PROFESSIONAL MANAGEMENT SERVICES FOR THE HARBORVIEW CENTER
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AGREEMENT
Between
CITY OF CLEARWATER
and
GLOBE FACILITY SERVICES. INC.
for
PROFESSIONAL MANAGEMENT SERVICES
for the
HARBORVIEW CENTER
((
/ / ../'
-~-, r'
()
ARTICLE
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INDEX
Definitions and Identifications
Scope of Services
Office Space . . .
Parking & Storage
Use by the City
Employees
Compensation . .
Ownership
Fiscal Responsibility
Expendable Supplies
Operating Budget . . .
Operating Funds
Indemnification and Insurance
Contract Monitoring & General Manager
Term of the Agreement .......
Marketing and Capital Investments by Firm
Capital Improvements
Conflicts of Interest
Compliance with Laws .
Independent Contractor
Facility Closure . . .
Waiver of Rights
Termination of Agreement
Force Majeure
Assignment . . . . . .
Personnel . . . .
User/Rental Agreements
Procedure for Handling Income
Notices .......
Equal Opportunity Employment and W/MBE
Requirements . . . . . . .
Severability . . . . . . . .
All Prior Agreements Superseded; Governing
Law and Venue . . . . . .
Amendments to Agreement ....
City and Facility Names and Logos
Truth-in-Negotiation Certificate
EXECUTION PAGE
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Revised - 01/09/95
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TABLE OF CONTENTS
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
ARTICLE 1 .................................................... 3
DEFINITIONS AND IDENTIFICATIONS
1.1 Finn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
1.2 Contract Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
1.3 City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
1.4 The Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
1.5 Fiscal Year ............................................. 4
1.6 Profit and I...oss . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . .. . .. 4
1.7 Profit...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '. 4
1. 8 I...oss.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
ARTICLE 2 .................................................... 4
SCOPE OF SERVICES
2.1 (FIRM to furnish management sezvices) ........................... 4
2.1.1 (Establish temporary rentals) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
2.1.2 (Manage FACUlTY in accordance with Operations Manual) ......... 5
2.1.3. (Supervise management) ................................ 5
2.1.4 (Authority to negotiate contract) ........................... 5
2.1.5 (FIRM shall maintain the FACILITY) . . . . . . . . . . . . . . . . . . . . . . .. 6
2.1.6 (Administer the FACILITY to the extent prescribed) .............. 6
2.1.7 (Supervise and direct employees) . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
2.1.8 (Duty and responsibility of the FIRM) . . . . . . . . . . . . . . . . . .. . . . .. 6
2.1.9 (Administer, assure compliance with) ........................ 6
2.1.10 (FIRM shall obtain approval). . . . . . . . . . . . . . . . . . . . . . . . . .. .. 7
2.1.11 (All revenues included in gross revenues) . . . . . . . . . . . . . . . . . . . . " 7
2.1.12 (FIRM allowed to book events) . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
2.1.13 (Execute rental agreements) .............................. 7
2.1.14 (Submit a written report concerning activities) . . . . . . . . . . . . . . . . . .. 7
2.1.15 (Maintain FACUlTY in condition received) . . . . . . . . . . . . . . . . . . .. 8
2.1.16 (Furnish Supervisory service) ............................. 8
2.1.17 (Establish rates) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 8
2.1.18 (Prepare operating budget) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
2.1.19 (Comply with spending limitations) ......................... 8
2.1.20 (pay for all operating and related expenses) .................... 8
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2.1.21 (After approval from the City Attorney, institute own name) ......... 9
2.1.22 (Hold in trust, ticket revenues) ............................ 9
2.1.23 (Submit copies of monthly records and reports). . . . . . . . . . . . . . . . " 9
2.1.24 (Submit copies of all bank statements) . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1.25 (Ongoing relationship with boards) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1.26 (Provide a marketing plan) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1.27 (FIRM agrees to act as collection agent for CITY on sales tax) .. . . . . . . 10
2.1.28 (FIRM shall cause acts necessary to FACILITY operation) .......... 11
2.1.29 (Honor and manage until expiration all current contracts) . . . . . . . . . . . . 11
ARTICLE 3 .................................................... 11
OFFICE SPACE
3.1 (CITY shall provide FIRM with office space) . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE.4 .................................................... 11
PARKING & STORAGE
4.1 (CITY shall provide FIRM with unrestricted egress and ingress) . . . . . . . . . . . . 11
4.2 (CITY shall approve any pay for Park program) . . . . . . . . . . . . . . . . . . . .. . 11
ARTICLE 5 .............................................. 12
USE BY THE CITY
5.1 (CITY shall have the right to use the FACILITY subject to availability) . . . . . . . 12
ARTICLE 6 .................................................... 12
EMPLOYEES
6.1 (All personnel shall be employees of the FIRM) ...................... 12
6.2 FIRM employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 7 .................................................... 13
COMPENSATION
7.1 Pre-opening. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Management Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Additional Percentage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 Parties agree if improvements bonds issued, comply with IRS ............. 13
7.5 (Pay percentage fee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.6 (Revenues defmed) ........................................ 14
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7.6.1 (Sales tax and revenues collected by Parks and Recreation) .......... 14
7.7 (Operating expenses include) .................................. 14
7.8 (Travel expenses of individuals) ................................ 15
7.9 (No deductions for depreciation, interest, etc...) . . . . . . . . . . . . . . . . . . . . . . 15
7.10 Operating wss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.11 Restaurant Revenue ................... . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 8 .................................................... 16
OWNERSHIP
8.1 CITY Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.2 CITY Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 9 .................................................... 16
FISCAL RESPONSmlL1TIES
9.1 (Maintain records) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.2 (Financial reports) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.3 (Audit). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.4 (Use forms acceptable to the CITY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.5 (CITY request additional fmancial) .............................. 17
9.6 (CITY will make available all funds necessary) . . . . . . . . . . . . . . . . . . . . . . . 17
9.7 (Conduct inventory) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.8 (Equipment remain the property of the CITY) ....................... 18
9.9 (CITY to provide sexvices previously supplied) . . . . . . . . . . . . . . . . . . . . . . . 18
9.10 (Requests for capital) ....................................... 18
9.11 (FIRM employees bonded) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 10 ................................................... 18
EXPENDABLE SUPPLIES
10.1 (FIRM responsible for purchasing all expendable supplies) ............... 18
ARTICLE 11 ...................................................19
OPERATING BUDGET
11.1 (Present a line item budget) ................................... 19
11.1.1 (Gross revenues) ..................................... 19
11.1.2 (Departmental operating expenses) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.1. 3 (Departmental income) ................................. 19
11.1.4 (Administrative and general expenses) . . . . . . . . . . . . . . . . . . . . . . . . 19
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11.1.5 (Marketing , advertising and promotion expenses) . . . . . . . . . . . . . . . . . 19
11.1. 6 (Energy costs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.1. 7 (Repairs and maintenance) ............................... 19
11.1.8 (Cash flow budget) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.2 (Operating budget shall receive prior CITY approval) .................. 19
11.3 (FIRM to manage within budget) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 12 ................................................... 20
OPERATING FUNDS
12.1 (Advance sufficient operating funds) ............................. 20
ARTICLE 13 ................................................... 20
INDEl\1NIFICATION AND INSURANCE
13.1 (FIRM hold CITY harmless) .................................. 20
13.2 (Further hold CITY harmless) ................................. 20
13.3 (Execution of Agreement obligates FIRM to comply) . . . . . . . . . . . . . . . . . . . 20
13.4 (FIRM agrees to obtain insurance coverage) . . . . . . . . . . . . . . . . . . . . . . . . . 21
13 .4.1 (Worker's Compensation) ............................... 21
13.4.2 (Professional liability insurance) ........................... 21
13.4.3 (Comprehensive general liability insurance) .................... 21
13.4.4 (Umbrella-type liability insurance) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.4.5 (Automobile liability insurance) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13.5 (FIRM shall provide CITY certification of coverage) . . . . . . . . . . . . . . . . . . . 22
