AGREEMENT FOR TRIATHLON EVENTAGREEMENT
Between
THE CITY OF CLEARWATER, FLORIDA
And
COMPETITOR GROUP, INC
THIS AGREEMENT ("Agreement") is made and entered into this 20th day of
January 2012 ("Execution Date"), by and between the City of Clearwater, Florida, a
municipal corporation (the "CiTy"), and Competitor Group, Inc., a Delaware Corporation
("Competitor Group") (the City and Competitor Group each individually referred to
herein as"Party", or collectively as the "Parties");
WIT'NES SETH:
WHEREAS, The City desires to provide events that are of interest and benefit to
the residents of the City and the CiTy also wishes to expand national and international
tourism to the City as well as otherwise enhance economic opportunities for the benefit of
the City and its residents; and
WHEREAS, the Competitor Group is in the business of producing and
conducting sporting events, specifically, running events and triathlons; and
WHEREAS, the City and Competitor Group have agreed that Competitor Group
shall produce and conduct a Triathlon Event (as defined herein) on certain streets and
public land of the City pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained and
other good and valuable consideration, the City and the Competitor Group each agree as
follows:
ARTICLE I: INTRODUCTORY TERMS
1.1 Recitals. The statements contained in the recitals set forth above
("Recitals") are true and conect, and the Recitals are by this reference made a part of this
Agreement.
1.2 Exhibits. The exhibits which are attached to this Agreement are by this
reference made a part of this Agreement.
1.3 Abbreviations and Definitions. The following abbreviations and
definitions will be used for purposes of this Agreement:
A. The abbreviations of the Parties set forth in the Preamble will be
used for purposes of this Agreement.
B. "City Services" means those services customarily provided by the
Fina1 document ooi3��oi
City for its residents and its facilities, including without limitation, services for (i) police,
fire and EMS services; (ii) garbage and refuse disposal; (iii) maintenance personnel; (iv)
crowd control and traffic control, (vi) utilities, and (vii) any additional services as the
City deems appropriate in its sole and absolute discretion.
C. "City Permit and Use Fees" means the fees and charges imposed
by the City in connection with the issuance of permits and the fees and charges imposed
by the City in connection with Competitor Group's use of the Triathlon Event Facilities
(as defined herein).
D. "Concessions" means all concessions associated with a Triathlon
Event (as defined herein) offered or provided within the Triathlon Event Facilities,
including, without limitation to, (1) non-alcoholic beverages, (2) wearing apparel, (3)
programs, (4) souvenirs, (5) seating, and (6) all other merchandise or services offered for
sale in connection with a Triathlon Event. The term Concessions specifically excludes
the activities of otherwise properly licensed Clearwater merchants and business persons
(excluding sidewalk vendors) in conducting their trade or business at their regular
business premises during a Triathlon Event and the Concessions offered by either the
City or its licensees or parties with which it has contracted to provide Concessions at any
City owned property or facility.
E. "Laws" means all existing and future federal, state, and local
constitutions, statutes, ordinances, rules, regulations and resolutions, and all orders and
decrees of lawful authorities having jurisdiction over the matter at issue.
G. "Triathlon Course" means the staging and route(s) mutually agreed
upon in writing by the Parties. Once the staging and route(s) have been mutually agreed
upon in writing by the Parties, the Triathlon Course will be attached to this Agreement as
Exhibit A.
H. "Triathlon Event" means the Competitor Group's TriRock Series,
an athletic racing event consisting of participants swimming, biking and running a race of
a designated distance or races of various designated distances to be held in November,
commencing in the year 2012. The date of the Triathlon Event to be conducted in the
year 2012 sha11 be November 11, 2012. The dates of the Triathlon Event to be conducted
in subsequent years, including if the Term is extended, shall be mutually agreed to by the
Parties.
I. "Triathlon Event Facilities" means those lands, improvements,
buildings, public or other rights of way, or property, owned, leased to or controlled by the
City or under City authority as mutually agreed upon in writing by the Parties, to be used
by Competitor Group for the purpose of staging a Triathlon Event. Once those lands,
improvements, buildings, public or other rights of way, or property, owned, leased to or
controlled by the City or under CiTy authority have been mutually agreed upon in writing
by the Pa.rties, the Triathlon Event Facilities will be atta.ched to this Agreement as Exhibit
C.
