Loading...
HomeMy WebLinkAbout11-225MAY 24, 2011 11 -225 RESOLUTION (CARRIED 6 -0 LOST LAID OVER WITHDRAWN ) AS AMENDED PURPOSE: APPROVAL OF SPECIAL EVENT AGREEMENT WITH EAA AIRVENTURE OSHKOSH INITIATED BY: CITY ADMINISTRATION NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that approval is granted to EAA AirVenture Oshkosh to hold its AirVenture Oshkosh event pursuant to the terms of a special event agreement. The term of the agreement is initially for five (5) years and is automatically renewable for additional five (5) year periods unless terminated by on of the parties. The Common Council instructs the appropriate City officials to enter into an agreement in a form substantially similar to the attached agreement. BE IT FURTHER RESOLVED that as a condition of approval, the Event Organizer shall pay the City's actual costs for extraordinary services as described in the approved agreement. BE IT FURTHER RESOLVED that the City Manager shall provide the actual cost on an annual basis to Council. Bold & Italics indicates Amendments AGREEMENT FOR SPECIAL EVENT THIS AGREEMENT is made on the day of , 2011, by and between the CITY OF OSHKOSH, (CITY), and the EXPERIMENTAL AIRCRAFT ASSOCIATION, INC. (EAA) with its offices located at 3000 Poberezny Road, Oshkosh, WI, 54902. EAA acknowledges that it is an EVENT ORGANIZER as that term is specified within Section 5 -18 of the City of Oshkosh Municipal Code. EAA asserts to the City that while it has obtained many sponsors, vendors, supporters, and affiliates for its event, EAA is and will remain the sole organizer of the Event identified in this Agreement. Pursuant to the provisions of Section 5- 18(III)(D) of the City's Municipal Code, EAA has requested to enter into this agreement for the purpose of complying with the provisions of the City's Special Events Ordinance. In return for EAA's promises described in this Agreement, the City grants EAA permission to hold the requested event in return for EAA's promise to abide by the terms of this agreement and the Municipal Code, and agrees that the actual event will be substantially similar to the event described in each year's Special Events application as submitted under the requirements of this Agreement. Additional consideration received by EAA in this Agreement is the City's waiver of the Special Events Ordinance provision which would otherwise require EAA to present its Event proposal to the Common Council each subsequent year after its initial presentation to the Council for review and approval. 1. PURPOSE. EAA desires to hold the following event: EAA AIRVENTURE OSHKOSH (Event) The Event is a convention located on the grounds owned and /or leased by the Experimental Aircraft Association and located in part within the City of Oshkosh. The Event generally held for approximately one week near the end of July each year, and consists of a convention including air shows, food sales, non - alcoholic beverage sales, alcohol beverage sales in compliance with Wisconsin law and applicable municipal alcohol beverage licensing laws, including City of Oshkosh ordinances, non -food related sales and /or display booths and areas, educational forums, meetings, presentations of government officials, business meetings, aircraft and aviation - related products. Event Organizer will provide specific dates for the Event for each year of this Agreement. Event Organizer has successfully held the Event for a number of years and wishes to continue to hold the Event throughout the foreseeable future. Both parties agree that this agreement will assist in the continued success of the Event by facilitating planning efforts while complying with the City's Special Event Ordinance. 2. TERM. The Term of this Agreement shall be for five (5) Event -years commencing on January 1, 2011 and terminating at the end of the scheduled Event in 2015. This Agreement shall automatically renew for additional five (5) year periods unless terminated by either party as provided in this Agreement. 3. APPLICATION. EAA shall complete and submit to the Office of the City Clerk a new Special Event Application each year during the term of this Agreement at least 45 days prior to the start of that year's Event. The initial application, and each subsequent application, is incorporated into this Agreement. The parties agree that each year's Event shall be substantially similar to the Event as described in each application, except where the Event has been required to be altered or modified by the City. All parties agree that upon submission of each application, EAA and appropriate City officials shall discuss and further plan the Event. In the course of these discussions, the City Manager, Police Chief and/or Fire Chief shall have the authority to modify and alter Event plans when necessary for the protection of the health, safety, and welfare of the public. EAA agrees to be bound: first, by applicable ordinances, rules, and laws; second, by this Agreement and any sub - agreements; third, by any changes or requirements provided in writing pursuant to the review of the submitted plan and discussions above; and, fourth, where there are no conflicts with the foregoing, by EAA's Special Events application. 4. COMPLIANCE WITH LAWS. EAA shall be responsible for holding the Event consistent with all applicable local, state, and federal laws, rules, and codes, including, but not limited to, the City's Special Event Ordinance. EAA agrees to use all reasonable efforts to ensure compliance with these rules and regulations by all participants, attendees, and vendors. 5. OTHER PERMITS AND LICENSES. EAA shall require in its agreements with vendors, contractors, exhibitors and sponsors that such person shall comply with all applicable laws, including that such persons must obtain any and all permits and licenses required for the operation of the Event, including but not limited to temporary restaurant permits, liquor licenses, fireworks or burning permits. 