CAPITOL THEATRE OPERATING AGREEMENTCAPITOL THEATRE OPERATING AGREEMENT
BETWEEN
CITY OF CLEARWATER, FLORIDA
. �
RUTH ECKERD HALL, INC.
DATED :
S�P+c�b��?A, 2012
Table of Contents
1. Recitals .................................................................................................................................... 2
2. Definitions ............................................................................................................................... 2
3. Initial Term .............................................................................................................................. 8
4. Option to Extend Term ............................................................................................................ 8
5. Representations ........................................................................................................................9
(a) City ................................................................................................................................... 9
(b) REH .................................................................................................................................. 9
6. Construction, Renovation and Repair of the Capitol Theatre Facility .................................. 10
(a) REH Responsibilities ..................................................................................................... 10
(b) Plan Approval by the City .............................................................................................. 11
(c) Permits ............................................................................................................................11
(d) Payment and Performance Bond .................................................................................... 12
(e) Cost of Construction ....................................................................................................... 12
�� City Project ..................................................................................................................... 13
7. Operation of Capitol Theatre Facility by REH ...................................................................... 13
(a) REH Operation ............................................................................................................... 13
(b) Budget ............................................................................................................................ 14
(c) Administrative and Artistic Control ............................................................................... 15
(d) Prohibited Activities ....................................................................................................... 15
(e) Use of Capitol Theatre Facility at the Direction of the City .......................................... 15
( fl City Review of Operations; Performance Standards ...................................................... 16
�g) REH's Duties and Obligations ........................................................................................ l6
(h) City Manager Submittals ................................................................................................ 17
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(i) Reporting Requirements ................................................................................................. 20
(j) Duties and Responsibilities of the City .......................................................................... 21
(k) Laws Related to Public Buildings and Public Works .................................................... 21
(1) Equal Employment Opportunity .................................................................................... 21
(m) Recordkeeping ................................................................................................................22
(n) Financial Audits ............................................................................................................. 22
8. Payment of Utilities ............................................................................................................... 23
9. Maintenance of Capitol Theatre Facility by REH ................................................................. 23
10. Warranties .......................................................................................................................... 24
11. Operating Reserve Fund .................................................................................................... 24
(a) Contributions to the Reserve Fund ................................................................................. 24
(b) Use of Reserve Fund Monies ......................................................................................... 24
(c) Disbursement from Reserve Fund .................................................................................. 25
(d) Fifth Year Review .......................................................................................................... 25
(e) Disposition of Reserve Fund upon Termination ............................................................ 26
12. Installations, Alterations and Removal .............................................................................. 27
13. Signs ...................................................................................................................................27
14. Parking ............................................................................................................................... 28
15. Insurance ............................................................................................................................ 28
(a) Insurance Coverage Requirements ................................................................................. 28
(b) Deductibles .....................................................................................................................29
(c) Additional Insureds ........................................................................................................ 29
(d) Evidence of Insurance .................................................................................................... 29
(e) Notice ............................................................................................................................. 29
�� Waiver of Subrogation ................................................................................................... 30
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�g) Claims .............................................................................................................................30
(h) Premiums ................................................................:.......................................................30
(i) Primary Policies ............................................................................................................. 30
(j} Property and Equipment of REH ................................................................................... 30
(k) Real Property Insurance ................................................................................................. 31
(1) Builder's Risk Insurance . ............................................................................................... 31
16. Indemnity ........................................................................................................................... 31
(a) Defense. Hold Harmless and Indemnity ........................................................................ 31
(b) Hazardous Material Claims ....................................................................:....................... 32
(c) Notice, Defense and Settlement of Claims ..................................................................... 32
(d) Provisions Independent of Insurance and Survival ........................................................ 32
(e) Costs, Expenses and Liabilities ...................................................................................... 32
�� Limitations ..................................................................................................................... 32
