, authority and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by Winter Springs has been duly authorized by the City Commission of Winter Springs; 5. REPRESENTATIONS OF SCHOOL BOARD. School Board makes the following representations to Winter Springs: 5.1. School Board is duly organized and in good standing under the laws of the State of Florida, and is duly authorized to carry on the governmental functions and operations set forth in this Agreement. 5.2. School Board has the power, authority, and legal right to enter into and perform the obligations set forth in this Agreement, and the execution, delivery and performance hereof by School Board has been duly authorized by the School Board of Seminole County, 6. STATUTORY AUTHORITY. This Agreement shall be considered an Agreement pursuant to Section 163.01, Florida Statutes. A true and correct copy of this Interlocal Agreement shall be filed with the Clerk of the Circuit Court in and for Seminole County, Florida, by Winter Springs and Winter Springs shall provide School Board a recorded copy of the Interlocal Agreement upon receipt from the Clerk of the Circuit Court. 7. AUTHORIZATION FOR USE OF ELECTRONIC MESSAGE BOARD AT EXISTING SIGN LOCATION. An electronic message board feature may be incorporated into, or may replace, an existing permanent sign located at or near the front entrance of a School 4 • in accordance with all terms and conditions of this Agreement ( "Electronic Sign "). The copy area of the electronic message board feature shall be no greater than twenty -four (24) square feet and shall be incorporated into the existing or replacement permanent sign located at or near the entrance of the School. The electronic message board feature must be capable of being programmed to satisfy the performance standards set forth in Exhibit "B" and of being reprogrammed to satisfy such performance standards if the standards are modified by the City in accordance with paragraph 9. The School Board will cooperate with the City in selecting an electronic message board that is able to meet such performance standards and that meets the objectives of this Agreement. The Electronic Sign shall be used exclusively for public service announcements related to the educational or administrative public business of the School, City messages regarding public health concerns or emergencies as set forth in paragraph 8, and, if space allows, notices of School - sponsored events of general public interest in accordance with any other implementing administrative policies established by the School, or City- sponsored events in accordance with paragraph 8. The Electronic Sign will not be used to advertise or promote any private business or to promote any businesses or private events. 8. CITY MESSAGES. In the event that the City deems it necessary or advisable to post an emergency City message on the Electronic Sign, the School shall post such message immediately upon receiving written notice from the City, or as soon thereafter as possible. Emergency City messages may include Hurricane or Tornado information, notice of City public health concerns such as "boil water alerts" or "gas leak alerts ", and emergency alerts for missing persons often referred to as "amber alerts" or "silver alerts ". In addition to emergency messages, the School Board shall post notices of City sponsored 5 events occurring within the City under the following terms and conditions: (a) For each academic school year (approximately August through May), notices of City sponsored events shall not exceed more than four "signature" City events such as the Winter Springs Arts Festival, Hometown Harvest, the Holiday Tree Lighting, and the Highland Gaines. (b) For each summer break when school is not in session, the school shall notice the City's annual Fourth of July event and such other City sponsored events mutually agreed to by the parties. (c) Notices of City sponsored events shall occur daily within the week prior to the special event including the day(s) of the event. (d) Notices shall be posted in conjunction with any other school notices being posted on the Electronic Sign. (e) At such time as the School is used for City special events parking, the Electronic Sign shall provide notice of the availability of the event parking. 9. SIGN PERFORMANCE STANDARDS. Sign Performance Standards applicable to the Electronic Sign are set forth in Exhibit "B ", attached hereto and incorporated herein by this reference. The School shall be bound by the Sign Performance Standards. The City may, from time to time, modify or update such Sign Performance Standards in the sole discretion of the City Commission. In the event such modifications or updates are approved by the City Commission, (1) the City shall provide written notice to the School pursuant to paragraph 11 herein, and (2) upon receipt of such notice by the School, such modifications or updates to the Sign Performance Standards are fully and completely incorporated into this Agreement as if specifically set forth herein, and the School shall be required, at the School's 6 expense, to comply therewith. 10. COMPLIANCE WITH CITY CODE AND PERMITS REQUIRED. The School Board acknowledges and agrees that it shall be required to comply with all City codes, policies, rules, and restrictions in addition to the terms and conditions of this Agreement. The School Board further acknowledges and agrees that the electronic message board authorized under this Agreement is a de minimis exception to the City Sign Code and that nothing herein shall authorize the School Board to install any other electronic message boards unless authorized by this Agreement or City Code. The School Board further agrees to execute any permit application from the City of Winter Springs, Florida, which is necessary to modify or construct the Electronic Sign at the School. All permit application fees shall be paid by the School Board. 