13.6 (Notwithstanding, FIRM'S obligation to indemnify) ................... 22
ARTICLE 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CONTRACT MONITORING & GENERAL MANAGER
14.1 Contract monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.2 Contract administrator ...................................... 22
14.2.1 (Shall be liason between FIRM and CITY) . . . . . . . . . . . . . . . . . . . . . 22
14.2.2 (Responsible for distributing information) ..................... 23
14.2.3 (Responsible for monitoring and assessment of quality of services) . . . . . . 23
14.3 General manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14.3.1 (Day-to-day liason) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14.3.2 (Day-to-day management) ............................... 23
14.3.3 (Providing supervision and direction to FACiliTY employees) . . . . . . . . 23
14.4 (General manager removable for cause) ........................... 23
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ARTICLE 15 ................................................... 23
TERMS OF THE AGREEMENT
15.1 Term ................................................. 23
15.2 Extension Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.3 Proration............................................... 24
15.4 CITY retains right to close FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 16 ................................................... 24
MARKETING INVESTMENTS BY FIRM
16.1 Marketing Fund .......................................... 24
ARTICLE 17 ................................................... 24
CAPITAL IMPROVEMENTS
ARTICLE 18 ................................................... 26
CONFLICTS OF INTEREST
18.1 (Disclose possible conflict) ................................... 26
18.2 (FIRM will perform in best interest of the CITY) ..................... 26
ARTICLE 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
COl\.1PLIANCE WITH LAWS
19.1 (FIRM agrees to comply) .................................... 26
ARTICLE 20 ................................................... 26
INDEPENDENT CONTRACTOR
20.1 (FIRM is independent contractor) ............................... 26
ARTICLE 21 ................................................... 27
FACILITY CWSURE
21.1 (CITY retains right to close FACILITY) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 22 ..................................'................. 27
WAIVER OF RIGHTS
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22.1 (In event of breach, constitutes waiver) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 23 ................................................... 27
TERMINATION OF AGREEMENT
23.1 (Default)............................................... 27
23.2 (In the event termination) .................................... 28
23.3 (In the event of termination pursuant to IRS) ........................ 28
23.4 (CITY may assume work) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23.5 (Constitute events of default) .................................. 28
23.5.1 (Occurrence of act or ommission on part of FIRM) ............... 28
23.5.2 (Filing by or against FIRM for bankruptcy) .................... 28
23.5.3 (Abandonment or discontinuance by FIRM) .................... 29
25.3.4 (Failure of FIRM to account for and pay CITY) ................. 29
23.5.5 (Cessation of deterioration of services) ....................... 29
23.6 (Remedies and rights in no way affect other right) . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 24 ................................................... 29
FORCE MAJEURE
24.1 (Not in default if prevented by) ................................ 29
ARTICLE 25 ................................................... 30
ASSIGNMENT
ARTICLE 26 ................................................... 30
PERSONNEL
26.1 (General Manager responsible for operation) ........................ 30
26.2 (Input regarding the General Manager) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
26.3 (All personnel employees of the FIRM) ........................... 30
ARTICLE 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
USERlRENTAL AGREEMENTS
27.1 Authority to execute user/rental agreements . . . . . . . . . . . . . . . . . . . . . . . . . 31
27.2 Agreements assigned to the FIRM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 28 ................................................... 31
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PROCEDURE FOR HANDLING INCOME
28.1 (Income)............................................... 31
28.2 (Operating account in CITY'S name) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
28.3 (Cash control) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 29 ................................................... 32
NOTICES
ARTICLE 30 ................................................... 33
EQUAL OPPORTUNITY EMPLOYMENT AND WIMBE GOALS
30.1 (FIRM agrees that it will not discriminate) ......................... 33
ARTICLE 31 ................................................... 33
SEVERABILITY
ARTICLE 32 ................................................... 34
ALL PRIOR AGREEMENTS SUPERSEDEd; GOVERNING LAW AND VENUE
ARTICLE 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
AMENDMENTS TO AGREEMENT
ARTICLE 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CITY AND FACILITY NAMES AND LOGOS
Use of CITY and FACILITY Name and Logo ............................34
ARTICLE 3S ................................................... 35
TRUTH-IN-NEGOTIATION CERTIFICATE
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This Agreement between THE CITY OF CLEARWATER, a municipal corporation, organized
and existing under the laws of the State of Florida, and having its principal office at City Hall, 112 S.
Osceola Avenue, Clearwater, Florida 34618-4748, hereinafter referred to as the "CITY", and GLOBE
FACILITY SERVICES, INC., a Florida Corporation with its principal office located at 5405 Cypress
Center Drive, Suite 100, Tampa, Florida, hereinafter referred to as the "FIRM".
RECITALS
WHEREAS, the CITY currently owns, operates and manages the Harborview Center hereinafter
referred to as the "FACILITY"; and
WHEREAS, the CITY has determined that the interests of the FACILITY and the citizens of
Clearwater require that the management of the FACILITY be conducted by a private management entity,
which has the experience and capability of providing quality management and operational services at the
FACILITY; and
WHEREAS, the CITY has set the following goals to be pursued by a private management entity
including; the efficient operation of the FACILITY, while minimizing the net cost to the CITY; the
safeguarding of the CITY'S capital investment through the exercise of the highest standards of
maintenance and preservation; the active solicitation, promotion and co-promotion of events to maximize
the revenues to the CITY; and
WHEREAS, the CITY through Request For Interest solicited proposals from private management
entities to accomplish the above; and
WHEREAS, the CITY Administration, on November 1, 1994, selected the FIRM as the successful
proposer; and the City Commission on November 29, 1994, endorsed that selection, and;
WHEREAS, the CITY has determined that it requires the services of a private, management entity
to manage the FACILITY in all of its activities and operations, including, but not limited to, the rental
of space, advertising, promotion, marketing/sales, events management, box office, public relations,
procurement, maintenance, security, custodial and support services including, but not limited to, food
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and beverage requirements for conferences, conventions, exhibitions, performance, special events, and
any and all convention events and support services taking place in the FACILITY as deemed necessary
by the FIRM and CITY; and
WHEREAS, the FIRM, by reason of the expertise of its principals in facility management, is
qualified to manage and operate the FACILITY on behalf of the CITY in accordance with this Agreement
for the FIRM'S services as provided herein.
NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants
and payments hereinafter set forth, CITY and FIRM agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and provisions
which follow, the definitions and identifications set forth below are assumed to be true and correct and
are agreed upon by the parties.
1.1 FIRM: Globe Facility Services, Inc. as the management firm selected to perform the
services pursuant to this Agreement.
1.2 CONTRACT ADMINISTRATOR: The City Manager or his/her designee.
1.3 CITY: City of Clearwater, a municipal corporation of the State of Florida.
1.4 THE FACILITY. The Harborview Center located at 320 Cleveland Street, including the
entrances, grounds, sidewalks, and parking areas surrounding it and adjacent thereto. The
Harborview Center includes the exhibit halls, meeting rooms, common areas, lobby areas,
executive offices, storage and utility facilities, box office and other spaces, excluding the
second floor but specifically excluding the Stein Mart, Inc. department store and any
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independent restaurant operations. A diagram of the FACILITY is attached hereto as
Exhibit A. The CITY will remain the sole owner of the FACILITY.
1.5
FISCAL YEAR. For purposes of this Agreement, the term "fiscal year" shall mean
successive twelve (12) month periods commencing October 1 and concluding
September 30.
1.6
PROFIT AND LOSS. The calculation of profit and loss for the FACILITY shall be the
result of reducing operating revenues, as further defined in Article 7, by operating
expenses, as further defined in Article 7.
1.7
PROFIT. For the purposes of this Agreement, the term "profit" is defined as the
positive difference of Revenues minus expenditures on a cash basis at the end of the
audited year, as further defined in Article 7.