Final document ooi3��oi 2
J. "Triathlon Event Logo(s)" means the logo(s), mark(s), symbol(s),
trademark(s), or trade name(s) used by Competitor Group in connection with the
Triathlon Event.
K. "Triathlon Event Period" means from 8:00 a.m. on the Thursday
preceding the Triathlon Event until 5:00 p.m. on the Monday following the Triathlon
Event.
L. "Ticket Sale Rights" means the right to sell tickets and otherwise
charge for admission to or participation in the Triathlon Event, and to sell tickets and
otherwise charge for admission to or use of the Triathlon Event Facilities in connection
with the Triathlon Event, excluding the right to sell tickets to the general public that are
solely for parking.
ARTICLE II: WARRANTIES AND REPRESENTATIONS
2.1 Warranties and Representations bv Comvetitor Group. Competitor Group
warrants and represents to the City as follows:
A. Competitor Group is a for-profit corporation, duly formed,
presently existing and in good standing under the laws of the State of Delaware.
B. All appropriate action exists or has been accomplished by
Competitor Group so as to duly authorize the officers set forth below to execute this
Agreement and all documents contemplated hereby on behalf of Competitor Group so as
to fully and firmly bind Competitor Group to the terms and provisions of this Agreement
and such other documents.
C. Competitor Group has the financial capability to and shall conduct
a Triathlon Event in accordance with this Agreement.
2.2 Warranties and Representations bv City. The City warrants and represents
to Competitor Group as follows:
A. The City is a municipality organized and existing under the laws of
the State of Florida.
B. All appropriate action exists or has been accomplished by the City
so as to duly authorize the officials set forth below to execute this Agreement and all
documents contemplated hereby on behalf of the City so as to fully and firmly bind the
City to the terms and provisions of this Agreement and such other documents.
ARTICLE III: GENERAL TERMS
Final document ooi3��oi 3
3.1 Ri�ht to Conduct Triathlon Event. The City hereby grants to Competitor
Group the right to produce and conduct a Triathlon Event in accordance with the terms
and conditions of this Agreement. Competitor Group hereby acknowledges that the City
has police powers pursuant to applicable Laws to take reasonable and appropriate action
in the event the conduct of a Triathlon Event or any portion thereof is endangering the
health, safety or welfare of the general public. The Parties acknowledge that it would not
be reasonable for the CiTy to take any action in this regard if the Triathlon Event only
produces those effects which are normal and customary for events of this type. The
safety of the Triathlon Event participants shall be controlled by and be the sole
responsibility of Competitor Group.
3.2 Concession Ri ts. The City hereby grants Competitor Group the right to
operate, or to license (in whole or in part) to others, the Concessions associated with the
Triathlon Event during the Triathlon Event Period. The City agrees not to hereafter
extend any Concession rights to any person or entity other than Competitor Group which
would permit the operation or licensing of Concessions, or the vending or offering for
sale of any goods or services competitive with the Concessions; provided, however, the
City shall have the right, should it desire, to operate a Concession at the Triathlon Event
so long as such Concession does not compete with the Concessions contemplated herein
of Competitor Group and its supporting sponsors. Further provided the City shall also be
permitted to operate an informational booth from which Concessions are not sold.
Notwithstanding the foregoing, this grant of rights to Concessions shall not affect the
activities of otherwise properly licensed Clearwater merchants and business persons in
conducting their trade or business at their regular business premises during the Triathlon
Event, or parties with which it has contracted to provide Concessions at any CiTy owned
property or facility.
3.3 Ticket Sale Ri�hts and Cit� ts. The City hereby grants to Competitor
Group exclusive Ticket Sale Rights for the Triathlon Event.
