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HomeMy WebLinkAbout43. 16-156MARCH 22, 2016 16-156 RESOLUTION (CARRIED__7-0____LOST________LAID OVER________WITHDRAWN________) PURPOSE: APPROVE AMENDED SPECIAL EVENT AGREEMENT WITH EXPERIMENTAL AIRCRAFT ASSOCIATION (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 the amended 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 one 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. � City of Oshkosh i�a� 200 N. Campbell Rd. �i Oshkosh, WI 54902 OJHKOIH �920) 232-5304 (920) 232-5307 FAX on TMe w�ten TO: Honorable Mayor and Members of the Common Council FROM DATE: RE: Kathryn Sneil, Speciai Events Coordinator March 11, 2016 Approve Amended Special Event Agreement with Experimental Aircraft Association, Inc. BACKGROUND In 2010 the Common Council approved a Special Event Ordinance for the City of Oshkosh. The Special Event Ordinance requires that events submit their application each year. However, the Ordinance contempiates 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 contact with the City which would allow organizers to obtain a greater level of certainty for planning events in the future. The Ordinance would not review the event again until the term of the event contract expires. In its review of the 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. In March of 2011, because of the size, and the nature, of the event, EAA requested and was granted a multiyear special event Agreement. The term of this Agreement was initially for five (5) years and is automatically renewable for additional five (5) year periods unless terminated or changed by one of the parties. With the hiring of a Special Events Coordinator, the staff has reviewed the Agreement and made minor clarification and grammatical corrections, therefore requiring an adjustment to the initial Agreement. FISCAL IMPACT None. RECOMMENDATION Staff recommends approval of the Agreement as proposed. Respectfully Submitted, � Kathryn Snell Special Events Coordinator Approved: _ �'_._._--�,����� Mark A. Rohloff City Manager AGREEMENT FOR SPECIAL EVENT THIS AGREEMENT is made on the 9th day of March, 2016, 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 af 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 reviewand approval. 1. PURPOSE. EAA desires to hold the following event: EAA� AIRVENTURE� OSHl40SHT"" (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 is 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 whilecomplying with the City's Special Event Ordinance. 1 of 5 2. TERM. The Term of this Agreement shall be for five (5) years commencing on January 1, 2016 and terminating on December 31, 2020. This Agreement shall automatically renew for additional five (5) year periods unlessterminated by either party as provided in this Agreement. 3. APPLICATION. EAA shall complete and submit to the Office of the City Special Events Coordinator a new Special Event Application each year during the term of this Agreement at least forty-five (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 shalt 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 planswhen 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 pursuantto 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 Events Ordinance. EAA agrees to use all reasonable efforts toensure compliance with these rules and regulations by all participants, attendees, and vendors. 5. OTHER PERMITS AND LICENSES. EAA shall require in its agreement 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 forthe 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 Cityfor 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 ofthese 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 intothis Agreement and enforceable as part of this Agreement. 2 of 5 The City shall be responsible for providing EAA with an estimate of costs forextraordinary 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 the 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 forany other reason or for no reason. EAA may terminate this Agreement at any time, without cause, by giving the 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 matterwith 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 notice. 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 thatthe 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 formallyenter into written terms. 3of5 i 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, INDEMNIFACTION, AND HOLD HARMLESS REQUIRED. Each year at least thirty (30) business days prior to the start of each year's Event, Event Organizershall file with the Office of the City Special Events Coordinator 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 Special Events Coordinator If to Event Organizer: Experimental Aircraft Association, Inc. 3000 Poberezny Road Oshkosh, WI 54902 Attention: Executive Vice President 4of5 The individual(s) signing this Agreement has the authority to enter into this Agreementon behalf of the organizer(s) of the Special Event. 13. INDEPENDENT CONTRACTOR. The City and EAA understand and agree that theyare 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. Experime t I Aircraft Association, Inc. By: % G " Executive Vice President and CFO (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 5 of 5