1.8
LOSS. For the purposes of this Agreement, the term "loss" is defined as the negative
differences of Revenues minus expenditures on a cash basis at the end of the audited year,
as further defined in Article 7.
ARTICLE 2
SCOPE OF SERVICES
2.1 The FIRM hereby agrees to perform and furnish management services, systems and
materials needed to operate, supervise, manage and maintain the FACILITY in the most
efficient manner consistent with operations of other similar facilities, and the CITY agrees
to provide the funds reasonably required to carry out such purposes during the term of this
Agreement. It is the intent of the parties that the FIRM will have authority over the day-
to-day operation of the FACILITY and all activities therein, but subject to existing
contracts and subject to ordinances and guidelines established by the CITY. The FIRM'S
authority shall also be subject to contract and ordinances which from time to time hereafter
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may be established by the CITY, but which shall not unreasonably interfere, impede or
impair the ability of the FIRM to effectively manage the FACILITY.
The FIRM's obligations shall include, but not be limited to, the performance of the
following obligations, subject to controls and restrictions as stated elsewhere in the
Agreement and in an Operational Manual to be prepared by September 1, 1995, by FIRM
and reviewed and approved by the Contract Administrator, and will be attached as
Exhibit B.
2.1.1 Establish temporary rentals of spaces within the FACILITY on behalf of the CITY.
2.1.2 Manage the FACILITY in accordance with the Operational Manual and the terms of this
Agreement, including, but not limited to, purchasing, payroll, fire prevention, security,
routine repairs, janitorial services, ticketing, promotions, advertising, and energy
conservation.
2.1.3 Supervise management, including, but not limited to, crowd control, security, admission
procedures, supervision of box office, and servicing of users such as conventions and
entertainment.
2.1.4 Negotiate and contract for events to be held at the FACILITY and for services and
products pertaining to the FACILITY, including, but not limited to, the following:
2.1.4.1.
2.1.4.2.
2.1.4.3.
2.1.4.4.
2.1.4.5.
2.1.4.6.
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Conventions, trade shows, meetings, and banquets;
Entertainment;
Sports;
Consumer shows;
All other forms of activity and entertainment that can properly be housed
or exhibited at the FACILITY; and
Service contracts, such as security, cleaning and electrical.
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2.1.5 Maintain the FACILITY, including the equipment, materials and supplies referenced in
Section 9.7 of this Agreement, including any improvements made during the term of this
Agreement, in a manner consistent with other similar facilities, based on the International
Association of Arena Managers. At the conclusion of the term of this. Agreement or any
extensions thereto, the FIRM shall return the FACILITY, including all equipment and any
improvements made during the term of the Agreement to the CITY. All losses in
inventory of CITY -owned equipment shall be documented by FIRM as soon as such losses
are discovered by FIRM and the CITY shall be promptly notified. FIRM shall prepare
and submit to the Contract Administrator a quarterly report on maintenance and
breakdowns of all major pieces of installed and portable equipment.
2.1.6 Administer the FACILITY to the extent prescribed in this Agreement. The FIRM shall
not have authority to encumber any real or personal property owned by CITY.
2.1.7 Supervise and direct all FIRM'S employees and personnel.
2.1.8 Maintain detailed, accurate and complete financial and other records of all of its activities
under this Agreement in accordance with generally accepted accounting principles and
CITY shall have access to such records. In furtherance of its services to be provided,
pursuant to this subparagraph, and elsewhere in this Agreement, FIRM may use its own
proprietary computer software which, in such event, shall remain the sole property of the
FIRM.
2.1.9 Administer, assure compliance with and negotiate service contracts required in the
ordinary course of business in operating the FACILITY and rental and lease agreements
for the operation and maintenance of the FACILITY. Such agreements will be executed
by the FIRM in its own name. Such contracts shall contain such indemnification and
insurance requirements as determined by the City Attorney. The Contract Administrator
shall be provided copies of such contracts within ten (10) days after execution. No service
contract or rental or lease agreements shall be entered into with an expiration date after
the expiration of the initial term of this Agreement unless approved by the City
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Commission. If this Agreement is extended to include option years, no service contracts
shall be entered into within such option years with a term beyond the expiration date of
the extension period unless approved by the City Commission. All service contracts and
rental and lease agreements shall contain a clause that the FIRM shall have the right to
unilaterally terminate these contracts if the CITY should decide to close the FACILITY
with no recourse against the FIRM or CITY.
2.1.10 FIRM shall obtain approval from CITY before entering into service contracts with its
parent, affiliates, or related entities for necessary services. Any contract entered into
between FIRM and its subsidiary and/or affiliate or related entity shall be at terms and for
prices customarily charged by such parent, affiliate or subsidiary company for comparable
goods and services elsewhere and are competitive within the industry. Documentation
shall be submitted in a timely manner to the Contract Administrator evidencing the
competitive nature of the goods or services obtained.
2.1.11 All revenues earned pursuant to this Agreement, which are earned within the term of this
Agreement, shall be included in gross revenues for the FACILITY not including revenue
generated by Parks and Recreation program.
2.1.12 FIRM and its affiliates or related entities will be allowed to book and promote events at
the FACILITY at prevailing rates, fees and prices or as approved by the Contract
Administrator. FIRM shall obtain prior approval from Contract Administrator for events
in which the FIRM, affiliates or related entities are financially involved.
2.1.13 Require that all users of the FACILITY execute rental agreements in accordance with the
requirements of Article 27 herein.
2.1.14 Submit a written report to the Contract Administrator at least monthly, or as otherwise
voluntarily agreed on between the parties hereto, no later than the close of the following
month concerning its activities in the operation, management, supervision and maintenance
of the FACILITY. Such report shall, inter alia, set forth bookings, receipts from all
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sources, expenditures and such other and further information as the CITY may require or
request.
2.1.15 FIRM agrees to maintain the FACILITY in the condition received, reasonable wear and
tear excepted. However, at no time shall the maintenance of the FACILITY fall below
industry minimum standards. FIRM shall provide the CITY a report on the last day of
each quarter during the term of this Agreement of all FACILITY maintenance that was
performed during the preceding quarter.
2.1.16 Furnish such supervisory servIces, as are herein set forth, as shall ensure that the
FACILITY and services shall be operated in a manner comparable to similar facilities.
2.1.17 Establish and adjust prices, rates and rate schedules for user and occupancy agreements
to be negotiated by FIRM in the course of its management of the FACILITY. Any rates
established for the use of the FACILITY shall be comparable to rates charged for similar
facilities in the Southeastern United States. FIRM shall provide CITY a copy of the
proposed rate schedule and the supporting data prior to implementation of the new rates.
2.1.18 Prepare a proposed annual operating budget in accordance with the CITY'S approved
format, and submit it to the CITY, in accordance with established City schedules.
2.1.19 Comply with the spending limitations imposed upon such budget, including any
amendment(s) thereto as authorized. However, if extraordinary events occur which could
not reasonably be contemplated at the time the budget was prepared, the FIRM may submit
an amendment to the budget to the CITY for review, and approval or denial by the City
Commission.
2.1.20 Pay all operating and related expenses for the FACILITY from CITY accounts established
pursuant to Article 9 of this Agreement.
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2.1.21 After approval from the City Attorney, institute in its own name as. managing agent for
the CITY, but in any event, at the reasonable expense of the CITY, any and all legal
actions or proceedings to collect charges, rents or other income generated by and due to
the CITY, or to cancel or terminate any license, use or concession agreement for the
breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire
of the CITY after approval by the CITY. The FIRM agrees to the extent feasible to use
the services of the City Attorney's Office when prosecuting said legal actions. However,
subject to the approval of the City Attorney and to the extent it is not feasible to use said
services, outside legal counsel may be utilized and such expense shall be included as an
operating expense of the FACILITY.