3.4 Media and Broadcast Ri ts. The City hereby grants to Competitor Group
the rights to license any and all media coverage, television broadcasts, or other
broadcasts, locally, nationally, internationally, or otherwise, related to the Triathlon
Event. Competitor Group sha11 notify the CiTy of the identity of inedia entities that will
cover the Triathlon Event. Competitor Group shall endeavor to reflect in such coverage
and broadcast the location of the Triathlon Event and the involvement of the City incident
to this Agreement, and shall incorporate the City of Clearwater name and logo in all
advertising related thereto. The provisions of this a.rticle sha11 survive the termination of
this Agreement. The City reserves the right to media or broadcast coverage as conducted,
produced and reproduced by its City-owned, internal media/public communications
department.
3.5 Triathlon Event Lo�o(s).
A. The City acknowledges that Competitor Group is the owner of the
Triathlon Event Logo(s), and that the CiTy sha11 not interfere with Competitor Group use
Final document oois��oi 4
or licensing of such Triathlon Event Logo(s), provided that Competitor Group complies
with the provisions of this Article 3.5.
B. The City may use the Triathlon Event Logo(s) for promotion of the
City or the Triathlon Event with Competitor Group's prior written consent, which
consent shall not be unreasonably withheld or delayed. The City shall not alter or modify
the Triathlon Event Logo(s) without Competitor Group's prior written consent.
C. Competitor Group may use City owned logo(s) and trademark(s)
for promotion of the Triathlon Event with the City's prior written consent which consent
shall not be unreasonably withheld or delayed, and in accordance with the City of
Clearwater Code of Ordinances. Competitor Group shall not alter or modify the City's
logo(s) or trademazk(s) without the City's prior written consent.
3.6 No Interest in Land. Competitor Group rights pursuant to this Agreement
shall not be construed as a lease, easement, or other interest in land, buildings or other
property of the City.
3.7 Fundin�v the Citv. The City agrees to provide in-kind services in an
amount valued not to exceed thirty thousand dollars ($30,000) annually to support the
Triathlon Event. These City services will be used to offset a portion of costs and expenses
(as estimated in E�iibit B) for City Services and City Permit and Use Fees provided by
the City for the Triathlon Event. This Article 3.7 shall not be construed to limit
Competitor Group from completing and returning to the City a co-sponsored events
application.
3.8 Exclusivitv. The City will not authorize, without Competitor Group's
written permission, any triathlon event of sprint or Olympic distance, other than the
Triathlon Event organized and conducted by Competitor Group, thirty (30) days before
the Triathlon Event and thirty (30) days after the Triathlon Event throughout the Term of
this Agreement. Additionally, the City will not enter into any agreements with any
sponsors of the TriRock Cleazwater Event during the Term of this Agreement.
ARTICLE IV: TERM AND EXTENSION
4.1 Term and Extension. This Agreement shall commence on the Execution
Date and expire at midnight on November 13, 2016, unless earlier terminated as provided
for herein. This Agreement may be extended under the same terms and conditions for two
(2) additional one-year periods from the date of expiration, provided that both Parties
mutually agree in writing to such extension which is subject to City Council approval.
Failure of the Parties to mutually agree to the terms or provisions of referenced and
incorporated E�ibits shall result in a frustration of this Agreement, and such occurrence
shall relieve the Parties, each of its mutual obligations, from that point forward, except
for obligations expressly intended to survive termination of the Agreement. References
in this Agreement to "Term" sha11 include the initial term and a11 extensions thereof.
ARTICLE V: SCHEDULING AND CONDUCTING A TRIATHLON EVENT
Final document ooi3��oi 5
5.1 Obli�ation to Conduct A Triathlon Event. Competitor Group shall
produce and conduct an annual Triathlon Event on a Saturday or Sunday in November,
commencing in the year 2012, said date to be mutually agreed to by the Parties.
Competitor Group shall provide the City with written notice no later than November 30�'
during the Term advising the City whether or not it will stage the Triathlon Event for the
succeeding year, and if so, specifying the exact date of the Triathlon Event, and a
schedule of such events.
5.2 Triathlon Event. The Triathlon Event shall be conducted on the Triathlon
Course on Saturday or Sunday during the Triathlon Event Period and shall be held during
daylight hours only. The Triathlon Event shall be conducted in accordance with the
terms and conditions of this Agreement.
