Loading...
HomeMy WebLinkAboutCBS Radio Stations, Inc. - 4th of July Special Event Agreement - 2011 06 27 CI'rY OF WINTER SPRINGS, FLORIDA 4 OF ,DULY SPECIAL EVENT AGREEMENT THIS 4 OF JULY SPECIAL, EVENT AGREEMENT ("Agreement ") is made and entered into as of the 16 day of -4/M (. , 2011, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ( "City "), and CBS RADIO STATIONS, INC.., a foreign corporation authorized to conduct business in Florida, owner and operator of Radio Station WOCL (FM) 105.9 SUNNY FM ( "Contractor "). WITNESSETH: WHEREAS, City of Winter Springs desires to hold a 4th of July special event for the benefit of the public for purposes of celebrating Independence Day on July 4, 201 1 at Central Winds Park, which is located within and owned by the City of Winter Springs; and WHEREAS, Contractor desires to contract with City to promote and support the Special Event, as provided in this Agreement; and WHEREAS, Contractor represents and warrants to City that it has the personnel, tools, materials. and experience to provide the services as provided herein. NOW THEREFORE, in consideration of the provisions contained in this Agreement, and other good and valuable consideration to 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. "Agreement" or "Contract" shall mean this Agreement between City and Contractor, and the attached Standard Terms and Conditions, regarding the Special Event services stated herein. b. "Advertise" shall mean the act of publicly announcing or calling attention to the Special Event and shall include, but not be limited to, the distribution of handbills or mass mailings, the use of outdoor advertising and announcements by billboard, poster, radio, television, or newspapers. c. "City Manager" shall mean the City Manager of Winter Springs, Florida, or his designee. d. "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. 4" of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. • Page 1 of 8 e. "Public Records" is as described in Section 119.01 1(12), Florida Statutes. f. "City" shall mean the City of Winter Springs, a Florida municipal corporation and it employees. agents, and contractors. g. "Contractor" shall mean CBS Radio, Inc., a foreign corporation authorized to conduct business in Florida, owner and operator of Radio Station WOCL (FM) 105.9 SUNNY FM, and its employees, agents, and contractors. h. "Special Event" shall mean the outdoor 4 of July special event approved by City and held at Central Winds Park on July 4, 2011. i. "Central Winds Park" shall mean the park owned and operated by the City, which is located within the City of Winter Springs on State Road 434 and adjacent to the Winter Springs High School and Lake Jessup. 2.2 Engagement. City hereby engages Contractor, and Contractor agrees to perform the services outlined in this Agreement, as provided herein. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 3.0 Duties and Obligations. City and Contractor agree to the following provision of services in connection with the Special Event: 3.1 Fireworks. City of Winter Springs shall provide a complete fireworks production produced by a qualified pyrotechnic fireworks producer, acceptable to City Manager, to provide a fireworks display during the Special Event. The display shall be approximately 20 minutes. Notwithstanding, no provision of this Agreement shall prevent the City from exercising its police powers to cancel the fireworks display, without penalty, in the event the City deems that conditions are unsafe. 3.2 Food and Beverage. Contractor agrees that the City will provide food and beverage vendors for the Special Event. Alcoholic beverages shall be limited to beer and wine. 3.3 Sponsorship. Contractor acknowledges and agrees that the City shall have the right, at its discretion, to obtain local non - profits and other local partners to participate in the Special Event. The City, at its option, may provide space for these non - profits and partners to erect their own tent, table(s) and chair(s). City shall cooperate with Contractor to accommodate and coordinate the Contractor's needs in conjunction with any local non - profits or other local partners secured by the City. 3.4 Professional Main and Secondary Stage of Entertainment. Contractor shall use its best efforts to provide 105.9 SUNNY FM on -air talent to be on stage for announcements. 4 of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 2 of 8 3.5 Advertising/Promotion. Contractor shall provide the following advertising and promotional services to the City in support of the Special Event: a. Fifty (50) on -air promo combos of live liners and ten (10) second recordings between June 20 and July 4, 2011. b. Fifty (50) promo combos of live liners and ten (10) second recordings on the on -line radio stream at www.1059sunnvfm.com between June 20 and July 4, 2011. c. Inclusion of the Special Event in a 105.9 SUNNY FM e- mailer sent to more than 14,000 Club Sun Members. d. Home page blog mentioning Special Event on www.1059sunnvfm.com. e. Post details of Special Event on the events page of www.1059sunnyfm.com from the Effective Date through the conclusion of the Special Event. f. One Facebook posting promoting the Special Event to Contractor's Facebook "Fans." 3.6 City to Provide. Subject to the Contractor's prior approval to use Contractor's logo (said approval shall not be unreasonably withheld or delayed), the City agrees to provide the following to Contractor: a. Radio promotional partnership exclusivity to 105.9 SUNNY FM for the 2011 Special Event. b. Right -of -first refusal to 105.9 SUNNY FM to be the exclusive radio partner for the July 4` 2012 Special Event subject to Section 28.0 of this Agreement. c. Prominent location for 105.9 SUNNY FM to have a presence at the Special Event. d. Opportunity for 105.9 SUNNY FM air talent to be on -stage for announcements. e. Contractor's logo inclusion in City newsletter and City direct mail piece, if any. f. Contractor's logo inclusion on additional City promotional materials for the event, if any. 3.7 City Special Event Policy. Contractor agrees to comply with the City's written Special Event Policy, if any, which is deemed applicable to the Special Event by the City Manager. 4 of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 3of8 3.8 Permits. City shall obtain all local, state, and federal permits necessary to hold the Special Event. Ln the event that Contractor is required to obtain any government permits to perform its obligations under this Agreement, Contractor will obtain such permits with the cooperation of the City. 4.0 Compensation to Contractor. There shall be no monetary compensation due to Contractor for the services rendered under this Agreement. Contractor shall receive the benefit of the publicity and marketing of 105.9 SUNNY FM derived from the City's use of Contractor's 105.9 SUNNY FM logo and its on -air talent during the Special Event. 5.0 Due Diligence. Contractor acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the services required hereunder, the availability of materials and labor, the cost thereof, and the requirements to obtain, necessary to complete the services within the time set forth herein. The Contractor warrants unto the City that it has the competence and abilities to carefully, professionally, and faithfully complete the services in the manner and within the time limits proscribed herein. The Contractor will perform the services with due and reasonable diligence consistent with sound professional and labor practices. 