2.1.22 Hold in trust, in an interest-bearing account in a local qualified public depository in
Clearwater, any ticket sale revenues, which it receives in the contemplation of or arising
from, an event pending the completion of the event. Such trust monies are to be held for
the protection of ticket purchasers, the CITY and the FIRM, and to provide a source of
funds, as required for such payments to performers and for such payments of direct
incidental expenses in connection with the presentation of events as may be required to be
paid prior to or contemporaneously with the event. Following the satisfactory completion
of the events, the FIRM shall make a deposit into the CITY'S operating account(s) for the
FACILITY. Interest accrued in the trust account(s) shall be part of the operating income
so long as the FIRM is not required to pay such interest to the promoter pursuant to its
respective license agreement with the promoter. Bank service charges, if any, on such
account(s), shall be deducted from interest earned.
2.1.23 Submit, within ten (10) days following the close of each month, to the CITY, copies of
records and reports, relating to the receipts and expenditures of all events occurring during
such previous month. Such records and reports shall be as customarily prepared by the
FIRM at similar facilities operated by the FIRM and will meet the CITY'S needs.
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2.1.24
2.1.25
2.1.26
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Require the local qualified public depository utilized by the FIRM to submit to the CITY'S
Finance Director on a monthly basis, copies of all bank statements concerning all trust
accounts established pursuant to this Agreement.
Establish and have an ongoing relationship with various boards and committees of the
CITY.
Provide, within forty-five (45) days following the commencement of this Agreement, a
marketing plan including a plan for the promotion of the FACILITY, which shall contain
the following elements:
1) Market research;
2) Market position;
3) Marketing objectives;
4) Marketing strategies;
5) Booking priorities;
6) Targeted events-local, regional, national and international;
7) Targeted meetings, conventions and trade shows;
8) Event management and marketing as well as corporate sponsorships;
9) Event marketing;
10) Internal and external support staff;
11) Advertising opportunities at local, regional and national level;
12) Attendance at various trade shows, conventions and seminars; and
13) Incentive formulas for multiple event presenters.
Such marketing plan shall be revised, as necessary, by the FIRM, from time to time as
needed to maintain the plan current. During the preparation of said plan, the FIRM shall
solicit comments from the CITY and the appropriate boards and committees.
2.1.27 The FIRM agrees to act as a collection agent for the CITY on Sales Tax and shall remit
to the State of Florida said Sales Tax. In return for the FIRM acting as a collection agent
for the CITY, any discounts on the remittance of Sales Tax shall be revenues to the FIRM
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2.1.28
2.1.29
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and will not be included in the computations of additional percentage fees. Sales Tax shall
not be included in revenues for the FACILITY. Additionally, any late payment fees shall
be an expense of the FIRM.
The FIRM shall cause such acts and things to be done in and about the FACILITY as shall
be necessary to its operation, control, supervision and maintenance. Both the FIRM and
the CITY shall, throughout the term of this Agreement, comply with all statutes,
ordinances, laws, rules, regulations, orders and requirements by any Federal, State or
County government departments, commissions, boards and offices having proper
jurisdiction, in respect to the use or manner of the use of the FACILITY including the
construction, maintenance and operation thereof, as well as with all orders and
requirements of the CITY'S fire department or any other body which may hereinafter
exercise similar functions.
Honor and manage until their expiration all current contracts between vendors,
suppliers, tenants, users and the FACILITY, including the Stein Mart, Inc. agreement.
ARTICLE 3
OFFICE SPACE
3.1. The CITY shall provide the FIRM with necessary office space in the FACILITY and such
equipment as is necessary to manage the FACILITY. Such equipment shall be budgeted
and approved in the annual budget.
ARTICLE 4
PARKING & STORAGE
4.1. The CITY shall provide the FIRM with unrestricted egress and ingress to the FACILITY
for up to fifteen (15) employees and shall make available to the FIRM at no cost parking
spaces adjacent or in close proximity to the FACILITY.
4.2 CITY shall approve any Pay for Park program.
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ARTICLE 5
USE BY TIlE CITY
5.1. The CITY shall have the right to use the FACILITY or any part thereof subject to
availability for the benefit of the community for such purposes as including, but not
limited to, meetings and training classes without the payment of any rental or use fee,
except that direct out-of-pocket expenses incurred in connection with such uses and not
included in the approved budget for the FACILITY shall be paid by the CITY. CITY uses
of the FACILITY shall not compete with, nor conflict with, paying events booked by the
FIRM and shall be booked in advance upon reasonable notice. CITY use of the
FACILITY shall for the FIRM earn a Revenue Credit for the use of the space at the
prevailing published rate for the purpose of computing total FACILITY revenues and
incentive fees due the FIRM, except for five (5) days for CITY use which will earn the
FIRM no Revenue Credit and for Parks and Recreation regularly scheduled recreational
activities which will earn the FIRM a Revenue Credit equal to 60% of the prevailing rental
rate.
ARTICLE 6
EMPLOYEES
6.1. All personnel employed at the FACILITY shall be employees of the FIRM and not of the
CITY. The FIRM shall select the number, function, qualifications, compensation,
including benefits, of its employees and shall control the terms and conditions of
employment relating to such employees.
6.2. FIRM EMPLOYEES. The CITY shall not hire any of the employees of FIRM without
FIRM prior approval.
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ARTICLE 7
COMPENSATION
7.1 PRE-OPENING. As compensation to the FIRM for providing the services herein, the
CITY shall pay to the FIRM a fee of $8,400.00 per month until the official opening of the
FACILITY.
7.2 MANAGEMENT FEE. As partial compensation to the FIRM for providing the services
herein specified, the CITY shall pay the FIRM, for the term of this Agreement, beginning
with the official opening of the FACILITY, a management fee. The management fee shall
be $72,000.00 annually, payable in twelve (12) equal monthly installments of $6,000.00
each, on the first business day of each month of the term. After the third year of the
Agreement, on October 1, 1998, the management fee shall be adjusted annually by 50%
of the "Consumer Price Index for all Urban Consumers ("CPI-U"), U.S.", as maintained
by the U.S. Department of Labor, Bureau of Labor Statistics. Should the CPI-U exceed
10 % in anyone year, this provision shall be renegotiated by both parties.
7.3 ADDITIONAL PERCENTAGE FEE In addition to the management fee set forth above,
the FIRM shall be entitled to, and shall receive from the CITY, as a balance of its
compensation:
0% of Revenues between $0.00 and $400,000.00
5% of Revenues over $400,000.00
20 % of Profits
7.4 The parties agree that if bonds are issued for improvements to the FACILITY and IRS
regulations require it, the formula for compensation shall be amended to reflect
compliance with any applicable IRS regulations.
7.5 The CITY shall pay within thirty (30) days after presentation of an invoice to the Contract
Administrator eighty (80 %) percent of the additional percentage fee upon the submission
of year-end reports from FIRM. The remaining twenty (20%) percent shall be paid upon
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the completion of the year-end audit but in any event no later than ninety (90) days after
the end of the fiscal year subject to an adjustment depending on the results of the audit.
The CITY shall select the firm to conduct the audit.
7.6 Revenues for the FACILITY shall be defined to include, but not limited to:
1) Event ticket proceeds;
2) Rental income;
3) Concession income;
4) Merchandise sales income;
5) Advertising sales income;
6) Equipment rental fees;
7) Utility income;
8) Box Office income;
9) Miscellaneous operating income;
10) Parking income;
11) Leasing income; and
12) Food sales income.
7.6.1 Sales. tax and revenues collected by the Parks and Recreation Department shall not be
included as FACILITY Revenues.
7.7 Operating expenses shall include, but not be limited to:
1) Payroll, benefits, relocation costs, bonus and related costs;
2) Cost of operating supplies;
3) Advertising costs;
4) Cleaning expenses;
5) Data processing costs;
6) Dues, subscriptions and membership costs;
7) Insurance costs, including the costs of any premiums relating to such facilities;
8) Professional and management fees, including the Management Fee and Additional
Percentage Fee to be paid under this Agreement;
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9) Printing and stationery costs;
10) Postage and freight costs;
11) Equipment rental costs;
12) Minor repairs and maintenance, not inclusive of expenses relating to performing
capital improvements, as further defined in Article 17;
13) Security expenses;
14) Cost of office supplies;
15) Telephone charges;
16) Travel and entertainment expenses;
17) Cost of employee uniforms;
18) Exterminator and trash removal costs;
19) Parking expenses; and
20) Utility expenses.