5.3 Set-Up. Operation and Dismantling Periods. Competitor Group shall have
the use of the Triathlon Event Facilities during the Triathlon Event Period for purposes of
set-up of the facilities and apparatus associated with the Triathlon Event; provided
however that the Triathlon Course will only be blocked off during the time necessary to
conduct the Triathlon Event. It is anticipated that all facilities and apparatus associated
with the Triathlon Event will be set-up and dismantled during the Triathlon Event Period.
In the event Competitor Group requires additional time to dismantle the facilities and
appazatus following the Triathlon Event, Competitor Group sha11 be permitted such
additional time beyond the Triathlon Event Period so long as Competitor Group has
commenced the dismantling during the Triathlon Event Period and continues to proceed
in a diligent manner to complete the dismantling. Competitor Group shall provide the
City with a schedule indicating the dates and location of set-up and dismantling of the
facilities and apparatus associated with the Triathlon Event, along with updates and
changes thereto as soon as reasonably possible after the necessity for such updates and
changes become known to Competitor Group.
5.4 Cleanup and Restoration. Competitor Group shall be responsible for
cleaning up the Triathlon Event Course and Triathlon Event Facilities at the end of the
Triathlon Event. Such cleanup shall include, without limitation, removal of litter and
debris from city streets and the Triathlon Event Facilities.
5.5. Conditions of Triathlon Event Facilities. Competitor Group shall be
responsible to promptly return the Triathlon Events Facilities to the condition they were
in immediately prior to the Triathlon Event, reasonable wear and tear excepted.
Competitor Group sha11 be responsible to repair any damage to the Triathlon Event
Facilities during the Triathlon Event by reason of Competitor Group or its patrons.
5.6 Citp Services. The City shall provide City Services for the Triathlon
Event. The estimated costs and expenses for City Services and City Permit and Use Fees
shall be determined after the Parties' mutually agree on the Triathlon Course and the
Triathlon Event Facilities. Once determined, the estimated costs and expenses for City
Services and City Permit and Use Fee shall be attached to this Agreement as Exhibit B.
Competitor Group shall pay the estimated costs and expenses for City Services and CiTy
Final document ooi3��oi 6
Permit and Use Fees, minus the value of the in-kind services to be provided by the City
as described in Article 3.7 of this Agreement (the "Net Estimated Expenses"), to the City
thiriy (30) days prior to the Triathlon Event. If the actual costs and expenses for City
Services and City Permit and Use Fees, minus the value of the in-kind services to be
provided by the CiTy as described in Article 3.7 of this Agreement, exceed the Net
Estimated Expenses deposited by Competitor Group, Competitor Group shall pay the
City for the excess amount within thirty (30) days following the Triathlon Event. In the
event that the costs and expenses for City Services and City Permit and Use Fees, minus
the value of the in-kind services to be provided by the City as described in Article 3.7 of
this Agreement, are less than the Net Estimated Expenses deposited by Competitor
Group, the City will reimburse Competitor Group for the excess amount deposited within
thirty (30) days following the Triathlon Event. However, in no event will the City have
an obligation to disburse a cash equivalent of the in-kind services to be provided by the
City as described in Article 3.7 of this Agreement.
5.7 Compliance with Laws and Related Matters. Competitor Group shall
comply with all applicable Laws, including without limitation, the Florida Public Records
Law (Chapter 119, Florida Statutes) and the Americans With Disabilities Act.
5.8 Liabilitv for Expenses. Under no circumstances shall the City be liable
for any costs or expenses incurred by Competitor Group in any way related to or
connected with the Triathlon Event unless specifically provided for in this Agreement.
Without limiting the generality of the foregoing, all obligations of Competitor Group
pursuant to this Agreement shall be performed by Competitor Group at its sole cost and
expense unless this Agreement specifically provides otherwise. In no event will either
Party be liable to the other Party for any consequential, incidental, indirect or punitive
damages arising out of or in relation to this Agreement.