6. ADDITIONAL SERVICES. The Event requires the provision of certain extraordinary services by the City including, but not limited to, fire protection, inspections services, ambulance services, and traffic control. The City agrees to work with EAA to provide the necessary services in support of the Event. EAA agrees to pay, or reimburse, the City for the actual reasonable cost of providing these extraordinary services. The appropriate city officials are hereby authorized to enter into yearly sub - agreements for the provision of these and any other necessary services required for the Event so long as the agreements provide for compensation consistent with the City's then current Special Events Fee Schedule. These sub - agreements each year shall be considered fully incorporated into this Agreement and enforceable as part of this agreement. The City shall be responsible for providing EAA with an estimate of costs for extraordinary services after each application has been submitted, but before the start of the Event. The parties acknowledge that unexpected issues may arise as a result of the Event which may result in additional extraordinary expenses by the City which are not covered by a Pre -Event agreement. EAA agrees to pay these additional actual costs upon receipt of a statement and explanation from the appropriate City official. EAA shall be responsible for remitting payment for extraordinary services within the timeframe identified in each sub - agreement, or if no such term is identified, then payment shall be submitted within thirty (30) days after the City Invoice is mailed. 7. TERMINATION Termination by City for Cause. City may terminate this Agreement at any time, for cause which shall be defined as a material breach of any of the terms of this Agreement, after giving EAA at least thirty (30) calendar days notice of the breach and an opportunity to cure the breach. If EAA fails to cure the breach, then this Agreement shall be terminated on the date indicated in the notice. After termination, the City shall invoice EAA for any services provided and not yet reimbursed, and EAA shall pay such amount within thirty (30) days of such invoice. Termination by City without Cause. City may terminate this Agreement at any time, without cause: (a) By giving EAA two hundred ten (210) days written notice if City determines that it is unwilling or unable to provide any of the Extraordinary Services (as defined in Section 5 -18 of the City's Municipal code); or (b) By giving EAA two hundred seventy (270) days notice for any other reason or for no reason. EAA may terminate this Agreement at any time, without cause, by giving City one hundred eighty (180) days notice for any reason or for no reason. The parties may mutually terminate this Agreement at any time, without cause, by a written mutual agreement. The party seeking to terminate this agreement agrees to discuss this matter with the other party before termination. After termination, the City shall invoice EAA for any services provided and not yet reimbursed, and EAA shall pay such amount within thirty (30) days of such invoice. 8. ASSIGNMENT AND REPRESENTATIONS. No representation, warranty, condition or agreement of any kind or nature whatsoever shall be binding upon the parties hereto unless incorporated into this Agreement, or into any sub - agreements for City services entered into each year of the Event. This Agreement contains all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this document shall be binding upon the parties hereto except as entered into pursuant to this paragraph or paragraph 6 above. The parties agree that the only exception to the foregoing requirement for written agreements are issues which arise during the Event which were unanticipated but require action and which meet the definition of extraordinary services and the timing of which do not allow the parties to formally enter into written terms. This Agreement may not be modified in any manner or assigned to any other person or entity except by written amendment signed by both parties. EAA shall not change its status as the sole Event Organizer without prior written approval of the City. 9. INSURANCE, INDEMNIFICATION, AND HOLD HARMLESS REQUIRED. Each year at least thirty (30) business days prior to the start of each year's Event, Event Organizer shall file with the office of the city clerk proof of insurance and execute an indemnification and hold harmless agreement in compliance with the City's then - current Special Events Insurance Requirements. 10. MUNICIPAL LIABILITY: Nothing in this Agreement or related sub - Agreements are intended as a waiver of the City's right or opportunity to rely upon the municipal limitations and immunities contained within Wisconsin law. Municipal immunities and limitations include, but are not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. Such damage limits, caps and immunities are intended to be preserved and are incorporated into this agreement and shall govern all disputes, contractual or otherwise, as they apply to the municipality and its agents, officers, and employees. 11. CONTROLLING LAW. The validity, construction and effect of this Agreement shall be governed by the laws of the State of Wisconsin without regard to the place(s) of execution of this agreement. Any dispute shall be venued in Winnebago County, Wisconsin. This Agreement is for the sole benefit of the parties hereto and does not create any rights or liabilities to or for the benefit of any third parties. 12. NOTICES. All communications or notices required or permitted by this Agreement shall be in writing and shall be deemed to have been given (i) upon delivery to the EAA Offices at the address listed below, if hand delivered, or (ii) with a nationally recognized commercial carrier that will certify as to the date and time of delivery, prepaid and each such communication or notice shall be addressed as follows, unless and until any of such parties notifies the other in accordance with this Paragraph of a change of address: If to the City: City of Oshkosh, Wisconsin 215 Church Avenue, P.O. Box 1130 Oshkosh, WI 54903 -1130 Attention: City Clerk If to Event Organizer: Experimental Aircraft Association, Inc. 3000 Poberezny Road Oshkosh, WI 54902 Attention: Executive Vice President The individual(s) signing this agreement has the authority to enter into this agreement on behalf of the organizer(s) of the Special Event. 