7.8 All travel and professional expenses of FIRM employees shall be paid when included in
the approved annual budget of the FACILITY, and will pro-rate these expenses if the
FIRM'S employees conduct business on behalf of the FIRM or other FACILITIES. All
non-budgeted travel and professional expenses shall be paid only with the prior written
approval of the CITY.
7.9 The CITY agrees that operating expenses listed in 7.7 above shall not include deductions
for depreciation, interest or debt service; real estate taxes (or any other similar occupancy
tax or Federal and State income taxes); capital improvements; and Internal Service
Charges by the CITY.
7.10 OPERATING LOSS. After the third year of operation of the FACILITY, if the
expenditures are greater than the revenues for the FACILITY such that there is an
operational loss, the CITY shall deduct up to five (5 %) percent of the loss from the
FIRM's monthly fixed fee.
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7 .11 RESTAURANT REVENUES. No income or expenses from the independent restaurant(s)
operation shall be included in the FIRM's Revenues or Expenses, except for revenues or
expenses directly produced as the result of use of the FACILITY by events or attendees.
ARTICLE 8
OWNERSHIP
8.1
CITY OWNERSHIP. The ownership of the FACILITY including the real estate,
technical and office equipment and facilities, furniture, displays, fixtures and similar
property shall remain the ownership of the CITY. Property rights will not accrue to the
FIRM, with the exception of the proprietary computer software provided by the FIRM
which shall remain the sole property of the FIRM. All data maintained within such
software shall remain in the ownership of the CITY.
8.2
CITY RESPONSmILITIES. The. CITY will pay, keep, observe and perform, all
payments, terms, covenants, conditions and obligations under any bonds, debentures or
other security agreement or contract to which the CITY is hereunder bound.
ARTICLE 9
FISCAL RESPONSmILITY
9.1 The FIRM agrees to keep and maintain, at its office in the FACILITY, separate and
independent records, in accordance with generally accepted accounting principles, devoted
exclusively to its FACILITY management operations in Clearwater. Said books, ledgers,
journals, accounts, and records shall contain all entries reflecting the business operations
of the FIRM under this Agreement. All of the foregoing records shall be open for
examination and audit by the Contract Administrator or CITY designated and authorized
agents or personnel during FIRM's ordinary business hours.
9.2 The FIRM agrees to render, within thirty (30) days after the end of each month, financial
reports for the FACILITY including a balance sheet and statement of revenues and
expenditures (budget to actual) for the current month and year to date in accordance with
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generally accepted accounting principles. In addition, the FIRM will provide separate cash
receipts and disbursements report for each event held at the FACILITY during the month.
9.3 The FIRM agrees to meet with the Contract Administrator to answer questions relating to
the operation of the FACILITY and the financial reports. In addition, FIRM agrees within
sixty (60) days following each fiscal year to provide to the CITY, a certified audit report
on the accounts and records as kept by the FIRM for the FACILITY to be paid from
appropriate funds set aside in the operating budget. The FIRM shall utilize an external
auditor approved by the CITY to conduct an audit on the accounts and records of the
FACILITY in accordance with generally accepted auditing standards. A letter from said
accounting firm expressing its opinion as to the effectiveness of internal controls and a
management letter will accompany the audit report. At the option of the CITY and at its
expense, additional audits may be performed.
9.4 The FIRM agrees to use forms, accounting methods, internal controls and procedures for
its reports that are acceptable to the CITY.
9.5 The CITY may request additional financial or statistical reports with respect to the
FACILITY, and FIRM shall promptly provide same. It is agreed that such requests by
the CITY will be reasonable with respect to timing and frequency. Any and all costs for
such reports shall be included as an operating expense.
9.6 The CITY will make available to the FIRM for the operation, maintenance, supervision,
and management of the FACILITY, all funds necessary to pay all budgeted items of
expenses to the extent such funds are not then currently available in the FACILITY
operating account. To the extent the FIRM is unable to perform under this Agreement due
to the fact that required budgeted funds are not made available by the CITY, the FIRM
will not be considered in breach of this Agreement nor shall same be considered an event
of default.
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9.7
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The parties shall together conduct an inventory of all expetdable supplies, equipment and
fixed assets of the FACILITY and shall attach a copy of the results of such inventory,
signed by an authorized representative of each party, to this Agreement. This will be
Exhibit C.
9.8
Any data, equipment or materials furnished by the CITY to the FIRM and any such data,
equipment or materials that may be acquired for the CITY by the FIRM used at the
FACILITY shall remain the property of the CITY, and when no longer needed for the
performance of this Agreement, shall be returned to the CITY.
9.9
For the purpose of computing the FIRM'S Additional Percentage Fee, the CITY shall
provide, at no cost to the FACILITY or the FIRM, those goods and services customarily
supplied or provided, including, but not limited to, outside security, legal service or
outside maintenance. Such services shall not include those which are deemed to be the
responsibility of the FIRM as stated in this Agreement.
9.10
The parties agree that in the event that the FIRM requests a capital improvement, the
CITY will give reasonable consideration to such request (s) in formulating its budget in
light of competing municipal financial considerations.
9.11
All FIRM employees handling monies or designated as authorized signators on any
FACILITY accounts shall be sufficiently bonded to protect the FIRM'S and CITY'S
interests. Such bonds shall be in an amount not less than $500,000 and shall name the
CITY as loss payee as its interest may appear.
ARTICLE 10
EXPENDABLE SUPPLIES
10.1 The FIRM will be responsible for purchasing all expendable supplies for the operation of
the FACILITY. The FIRM will exercise prudent judgment in the purchase of said
supplies within budget guidelines provided to FIRM and may, if it deems appropriate,
utilize the services of the CITY'S purchasing division.
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ARTICLE 11
OPERATING BUDGET
11.1 The FIRM agrees that it will each year in accordance with the City's schedule prepare
and present a line item budget for the FACILITY which budget will follow and comply
with the existing CITY budget process or such other procedures which CITY may require.
Said budget shall include, at a minimum, a projected income and expense statement and
projected year-end balance sheet and statement of projected sources and applications of
funds. Additionally, the budget shall include but not be limited to the following detailed
projections:
11.1.1 Gross revenues by department and sources;
11.1. 2 Operating expenses by department;
11.1.3 Departmental incomes;
11.1.4 Administrative and general expenses;
11.1.5 Marketing, advertising, and promotion expenses;
11.1. 6 Energy costs;
11.1. 7 Repairs and maintenance; and
11.1.8 Cash flow budget.
The FIRM shall assure that its representatives are present at all necessary hearings and
meetings of the budget approval process related to the FACILITY.
11.2 The operating budget for the FACILITY for the initial contract year shall receive the prior
approval of the CITY. If the FIRM desires amending the approved budget, it shall do so
in accordance with established procedures for budget amendments.
11.3 It is understood that the FIRM shall have an approved budget effective October 1 of each
fiscal year. It is further understood that the FIRM will not exceed, commit or contract
to expend any sums in excess of those amounts allowed in the approved budget of the
CITY. In the event that the FIRM does overspend, it shall be responsible for said sum
and shall reimburse the CITY for said sum within thirty (30) days after the end of each
contract year, or the CITY may withhold said sum from the fee due the FIRM; provided,
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however, that the FIRM may transfer within the budget submitted from one line item to
the other line items without incurring responsibility or liability, so long as it does not
overspend the overall budget as submitted.
ARTICLE 12
OPERA TING FUNDS
12.1 The CITY will make available to the FIRM sufficient operating funds pursuant to the
approved budget for the FACILITY to the extent that such funds are not available in the
FACILITY operating accounts.