5.9 Payment of Taxes. Unless otherwise specifically provided for in this
Agreement, Competitor Group shall pay before they become delinquent a11 applicable
taxes associated with the Triathlon Event, including, without limita.tion, ad valorem taxes
that may be assessed due to Competitor Group's use of the Triathlon Event Facilities.
5.10 Authorizations. Competitor Group shall be responsible for seeking and
obtaining any and all permits, licenses, certifications, consents, or other authorizations
required by any public or private entiTy or concern for the staging of the Triathlon Event
and all other matters in connection therewith.
5.11 Unanticipated Events and Needs. The Parties acknowledge that certain
events, needs and changes related to the Triathlon Event cannot be anticipated far in
advance (e.g., weather conditions). Each party shall give the other reasonable notice
under the circumstances of request for performance or modification of performance under
this Agreement that could not reasonably have been anticipated pursuant to notice
required or contemplated in other article of this Agreement. In the event such notice is
given pursuant to this Article 5.11, the Parties sha11 attempt to negotiate such
amendments to this Agreement that may be necessary.
Fina1 document ooi3��oi �
ARTICLE VI: DEFENSE OF CLAIMS, INDEMNIFICATION AND INSURANCE
6.1 Indemnification.
A. Competitor Group shall defend, pay on behalf of, indemnify and
hold the City, its officers, agents, employees, elected and appointed officials, and
volunteers (collectively, "Indemnified Parties") harmless from any and all claims, suits,
demands, liabilities, losses, damages, liens and fines, regardless of whether a lawsuit is
filed (collectively, "Claims"), arising out of or in any way connected with the Triathlon
Event, including but not limited to Claims arising from or in any way connected with set-
up or dismantling activities; and from any and all Claims, which are alleged or claimed to
be arising from or in connection with (i) the sole or contributory negligence (active or
passive) of Competitor Group, its agents, employees, contractors, subcontractors,
concessionaires, licensees, patrons, spectators, volunteers, participants, or customers; (ii)
the negligence of the Indemnified Parties arising out of Triathlon Event; (iii) the
intentional wrongful acts and omissions of Competitor Group, its agents, employees,
contractors, subcontractors, concessionaires, licensees, patrons, spectators, volunteers,
participants or customers; (iv) the City's obligations pertaining to defective conditions in
the Triathlon Event Facilities and any allegations of dangerous condition of public
property or premises liability for the property of the Indemnified Parties; (v) the failure of
Competitor Group, its agents, employees, contractors, subcontractors, concessionaires,
licensees, patrons, spectators, volunteers, participants or customers to comply and
conform with all applicable Laws; (vi) the Triathlon Event or any portion thereof
obstructing physical access to property; and (vii) the Triathlon Event or any portion
thereof causing a nuisance, including Claims in the nature of nuisance.
B. T'he CiTy shall promptly notify Competitor Group in writing of any
claim against any of the Indemnified Parties of which the foregoing indemnification
relates. Competitor Group shall have the right to control the defense of any claim subject
to indemnification. Competitor Group also shall have the right to settle any such claim
provided that Competitor Group pays the entire amount of such settlement and there is no
finding of fault against the Indemnified Parties, or as otherwise agreed to in writing by
the City.
C. The provisions of this article are independent of, and will not be
limited by, any insurance required to be obtained by Competitor Group pursuant to this
Agreement or otherwise obtained by Competitor Group, and shall survive the expiration
or earlier termination of this Agreement with respect to any claims or liability arising in
connection with any event occurring prior to such expiration or termination.
6.2. Insurance Covera�e.
A. Competitor Group shall carry the following minimum types
and amounts of insurance at its own expense:
1) Commercial general liability insurance in an amount of at least
One Million Dollars ($1,000,000) per occurrence, Two Million
Final document ooi3��oi
Dollars ($2,000,000) aggregate in occurrences form. T'his policy
shall include coverage for (i) personal injury or death or properiy
damage or destruction; (ii) fire legal liability in the minimum
amount of One Hundred Thousand Dollars ($100,000); and (iii)
contractual liabiliTy under this Agreement.