6.0 Time is of the Essence. Time is of the essence of this Agreement. 7.0 No Assignment. This Agreement shall not be assigned or transferred. 8.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any third parties. 9.0 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) and execute and deliver any further documents, which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 10.0 Legal Representation. The parties acknowledge that Brown, Garganese, Weiss, and D'Agresta, P.A., and other attorneys therein, have acted as counsel for City in connection with this Agreement and the transactions contemplated herein, and have not given legal advice to any party hereto other than City. 11.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void, or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 12.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial of courts located in Seminole County, Florida, and any objections as to jurisdiction or venue in such courts being expressly waived. 4"' of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 4 of 8 13.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from 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. 14.0 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 right, unless otherwise expressly provided herein. 15.0 Notices. Any notice, request, instruction, or other document to be given a 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 prepaid, 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 acknowledge upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City of Winter Springs: Kevin L. Smith, City Manager 1126 East S.R. 434 Winter Springs, Florida 32708 PH: (407) 327 -5957 FAX: (407) 327 -4753 To Contractor: CBS Radio Stations, Inc. Attn: Alexei Auld 40 West 57 Street New York, New York 10019 PH: (212) 649 -9696 FAX: (212) 792 -5053 16.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 17.0 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Contractor shall promptly supply copies of said public records to the City. AU books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal business hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 4 of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 5 of 8 18.0 Interpretation. Both the City and the Contractor 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. 19.0 Independent Contractor. Contractor shall be considered an independent contractor under this Agreement. 20.0 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. 21.0 Sovereign Imununity. 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 one hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 22.0 General Liability Insurance. For all services performed hereunder, the Contractor shall purchase and maintain, at its own expense, such general 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 services performed by Contractor under this Agreement. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability, and property damage. 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 with insurer(s) approved by the City Manager and licensed by the State of Horida to engage in the business of writing insurance. The City shall be named on the foregoing insurance policies and endorsements as "additional insured." The Contractor shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Contractor in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Contractor in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. For all services performed pursuant to this Agreement and during the Special Event, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 23.0 Indemnification and Hold Harmless. For all services performed pursuant to this Agreement, each party agrees, to the fullest extent permitted by law and without waiving the City's right to sovereign immunity, to indemnify and hold harmless the other party, and its employees, officers, and attorneys, from and against all claims, losses, damages, personal injuries 4`' of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 6 of 8 (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the grossly negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from its own or its agents': (1) performance of services pursuant to this Agreement; (2) failure to properly train employees and agents under its control or direction; (3) failure to remit any local, state, and federal taxes due as a result of the Special Event; and (4) failure to properly plan, promote, manage, and operate the Special Event. The indemnification provided above shall obligate the indernnifying party to defend at its own expense or to provide for such defense, at the sole option of the non- indemnifying party, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against non - indemnifying party or its employees, officers, and attorneys which may result from the services under this Agreement whether the services be performed by the indemnifying party or anyone directly or indirectly employed or hired by them. In all events the non - indemnifying party shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are reasonable. 24.0 Standard of Care. In performing its services hereunder, the Contractor shall 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. 25.0 Termination. This Agreement may be terminated by written Agreement of the parties. Notwithstanding, either party reserves the right to terminate this Agreement for the other party's substantial nonperformance of the terms and conditions of this Agreement, provided, however, the nonperforming party does not cure the nonperformance within thirty (30) calendar days after written notice from the other party specifying the nonperformance. 26.0 Term. The Term of this Agreement shall be from the effective date until the full completion and satisfaction of the terms and conditions of this Agreement by both parties. Except that the indemnification and hold harmless in Paragraph 23.0 shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under this Agreement. 27.0 Contractor's Signatory. The undersigned individuals executing this Agreement on behalf of the parties hereby represent and warrant that he/she has the full authority to sign said Agreement and fully bind the party he /she represents to the terms and conditions set forth in this Agreement. 28.0 Right of First Refusal. Provided Contractor has fully performed its responsibilities under this Agreement to the satisfaction of the City, the City agrees that Contractor shall have the right to be the first party to negotiate with the City for the 2012 City of Winter Springs contract to promote the 4th of July Event at Central Winds Park. Said right shall automatically expire on December 30, 2011. This paragraph shall not be construed in any way as prohibiting the City from contracting with any other party for the aforementioned contract if the City and Contractor are unable to negotiate a mutually satisfactory agreement for the 2012 July 4th Special Event, within a reasonable period of time thereafter. 4 of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: CONTRACTOR: CITY OF WINTER SPRINGS, CBS RADIO STATIONS, INC., a Florida municipal corporation. a foreign corporation authorized to conduct business in Florida, owner and operator of Radio Station WO L(FM)1• .9 SUNNY FM. fl � / ` 1 - Byi rf` By: � � G �' �U`� ixwin ,L. Sm City Manager Print am • An Title: gamintnimm 1 aft Date: 6.h Date:. 7Lk11E 2� 70►1 J 4 of July Special Event Agreement City of Winter Springs / CBS Radio Stations Inc. Page 8 of 8