ARTICLE 13
INDEMNIFICA TION AND INSURANCE
13.1 FIRM shall indemnify, hold harmless and defend CITY, its agents, servants and
employees from and against any claim, demand or cause of action of whatsoever kind or
nature arising out of error, omission or negligent act of FIRM, its agents, servants or
employees in the performance of services under this Agreement.
13.2 FIRM further agrees to indemnify, hold harmless and defend CITY, its agents, servants
and employees from and against any claim, demand or cause of action of whatever kind
or nature arising out of any conduct or misconduct of the FIRM not included in subsection
13.1 above and for which the CITY, its agents, servants or employees are alleged to be
liable.
13.3 The execution of this Agreement by FIRM shall obligate FIRM to comply with the
foregoing indemnification provision; however, the collateral obligation of insuring this
indemnity must be complied with. Notwithstanding any other term or condition of this
Agreement, the above indemnification provision shall survive the termination of this
Agreement.
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13.4 The FIRM agrees to obtain insurance coverage in the manner provided herein and as
specified below, and agrees to maintain such required insurance in force, during the life
of this Agreement. No modification or change from these specifications shall be made
without CITY approval. However, either party may request, in writing, an annual review
to evaluate whether the insurance coverage required herein is reasonable or adequate to
insure the interests of the CITY. The CITY shall determine its cost for obtaining all
required insurance coverage specified herein and this amount shall be included as the line
item amount for insurance in the FACILITY'S annual operating budget. The FIRM shall
have the option of requesting CITY to purchase all or a portion of the coverage and, in
such event, the cost of such coverage purchased by CITY shall be deducted from the
amount allocated for insurance in its operating budget. In the event the FIRM elects to
purchase insurance coverage as required herein, any additional amounts due for insurance
coverage in excess of the line item amount allocated for insurance coverage as required,
shall be borne and paid for by the FIRM.
13.4.1 Worker's Compensation and Employers' Liability Insurance--as required by Chapter 440,
Florida Statutes, and any applicable Federal laws.
13.4.2 Professional Liability Insurance--in the minimum amount of Five Hundred Thousand
Dollars ($500,000.00).
13.4.3 Comprehensive General Liability Insurance--in the minimum amount of One Million
Dollars ($1,000,000.00) combined single limit per occurrence. Such policy will include
premises/operations, independent contractors and personal injury liability. Policy will
provide coverage for CITY and FIRM'S partners as additional insureds.
13.4.4 Umbrella-Type Liability Insurance--the FIRM shall carry a Five Million Dollar
($5,000,000.00) Umbrella-Type policy taking effect on top of the base One Million Dollar
($1,000,000.00) coverage required in Section 13.4.1 above. FIRM shall have the option
of purchasing the above-referenced U mbrella- Type policy for overall FIRM operations to
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provide the required coverage based upon which alternative is more cost effective. Policy
will provide coverage for CITY and FIRM'S partners as additional insureds.
13.4.5
Automobile Liability Insurance--in the mInImUm amount of One Million Dollars
($1,000,000.00) combined single limit per occurrence for all owned, hired and non-owned
vehicles.
13.5
The FIRM shall provide to the CITY certification of above required coverages, upon
execution of this Agreement. All policies required of the FIRM above shall be issued by
company(ies) authorized to do business in the state of Florida.
13.6
Notwithstanding anything to the contrary, the FIRM'S obligation to indemnify the CITY
shall survive the termination of this Agreement.
ARTICLE 14
CONTRACT MONITORING
&
GENERAL MANAGER
14.1 CONTRACT MONITORING. The CITY shall monitor the FIRM's compliance with the
term of this Agreement through the Contract Administrator. The FIRM also agrees to
name a specific individual to monitor the contract; whom at present shall be
Mr. Michel F. Sauers, the FIRM's President.
14.2 CONTRACT ADMINISTRATOR. The CITY'S Contract Administrator shall be the City
Manager or his/her designee and shall have such authority as set forth in this Agreement.
Any and all references in this Agreement requiring City participation shall mean the
Contract Administrator. The CITY'S Contract Administrator:
14.2.1
Shall be the liaison between the FIRM and the CITY on all matters relating to
this Agreement.
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14.2.2
Shall be responsible for ensuring that any information supplied by the FIRM
is'properly distributed to the appropriate CITY Departments.
14.2.3
Shall be responsible for the monitoring and assessment of the quality of
services provided by the FIRM and contract compliance by the FIRM.
14.3 GENERAL MANAGER. The FIRM agrees to name a qualified individual with
experience in the management of similar facilities as the General Manager of the
FACILITY. The General Manager:
14.3.1 Shall be the day-to-day liaison between the CITY and the FIRM on all matters
relating to this Agreement.
14.3.2 Shall be responsible for the day-to-day management and supervision of the
FACILITY.
14.3.3 Shall be responsible for providing supervision and direction to FACILITY
employees.
14.4 Complaints received by the CITY regarding the conduct or manner of operation of the
FACILITY by the General Manager shall be addressed by the FIRM.
ARTICLE 15
TERM OF THE AGREEMENT
15.1 TERM. The initial term of this Agreement approved by the City Commission on
January 6, 1995, shall be for a period commencing January 9, 1995, and ending
September 30, 1998.
15.2 EXTENSION TERM. The CITY shall have the right to extend the initial term for two
additional one-year periods commencing October 1, 1998, and ending
September 30, 2000.
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15.3 PRORATION. In the event that this Agreement shall terminate prior to the end of its
anticipated term, any Management Fees or Additional Percentage Fees payable to the
FIRM, pursuant to this Agreement, shall be computed prorata.
15.4 Notwithstanding any other term or condition of this Agreement, the CITY retains the right
due to financial or other considerations and in the CITY'S sole discretion, to close the
FACILITY at any time during the term of this Agreement or any extension thereof. In
such event, this Agreement shall terminate and neither party shall thereafter have any
rights or obligation except as otherwise provided in this Agreement.
ARTICLE 16
MARKETING INVESTMENTS BY FIRM
16.1 MARKETING FUND. The FIRM shall establish a Marketing Fund. The purpose of the
fund is to assist in attracting events and attendees to the FACILITY.
Each year FIRM shall contribute 10% of the Additional Percentage Fees earned for the
prior contract year to establish the Marketing Fund. Such Marketing Fund shall be used
to fund those matters contained within the FIRM'S approved Marketing Plan.
The Marketing Fund shall be administered jointly by the CITY and the FIRM. The FIRM
shall define the uses of the Fund and submit for City review.
ARTICLE 17
CAPITAL IMPROVEMENTS
The CITY will retain the responsibility for capital improvements to the FACILITY, however the
CITY is under no obligation to make such improvements. The CITY shall at its sole discretion define
Capital Expenditures for repairs, improvements and maintenance. The FIRM agrees to provide to the
Contract Administrator, in accordance with the CITY's requirements, a schedule of items that can be
reasonably anticipated as necessary capital expenditures. The purpose of such a schedule is to allow the
Contract Administrator to consider for inclusion such projects in its budget for the ensuing year and to
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prepare and update a long range (five year) capital expenditure budget. The FIRM's failure to list
particular items or projects shall not be deemed a waiver of CITY's responsibility to make such capital
improvements. "Capital Expenditures" means all expenditures for building additions, alterations, or
improvements and for purchases of additional or replacement furniture, machinery, or equipment, the
depreciable life of which, according to accepted accounting principles, is in excess of one (1) year. All
routine and minor repairs, maintenance, and equipment servicing shall be the responsibility of the FIRM
as an operating expense in accordance with the approved budget.
FIRM shall obtain approval of the CITY, through the Contract Administrator for repairs or Capital
Expenditures which are made to the FACILITY which cost exceeds Twenty-five Hundred Dollars
($2,500.00). FIRM shall further cause all necessary minor repairs and improvements to be made to the
FACILITY from those monies available in the annual operating budget.