2) Automobile liability insurance of $1,000,000 combined single
limit covering all owned, hired and non-owned vehicles.
3) Workers' Compensation insurance as required by Florida law and
Employers' Liability insurance in an amount of at least $100,000
each accident, $100,000 per employee, and $500,000 for all
diseases.
4) If approved to dispense alcohol, Liquor Liability Insurance in the
amount of One Million Dollars ($1,000,000).
B. All of Competitor Group insurance policies, except
Workers' Compensation, sha11 name the Indemnified Parties as additional insureds.
C. All policies shall provide that the City will be provided
notice at least thirty (30) days prior to any cancellation, reduction or material change in
coverage.
D. Competitor Group shall provide the City with Certificates
of Insurance on a standard ACORD form reflecting a11 required coverage. At the City's
request, Competitor Group shall provide copies of current policies with all applicable
endorsements.
E. All insurance required shall be provided by responsible
insurers licensed in the State of Florida and rated at least A- in the then current edition of
Best's Insurance Guide or similar rating service approved by the City.
F. Competitor Group will obtain insurance policies that waive
all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This
provision is intended to waive fully, and for the benefit of the Indemnified Parties, any
rights or claims which might give rise to a right of subrogation in favor of any insurance
carrier or Competitor Group.
ARTICLE VII - DEFAULT AND REMEDIES
7.1 Default. The following shall be deemed events of default ("Default")
under this Agreement:
A. By Citv. Failure by the City to perform or comply with its
obligations or responsibilities hereunder, which is not cured within a reasonable time, but
Final document oois��oi g
in no event to exceed thirty (30) days following receipt by the City of written notice from
Competitor Group specifying with particularity the Default so claimed. The thirty (30)
day curative period provided herein may be expanded by so much additional time as is
reasonably necessary to cure the Default provided that the City commences to cure such
Default within such thirly (30) day period and thereafter diligently and continuously
proceeds to cure the Default.
B. Bv Comnetitor Group. Any one or more of the following shall be
deemed a Default by Competitor Group:
(1) Failure of Competitor Group to perform or comply with its
obligations or responsibilities hereunder, which is not cured within a reasonable time, but
in no event to exceed thirty (30) days following receipt by Competitor Group of written
notice from the City specifying with particularity the Default so claimed. The thirty (30)
day curative period provided herein may be expanded by so much additional time as is
reasonably necessary to cure the Default provided that Competitor Group commences to
cure such Default within such thirty (30) day period and thereafter diligently and
continuously proceeds to cure the Default.
(2) A principal of Competitor Group shall be adjudicated guilty
of committing a felony and all rights of appeals have expired.
(3) Competitor Group makes a voluntary assignment for the
benefit of its creditors.
(4) Competitor Group files a voluntary petition in bankruptcy
or becomes the subject of an involuntary petition in bankruptcy which is not discharged
within sixty (60) days after the filing of such involuntary petition in bankruptcy.
7.2 Remedies.
A. In the event of a material Default by a party in the performance of
its obligations and duties as provided in this Agreement which is not cured within any
curative period provided herein, the other party sha11 have the right to immediately file an
action with a court of competent jurisdiction requesting an order granting any and all
appropriate remedies, legal and equitable, including, without limitation, injunctive relief,
specific performance, termination of this Agreement, damages and/or an order requiring
or precluding the conduct of the Triathlon Event or any portion thereof. The Parties
hereto shall comply with the terms and conditions of any such order until the order is
subsequently modified or revoked by such court or overruled pursuant to an appeal
thereof filed by any party hereto; provided, however, that until a court order is obtained
establishing the rights and obligations of the Parties pursuant to this Agreement and the
Default of a party in the performance of its obligations and duties hereunder, no party
sha11 be excused from performance of its respective obligations pursuant to this
Agreement except as otherwise specifically provided in this Agreement to the contrary.
Fina1 document ooi3��oi 10
B. T'he provisions of this Section 7.2 are subject to the rights of
termination set forth in Section 7.3 below.
C. In no event shall either party be liable for any loss of use, loss of
time, inconvenience, lost profits or other special, incidental or consequential damages in
any way related to or arising from this Agreement or the Triathlon Event.