11. NOTICES. All notices and correspondence shall be (i) hand delivered (with signed acknowledgment of receipt or affidavit of delivery), (ii) delivered by registered or certified mail, return receipt requested, or (iii) delivered by overnight carrier with signed acknowledgment of receipt. All such notices and correspondence shall be sent to the respective parties, with copies forwarded to their agents or attorneys, at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing. (a) if to Winter Springs: City of Winter Springs City Manager 1126 East S.R. 434 Winter Springs, FL 32708 Telephone: 407 - 327 -5957 Facsimile: 407 - 327 -6686 (b) if to School Board: Seminole County School Board Superintendent 400 East Lake Mary Boulevard Sanford, FL 32773 -7127 Telephone: 407 - 320 -0000 Facsimile: 407 - 320 -0281 7 • Any notice or demand so given, delivered or made by United States Mail, shall be deemed so given, delivered or made three (3) days after the same is deposited in the United States mail, registered or certified, return receipt requested, addressed as above provided, with postage thereon prepaid. Any such notice, demand or document hand delivered or made by overnight carrier shall be deemed to be given, delivered or made upon delivery (or attempted delivery, if deliver is not accepted) of the same at the address where the same is to be given, delivered or made. 12. TIME; GOOD FAITH COOPERATION. Time is of the essence of this Agreement and every term and provision of this Agreement. The parties shall continue to cooperate in good faith with each other to effectuate the intent and purpose of this Agreement. 13. SEVERABILITY. It is further understood and agreed that in the event any provision of this Agreement shall be adjudged, decreed, held, or ruled to be invalid, such provision or a portion thereof shall be deemed severable, and it shall not invalidate or impair the Agreement as a whole or any other provision of the Agreement. 14. NON - WAIVER. No covenant, term, condition (or breach thereof), shall be deemed waived, except by written consent of the party against whom the waiver is claimed. A waiver of any covenant, term, or condition (or breach thereof), shall not be deemed to be a waiver of any other covenant, term or condition (or breach thereof). 15. CAPTIONS. Captions and headings in this Agreement are for convenience only and shall not be relied upon in construing the meaning of this Agreement or any of its provisions. 16. CHOICE OF LAW; VENUE. This Agreement has been made and entered into in the State of Florida, County of Seminole, and the laws of such state shall govern the validity 8 • and interpretation of this Agreement and the performance due hereunder. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. 17. INTEGRATION. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. The parties agree that they have both contributed equally to the drafting of this Agreement and this Agreement shall not be construed more favorably against the other in the event of any conflict with regards to the terms and conditions used herein. Reference herein to a whole paragraph number or subsection number shall include all subsections thereto (i.e. 9 includes 9.1, etc and 9.3 includes 9.3.1, etc.). 18. ATTORNEYS' FEES. In the event that any party brings suit to enforce any of the provisions of this Agreement, each party agrees to bear its own costs and expenses of such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial, post judgment, or an appeal. 19. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original Agreement; but such counterparts shall together constitute but one and the same instrument. 20. INDEMNIFICATION. To the extent permitted by law, and without waiving sovereign immunity, each party to this Agreement shall be responsible for any and all claims, 9 demands, suites, actions, damages, and causes of action related to or arising out of or in any way connected with its own actions and omissions, and the actions and omissions of its personnel, in performing its obligations pursuant to the terms and conditions of this Agreement. 21. SOVEREIGN IMMUNITY. Nothing contained in this Agreement shall be construed as a waiver of Winter Springs's and School Board's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on their potential liability under state or federal law. 22. ASSIGNMENT PROHIBITED; THIRD PARTIES. Unless otherwise agreed in writing by Winter Springs and School Board, this Agreement shall not be assigned in whole or in part. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than Winter Springs and School Board and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Winter Springs and School Board and not for the benefit of any other party. (Signature Page Follows) 10 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals this day and year first above written. Witnesses: CITY OF WINTER SPRINGS, FLORIDA Print Name: '' By: /S*U M OR JOHN F. BUSH P v t Name: r vVJ L. seam , Notary S at of r � Andrea Loreno te •Luaces Florida STATE OF FLO' DA my Commission DD664334 COUNTY OF ' Pit Ex ices 05/09/2011 SWORN to and SUBSCRIBED before me this lay of St: I_g—, 2010 by , who presented his/her as identification. Not., • ) % .. - — Witnesses: SEMINOLE COUNTY SCHOOL BOARD �� IX, a p Print Name: �,■ ITV By: 't'/�. to 1 /2.1 )6 Print Name: • • FLORIDA COUNTY OF SWO ► . ' : CRIBED before me this day of , i : : , who presented his/her as identification. 11 EXHIBIT "A" Indian Trails Middle School 12 EXHIBIT "B" SIGN PERFORMANC STANDARDS: Messages displayed through the electronic message screen must be a static, stationary display and may not scroll, blink, flicker, flash, twirl, pulsate, project animated images or videos, or imitate movement in any manner. In addition, the copy area will not change more frequently than every five (5) seconds, and shall take no more than two (2) seconds to transition between messages. When the copy area changes, the screen shall not produce a visible flash or other side effect. These restrictions shall not prohibit the dissolving, fading or replacing of one message with another message. The electronic message board shall have a dimmer control to produce a distinct illumination change from a higher illumination level (not to exceed 6,000 NITs, which is the standard measure of brightness for electronic signs) during daytime use to a lower illumination level (Not to exceed 500 NITs) during nighttime use and to account for adverse weather conditions that reduce the amount of sunlight. 13