The cost of such repairs shall be paid by FIRM from that line item of the operating budget
allocated for repairs. In the event repairs exceed the above stated amount, such repairs must be pre-
approved by the CITY as an amendment to the approved budget. Additionally, FIRM shall be
responsible for assuring that all repairs, replacements, and maintenance shall be of a quality and class
at least equal to the original work. Any replacement of an item contained on the inventory schedule to
be prepared prior to FACILITY opening or any new item added to the inventory shall be deemed the
property of the CITY.
However, if such repairs are of an emergency nature, FIRM shall make such repairs in accordance
with the following provisions:
CITY shall reimburse FIRM for the full amount of the emergency repair. An emergency repair
is defined herein as the repair of a condition which, if not performed immediately, creates an imminent
danger to persons or property and/or an unsafe condition at the FACILITY threatening persons or
property. The cost of any emergency repairs shall be reimbursed to FIRM from the capital or operating
budgets.
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ARTICLE 18
CONFLICTS OF INTEREST
18.1 The FIRM hereby certifies that it will make a complete disclosure to the CITY of all facts
bearing upon any possible conflict, direct or indirect, with its performance that it believes
any officer or employee of the CITY now has or will have. Said disclosure shall be made
by the FIRM contemporaneously with the execution of this Agreement and at any time
thereafter that such facts become known to the FIRM.
18.2 The CITY recognizes that the FIRM, or its affiliates, may enjoy indirect economic
benefits from the operation of the FACILITY. However, the FIRM agrees that it will
perform its obligation under this Agreement in a manner consistent with the best interest
of the CITY.
ARTICLE 19
COMPLIANCE WITH LAWS
19.1 The FIRM agrees to comply with all local, state and federal ordinances and laws, statutes,
rules, and regulations; provided that the CITY will cooperate to the extent necessary to
enable compliance by the FIRM.
ARTICLE 20
INDEPENDENT CONTRACTOR
20.1 The CITY and the FIRM agree that the only relationship to be created is one for supplying
management services and that the FIRM is an independent contractor and not an agent,
employee, or partner of the CITY.
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ARTICLE 21
FACILITY CLOSURE
21.1 The CITY retains the right, at its sole discretion, to permanently close the FACILITY.
The FIRM will comply with this decision and take on behalf of the CITY, whatever action
necessary to implement the decision. Such closure shall terminate this Agreement, but
shall not constitute a breach of this Agreement.
ARTICLE 22
WAIVER OF RIGHTS
22.1 In the event of any breach of any representation, covenant, warranty, or provision made
in this Agreement by either party, failure by the non-breaching party to assert or exercise
any right, remedy, or privilege, within one year after the actual or constructive notice or
knowledge of the breach is received or obtained, shall constitute a waiver of such right,
remedy, or privilege. No other waiver shall be effective, unless in writing, and then it
shall be effective only in the specific instance for which given. In no event shall any
waiver constitute a waiver of future rights, remedies, or privileges to which a party may
be entitled by virtue of any breach.
ARTICLE 23
TERMINATION OF AGREEMENT
23.1 FIRM shall be in a default hereunder and CITY shall thereafter have the right to terminate
this Agreement if (i) FIRM shall fail to pay any sum payable herein within five (5)
business days after same is due and payable; or (ii) FIRM shall fail to perform or comply
with any of the other terms, covenants, agreements or conditions hereof and such failure
shall continue for more than thirty (30) days after written notice thereof from CITY. In
the event that CITY reasonably determines that an event of default is not susceptible to
being cured within the thirty (30) day period, FIRM shall not be considered in default if
FIRM shall within such thirty (30) day period have commenced with due diligence and
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dispatch to cure such default and shall thereafter complete with dispatch and due diligence
the curing of such default.
23.2 In the event termination pursuant to Section 23.1 above is affected by the CITY, the FIRM
will be paid for work actually performed to the date of termination, plus any fee earned
to date of termination, less the cost to the CITY of making good any deficiencies,
correcting all work improperly performed, and any additional cost to the CITY for
removing or replacing the FIRM, exclusive of fees to firm(s) hired to replace the FIRM.
23.3 Upon the effective date of a termination notice pursuant to Section 23.1 above, the FIRM
shall (unless the notice directs otherwise) (i) promptly discontinue all services effected and
(ii) deliver or otherwise make available to the CITY all data, documents, procedures,
reports, estimates, summaries, and other such information and materials as may have been
accumulated by the FIRM in performing its obligations, whether completed or in process
unless said information is exempt from or does not constitute a "public record" within the
purview of the Public Records Law codified in Chapter 119, Florida Statutes.
23.4 In the event of termination pursuant to Section 23.1 above, the CITY may, in its
discretion, assume the work and see that the same is completed by agreement with another
party, including subcontractors of FIRM, or otherwise, all without liability to the FIRM.
23.5 In addition to the events of default set forth in Section 23.1, the following shall constitute
events of default which, upon the occurrence of, the CITY may terminate this Agreement:
23.5.1
The occurrence of any act or omission on the part of the FIRM that deprives
it of the rights, powers, licenses, permits, and authorizations necessary for the
lawful and proper conduct and operation of the services and activities
authorized;
23.5.2
The filing by or against the FIRM of any petitions in bankruptcy either
voluntary or involuntary, or the making by which the actions shall
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automatically be basis for termination and bar the passing of any benefits to
creditors, assignees, or transferees of the FIRM;
23.5.3
The abandonment or discontinuance by the FIRM, without written consent of
the CITY, of any or all of the operations and services permitted or required;
23.5.4
The failure of the FIRM to account for, and pay to the CITY, as provided
herein any and all amounts of gross revenue due and owing to the CITY from
the FIRM; or
23.5.5
The cessation or deterioration of services for a period that in the reasonable
opinion of the CITY, materially and adversely affects the operation of the
public services required to be performed by the FIRM.
23.6 The exercise by the CITY or FIRM of remedies and rights provided herein shall in no way
affect any other right or remedy available to the CITY or FIRM.
ARTICLE 24
FORCE MAJEURE
24.1 Except as otherwise provided herein, neither party shall be obligated to perform, and
neither party shall be deemed to be in default of its performance, if prevented by (a) fire
not caused by negligence of either party, earthquake, hurricane, wind, flood, act of God,
riot, or civil commotion, including the unavailability of sufficient fuel or energy to operate
the FACILITY, occurring at the FACILITY, or (b) any law, ordinance, rule, regulation,
or order of any public or military authority stemming from the existence of economic or
energy controls, hostilities, war, or govemmentallaw and regulation; or a labor dispute
which results in a strike or work stoppage affecting the FACILITY or services described
in this Agreement other than those occurring as a result of an act or omission of the
FIRM.
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Notwithstanding the above, in the event of an emergency threatening damage to persons
or property as determined by the FIRM, the FIRM shall act in an expeditious manner to
protect said persons or property.
-ARTICLE 2S
ASSIGNMENT
The CITY is entering into this Agreement in recognition of and in reliance on the expertise,
reliability, and competence of the FIRM and its management in matters pertinent thereto. The
performance of the obligations imposed upon the FIRM under the Agreement will not be assignable by
it to any other party unless the CITY, within its sole discretion, consents to said assignment in writing.
Any purported assignment in contravention of this Article shall be void. In the event of an assignment
by FIRM to an affiliate, parent or subsidiary which is an entity which is substantially owned or controlled
by FIRM or which retains substantially similar management and directors and where such assignment is
intended to accomplish an internal corporate purpose of FIRM as opposed to materially and substantially
altering the method of delivery of services to CITY, the CITY will not unreasonably withhold its consent
for such assignment.
ARTICLE 26
PERSONNEL
26.1 The FIRMS's General Manager shall be responsible for the total operation by the FIRM
of the FACILITY.
26.2 The position of the FIRM's General Manager is considered key to the successful operation
of the FACILITY. The FIRM shall seek and receive input from the Contract
Administrator regarding the individual to serve in this position.