7.3 Termination. Notwithstanding anything contained in Section 7.2 above to
the contrary, the applicable parties shall have the right to terminate this Agreement by
written notice to the other parties as follows:
A. By Citv. The City may terminate this Agreement by written notice
to Competitor Group by reason of any Default specified in Section 7.1 B.
B. Bv Competitor Group. Competitor Group may terminate this
Agreement by written notice to the City by reason of any Default specified in Section 7.1
A or pursuant to Section 8.12.
C. Bv Court. A court of competent jurisdiction may terminate this
Agreement pursuant to Section 7.2 above following any Default specified in Section 7.1
A. or Section 7.1 B. (1) above which is not cured within the applicable curative period
provided therein.
ARTICLE VIII - MISCELLANEOUS
8.1 Notices.
A. Any and all notices to be given to Competitor Group under this
Agreement or required by law to be given to Competitor Group may be given or served
by certified or registered letter deposited in the U.S. Mail with postage prepaid, overnight
courier, or facsimile, addressed to:
B.
required by law to
letter deposited in
addressed to:
Competitor Group, Inc.
9477 Waples St., Suite 150
San Diego, CA 92121
858-450-6510
Attn: Josh Furlow, SVP Operations
Any and all notices to be given to the City under this Agreement or
be given to the City may be given or served by certified or registered
the U.S. Mail with postage prepaid, overnight courier, or facsimile,
City of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 33756
(727) 562-4040
Final document oois��oi 11
Attn: Kevin Dunbar
With a copy to:
CiTy of Clearwater
112 S. Osceola Avenue
Clearwater, Florida 33756
Attn: City Attorney
C. All notices shall be deemed given or served upon receipt. Any
party may change its address for the giving of notice pursuant to notice given in
accordance with the provisions of this Article 8.1, which notice shall be effective upon
receipt by the other party.
8.2 Assi�nment. Competitor Group shall not assign this Agreement, or any
part thereof, without first obtaining the written consent of City, which consent may be
withheld by City at its sole discretion. Any assignment of this Agreement contrary to this
Article 8.2, whether voluntary or involuntary, shall be void and shall confer no rights
upon an assignee.
8.3 No Waiver. No provision of this Agreement will be deemed waived by
either party unless expressly waived in writing signed by the waiving party. No waiver
shall be implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Agreement shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and the City's
consent respecting any action by Competitor Group shall not constitute a waiver of the
requirement for obtaining the City's consent respecting any subsequent action.
8.4 Severabilitv. In the event that any portion of this Agreement shall be held
to be invalid for any reason, such invalidity shall not affect the remaining portions of this
Agreement and the same shall remain in full force and effect.
8.5 Applicable Law and Venue. This Agreement shall be deemed to have
been executed, delivered and performed in the State of Florida and it shall be governed
by and interpreted in accordance with the laws of the State of Florida. Venue for any
action brought in state courts shall be in Pinellas County. Venue for any action brought
in federal court shall be in the Middle District of Florida, Tampa Division, unless a
division shall be created in Pinellas County, in which case the action shall be brought in
that division.
8.6 Parties in Interest. All agreements made and entered into in connection
with the transactions contemplated herein shall be binding upon and shall inure to the
benefit of the Parties hereto, their successors and assigns.
8.7 Captions. Captions aze for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Agreement.
8.9 Relationship of Parties. This Agreement does not in any way constitute
Final document ooi3��oi 12
Comperitor Group as the agent, employee or legal representative of the City for any
purpose whatsoever. Competitor Group is in all respects an independent contractor and
nothing contained in this Agreement shall create or be construed as creating a partnership
or joint venture between the City and Competitor Group. The City shall in no way be
responsible for any debts incurred by Competitor Group.
8.9 Nondiscrimination. Competitor Group shall not illegally discriminate
against anyone in the use of the Triathlon Event Facilities or the conduct of the Triathlon
Event.