13. INDEPENDENT CONTRACTOR. The City and EAA understand and agree that they are and intend to be independent contractors, and nothing in this Agreement or otherwise will cause them to have a relationship of employer and employee, principal and agent, master and servant, joint venturers, members of a joint enterprise, partners or legal representatives. Neither party shall have any authority to represent the other nor to make any commitment for the other. EVENT ORGANIZER M (Specify Title) CITY OF OSHKOSH Mark A. Rohloff, City Manager And: Pamela R. Ubrig, City Clerk APPROVED AS TO FORM: Lynn A. Lorenson, City Attorney ( 0 OOJ HKOIH ON THE WATER MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: May 18, 2011 RE: Approval of Special Event Agreement with EAA AirVenture Oshkosh BACKGROUND Last year the Common Council approved a Special Event ordinance for the City of Oshkosh. The ordinance, in very general terms, requires organizers of special events that use public facilities; requires extraordinary services from the City, or meets other specified criteria, such as size or hours of operation, to obtain a special events permit from the City. Applicants are required to complete an application form which provides basic information about their event. Applicants then meet with city staff to review the event and discuss any concerns or services that may be necessary to help make the event successful. The Council ultimately reviews all of the special event information, including any extraordinary services and expenses associated with the event. The ordinance requires that the Council make the final decision approving, approving with conditions, or denying the event's application. The special event ordinance requires that events submit their application each year. However, the ordinance contemplates and attempts to accommodate various circumstances which may arise, such as an event or series of events that will be held on various dates within a specific year, as well as larger events that by necessity must be planned several years in advance of the actual event. The ordinance sought to accommodate the larger, long -term events by allowing event organizers the option of entering into a separate, multi -year contract with the City which would allow organizers to obtain a greater level of certainty for planning events into the future. The ordinance specifies that agreements must be approved by the Council. However, the Council would not review the event again until the term of the event contract expires. In its review of proposed event contracts, the Council can approve any lawful term or requirement that is consistent with the spirit, if not the letter, of the special event ordinance. ANALYSIS The Experimental Aircraft Association, Inc. has filed a special event application for its long- running AirVenture event. Because of the size, and the nature, of the event, EAA is requesting that the City enter into a multiyear special event agreement. City staff has met with representatives of EAA and as a result of those meetings have prepared an Agreement granting EAA permission to hold their AirVenture event for a term without an annual review and approval by the Council. Once the contract term has expired, then EAA would be subject to another Council review of the AirVenture event. It is important to clarify that this contract would apply only to the AirVenture event, and does not apply to other special events organized or hosted by EAA. It is also important to note that pursuant to the terms of the proposed agreement, EAA will be required to submit an annual special event application providing the most current information for the event. City staff will continue to meet, discuss, and plan with EAA the AirVenture event on an annual basis. City staff believes that they have a very cooperative relationship with EAA regarding the preparation for this event. Staff does not believe that the proposed agreement would change this relationship or the City's internal review of this event. In addition to the other terms of the agreement, the City retains its police powers to act when necessary for the protection of the public health, safety, and welfare. When City staff identifies public health, safety, and welfare issues of concern during the event review process, those issues will be discussed with EAA prior to the City's alteration of EAA's plans. In emergency situations, however, the City retains all of its rights to act under its police powers to protect the public health, safety, and welfare. The Agreement provides that the City will work with EAA to provide the necessary agreed upon services in support of this event, and that EAA will reimburse the City for the actual, reasonable cost of providing those extraordinary services which may be required. Those agreements must provide for reimbursement according to the City's Special Events Fee Schedule for each year. For example, the Event requires extraordinary fire services, traffic signage services, and police traffic control services be provided. The City and EAA will also enter into separate agreements for the provision of those services with the rates for the various personnel and equipment as specified in the Special Events Fee Schedule which the Council approves annually. The term of the Agreement is initially for five (5) years and is automatically renewable for additional five (5) year periods unless terminated by one of the parties. Termination may be either for material breach (for "cause ") of the agreement or for convenience (without "cause "). If the termination is for convenience, EAA requested that the agreement include a provision for discussion prior to termination and a longer notice period prior to termination. The proposed agreement would allow the City to terminate upon 180 days notice FISCAL IMPACT As described in the agreement. RECOMMENDATION Section VI.(C) of the Special Events Ordinance requires that the City Manager provide the Council with a recommendation regarding event applications. In this instance, the City Manager recommends that the Council approve both the AirVenture event as proposed, as well as the 5 year agreement as proposed. Respectfully Submitted, Lynn A. Lorenson City Attorney Approved: Mark A. Rohloff City Manager