26.3 All personnel employed at the FACILITY shall be employees of the FIRM and shall not
be deemed employees of the CITY. The employees and agents of the FIRM shall attain
no rights or benefits under the Civil Service or Pension Ordinances of the CITY, nor the
rights generally afforded classified or unclassified employees of the CITY, nor shall the
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FIRM or its employees be entitled to Florida Workmen's Compensation benefits as
employees of the CITY. The FIRM agrees to make every reasonable effort to recruit
employees who reside in the City of Clearwater. The FIRM agrees to be responsible for
the hiring of all permanent personnel necessary for the operation of the Facility, as well
as other temporary personnel such as gatekeepers, cashiers, ticket takers, ticket sellers,
ushers, rest room attendants, electricians, first-aid attendants, and any other persons
required. to perform the services undertaken.
ARTICLE 27
USER/RENTAL AGREEMENTS
27.1 The FIRM's General Manager shall have the authority to execute user/rental agreements
for the use of the FACILITY in substantially the form approved by the City Attorney as
the standard Harborview Center Occupancy Agreement. Such agreements shall include
indemnification and insurance requirements. The Contract Administrator shall be copied
with any occupancy agreements within five (5) business days of their execution by the
FIRM. Any occupancy agreement not in substantially the form of the standard agreement
shall require the prior approval of the Contract Administrator. The FIRM shall establish
and charge such rates for the FACILITY as is comparable with rates charged for similar
facilities in the Southeastern United States.
27.2 Any user rental agreements or contracts for attractions, events, and servIces in the
FACILITY existing at the time of execution of this Agreement shall be assigned to the
FIRM, who shall assume and perform the obligations of the CITY in respect thereto.
ARTICLE 28
PROCEDURE FOR HANDLING INCOME
28.1 Income derived from FACILITY events will be deposited by the FIRM into the CITY'S
FACILITY operating account within one (1) business day of receipt of such income.
Income derived from other operations, such as parking, rental fees, advertising, exhibitor
services, box office, etc., will be also be deposited into the CITY'S FACILITY operating
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accounts within one (1) business day of receipt. The FIRM shall use funds from these
accounts to cover the operation of the FACILITY. Within sixty (60) days after the end
of each year, the FIRM will provide to the CITY a complete financial statement for each
account, which accounts shall be subject to audit.
28.2 The CITY'S FACILITY operating account will be in the CITY'S name and have two
authorized CITY signators, however the FIRM shall have access to such accounts and
shall designate up to four (4) FIRM employees to be authorized signators on the account.
28.3 Cash control for FACILITY operations shall be accomplished through a combination of
rigid accounting procedures and internal audit tests and an annual audit by an independent
public accounting firm selected by the CITY. Separate CITY bank accounts shall be
utilized for operating funds and box office receipts. The box office account shall be a
trust account that is zero balanced for each event. Payrolls shall be processed through a
separate impressed bank account in the name of the FIRM, reconciled monthly, and tested
via internal audit procedures. Reimbursable expenses for each event shall be coded for
accurate accumulation to ensure all applicable costs shall be paid by the users of the
FACILITY. Advanced deposits covering rentals and estimated costs shall be required to
minimize collection programs. Credit references shall be checked on any new or
questionable clients.
ARTICLE 29
NOTICES
All notices required or permitted to be given pursuant to this Agreement shall be in writing and
delivered personally or sent by registered or certified mail, return receipt requested, or by generally
recognized, prepaid, overnight air courier services. All such notices to either party shall be deemed to
have been provided when delivered, if delivered personally or refused by those individuals or entities
addressed below. The designation of the individuals to be so notified and the addresses of such persons
or entities for the purpose of notice may be changed from time to time by a written notice to the other
party which shall be deemed effective ten (10) days after such notice of change is furnished to the other
party.
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FOR CLEARWATER:
City of Clearwater
c/o City Manager
112 S. Osceola
P. O. Box 4748
Clearwater, FL 34618-4748
cc: City Attorney
City of Clearwater
P. O. Box 4748
Clearwater, FL 34618-4748
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FOR FIRM:
Globe Facility Services
c/o President
5405 Cypress Center Drive
Tampa, FL 33609
cc: General Manager
Harborview Center
320 Cleveland Street
Clearwater, FL 34618
ARTICLE 30
EQUAL OPPORTUNITY EMPWYMENT AND WIMBE REOUIREMENTS
FIRM agrees that it will not discriminate against any employee or applicant for employment for
work under this Agreement because of race, color, religion, sex, age, ancestry, physical handicap or
national origin and will take affirmative steps to ensure that applicants are employed and employees are
treated during employment without regard to race, color, religion, sex, age, ancestry, physical handicap
or national origin.
ARTICLE 31
SEVERABILITY
If any term, covenant, condition, or provision of this Agreement is held by any court of competent
jurisdiction to be invalid or unenforceable then the same as so applied shall no longer be a part of this
Agreement, but such invalidity shall in no way affect any other term, covenant, condition, or provision
provided, however, that the invalidity of such term, covenant, condition, or provision does not, in the
opinion of the CITY and the FIRM, materially prejudice either the CITY or the FIRM as they shall
mutually agree in its rights and obligations under this Agreement. If the validity of any such term,
covenant, condition, or provision should be determined materially to prejudice the FIRM or CITY in its
rights or obligations contained in the valid terms, covenants, conditions, or provisions, or if the
consequence or effect of the invalidity of any term, covenant, condition, or provision contained will be
or may be to reduce any of the areas, spaces, facilities, benefits, or privileges that the FIRM or the CITY
has, the FIRM or CITY may, consequently, at their option, elect either to terminate entirely or to
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continue in full force and effect with only said invalid terms, covenants, conditions, or provisions
eliminated .
ARTICLE 32
ALL PRIOR AGREEMENTS SUPERSEDED: GOVERNING LAW AND VENUE
Other than the CITY's Request for Interest, which is incorporated herein by reference, this
document incorporates and includes all prior negotiations, correspondence, conversations, agreements,
or understanding applicable to the matter contained herein; and the parties agree that there are no
commitments, agreements, or understandings concerning the subject matter of this Agreement that are
not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof
shall be predicated upon any prior representations or agreements whether oral or written. In case of
conflict, this Agreement shall take preference over the Request for Interest.
This Agreement shall be governed by, construed and interpreted in accordance with the laws of
the state of Florida and venue for any litigation hereunder shall lie in Clearwater, Florida.
ARTICLE 33
AMENDMENTS TO AGREEMENT
No alteration or variation of terms shall be valid unless made in writing and signed by both parties,
and no oral understanding or agreement not incorporated therein shall be binding on any of the parties.
ARTICLE 34
CITY AND FACILITY NAMES AND WGOS
USE OF CITY AND FACILITY NAME AND WGO. The FIRM shall have the right to use,
for the term of this Agreement, the CITY's and FACILITY's name and logo on stationery, in advertising
and whenever conducting business for the FACILITY.
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ARTICLE 35
TRUTH-IN-NEGOTIA TION CERTIFICATE
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Signature of this Agreement by FIRM shall act as the execution of a truth-in-negotiation certificate
stating that wage rates and other factual unit costs supporting the compensation of this Agreement are
accurate, complete, and current at the time of contracting. The original contract price and any additions
thereto shall be adjusted to exclude any significant sums by which CITY determines the contract price
was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. All
such contract adjustments shall be made within one (1) year following the end of this Agreement.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the ~ day
of January, 1995.
Witnesses:
GLOBE FACILITY SERVICES, INC.
~~ ;;;< F~~
By1!L44~
Michel F. Sauers, President
C!~ce~
Attest:
(Sea1)-
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Elizabe3~t~ty Manager
Approved as to form and
legal sufficiency:
~~
Pamela K. Akin, City Attorney crJ--
Attest:
~[;
ia E. Goudeau, City Clerk
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