8.10 Force Majeure. Each party sha11 be excused from performance of its
obligations hereunder when such performance has been delayed, hindered or prevented
by any cause or causes beyond such party's reasonable control, which shall include,
without limitation, labor disputes, riots, civil commotion or insurrection, waz, war-like
operations, or terrorist acts, invasion, rebellion, military or usurped power, sabotage,
governmental restrictions, regulations or controls, inability to obtain any materials or
services, fire or other casualties, natural disasters or acts of God. In the event any
Triathlon Event Facility or portion thereof is destroyed or substantially damaged at any
time during the Term by fire, casualty or other cause, the City shall not be required to
repair or rebuild such Triathlon Event FaciliTy or portion thereof. If the Triathlon Course
set forth in Eachibit A and/or Triathlon Event Facilities set forth in E�ibit C are
unavailable due to circumstances beyond the City's control, the parties shall mutually
agree in writing on a revised Exhibit A and/or Exhibit C.
8.11 Consent and Action bv Citv.
A. For purposes of this Agreement, any required written permission,
consent, acceptance, approval, or agreement ("Approval") by the City means the
Approval of the CiTy Manager or his authorized designee, unless otherwise set forth in
this Agreement or unless otherwise required to be exercised by City Council pursuant to
the City Charter or applicable Laws.
B. For purposes of this Agreement, any right of the CiTy to take any
action permitted, allowed, or required by this Agreement may be exercised by the City
Manager or his authorized designee, unless otherwise set forth in this Agreement or
unless otherwise required to be exercised by City Council pursuant to the City Charter or
applicable Laws.
8.12 Non-Appropriation. The obligations of the City as to any funding
required pursuant to this Agreement shall be limited to an obligation in any given year to
budget, appropriate and pay from legally available funds, after monies for essential city
services have been budgeted and appropriated, sufficient monies for the funding that is
required during that year. Notwithstanding the foregoing, the City shall not be prohibited
from pledging any legally available non-ad valorem revenues for any obligations
heretofore or hereafter incurred, which pledge shall be prior and superior to any
obligation of the City pursuant to this Agreement. The CiTy agrees to promptly notify
Competitor Group in writing in the event of non-appropriation of funds required to be
Final document ooi3��oi 13
paid or contributed by the City pursuant to this Agreement, and, upon such notice,
Competitor Group may terminate this Agreement in its sole discretion; provided,
however, that the City shall not be liable to Competitor Group or responsible for any
costs or expenses incurred by Competitor Group as a result of or related to the City's
non-appropriation of funds or Competitor Group's termination of this Agreement
pursuant to this Section 8.12.
8.13 No Third Partv Beneficiaries. Persons or entities not a party to this
Agreement may not claim any benefit hereunder or as third party beneficiaries hereto.
8.14 Entire Agreement. This Agreement and the documents to be delivered
hereunder constitute the entire agreement between the Parties pertaining to the subject
matters covered hereby and there are no oral representations, arrangements or
understandings between or among the Parties relating to the subject matters of this
Agreement. No change to this Agreement will be valid unless made by a written
amendment duly executed by the Parties.
8.15 Survival. All obligations (including indemnity and payment obligations)
or rights of any party arising during or attributable to the period prior to expiration or
earlier ternunation of this Agreement shall survive such expiration or earlier termination.
IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above written.
Countersigned: CITY OF CLEARWATER, FLORIDA
.�ef-�� � By: •c�Q,�� i� . "V�—Lr
Frank V. Hibbard William B. Horne, II
Mayor City Manager
Approved as to form:
Laura Lipowski Mahony
Assistant City Attorney
COMPETITOR GROUP, INC
sign:
Final doc t oois��oi
Attest:
��ofTy�,��
�� ��� ,
--- -- �--�—t--�_�.�.—�.�.�
. i ' �� �` �.
� - - �-�
�, :: .
1 j
tt ' �:
(ti�, a� �
`��������� �
. � �,� �
14
. � � I / /
. �� .��u� '
Attachments:
Exhibit A
E�ibit B
E�iibit C
Print: �ia.(�, �� I�P,(i✓
r �
Sign: � l/
Print: p : `gv.�(n�5.5 �/ .
Final document ooi3��oi 15