�g) Limitation of Liability .................................................................................................... 32
(h) Waiver of City's Liability .............................................................................................. 33
17. Damage or Destruction ...................................................................................................... 33
18. Hazardous Material ............................................................................................................ 33
(a) Use and Handling of Hazardous Material ...................................................................... 33
(b) Notice ............................................................................................................................. 34
(c) Cleanup and Removal .................................................................................................... 34
19. Dispute Resolution ............................................................................................................. 35
20. Payment of Taxes ............................................................................................................... 35
21. No Right to Pledge, Encumber or Cause the City to Assume Liability ............................. 36
22. No Liens ............................................................................................................................. 36
23. Compliance with Laws ...................................................................................................... 36
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(a) REH's Compliance ......................................................................................................... 36
(b) City's Compliance .......................................................................................................... 36
24. Permits and Licenses .......................................................................................................... 36
25. Notices ............................................................................................................................... 36
(a) Written Notices, Delivery Date and Recipient Information ........................................... 37
(b) Changes .......................................................................................................................... 37
26. Assigrunent ........................................................................................................................ 37
27. Default by REH .................................................................................................................. 37
28. Default by City ................................................................................................................... 38
29. Adverse Events Termination .............................................................................................. 38
30. Termination ........................................................................................................................39
(a) With Cause/Cure ............................................................................................................ 39
(b) With Cause/No Cure ...................................................................................................... 40
(c) City Council Confirmation ............................................................................................. 40
31. Obligations Upon Termination Or Expiration ................................................................... 40
(a) Vacate .............................................................................................................................40
(b) Inventory ........................................................................................................................ 40
(c) Surrender of Records, Accounts and Property ............................................................... 40
32. Compliance ........................................................................................................................ 41
33. Ownership of Property ....................................................................................................... 41
34. Inspection ........................................................................................................................... 41
35. Negation of Agent/Employee Status .................................................................................. 41
36. No Landlord-Tenant Relationship ..................................................................................... 42
37. Charitable Support ............................................................................................................. 42
38. City Council ....................................................................................................................... 42
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39. Jurisdiction and Venue ....................................................................................................... 43
(a) Jurisdiction ..................................................................................................................... 43
(b) Registered Agent/Secretary of State .............................................................................. 43
(c) Venue ............................................................................................................................. 43
40. Relationship of Parties ....................................................................................................... 43
41. Miscellaneous .................................................................................................................... 44
(a) Successors and Assigns .................................................................................................. 44
(b) REH's Obligation for Expenses ..................................................................................... 44
(c) Entire Agreement ........................................................................................................... 44
(d) Amendments ...................................................................................................................44
(e) Governing Law ............................................................................................................... 45
Severabilit 45
�� Y .....................................................................................................................
�g) Binding Effect ................................................................................................................ 45
(h) Remedies ........................................................................................................................ 45
(i) No Third Party Beneficiary ............................................................................................ 45
�) Captions ..........................................................................................................................45
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CAPITOL THEATRE OPERATING AGREEMENT
THIS CAPITOL THEATRE OPERATING AGREEMENT (the "Agreement"), made and
entered into this � day of e�bc�- 2012, by and between CITY OF CLEARWATER, a
municipal corporation, whose mailing address is: Attn: Rod Irwin, Assistant City Manager,
Post Office Box 4748, Clearwater, FL 3375&4748, hereinafter referred to as "City", and Ruth
Eckerd Hall, Inc., a Florida not-for-profit corporation, whose mailing address is: Attn: Zev
Buffman, 1111 McMullen-Booth Road, Clearwater, FL 33759 hereinafter referred to as "REH";
WITNESSETH:
WHEREAS, the City is the owner of the properties located at 401 and 403 Cleveland St.,
and anticipates closing on the property at 409 Cleveland St. following the execution of this
Agreement, more particularly described on Exhibit "A-1" attached hereto and all improvements
thereon being collectively referred to as the "Capitol Theatre Facility"; and
WHEREAS, the City intends to arrange for improvements to the Capitol Theatre Facility
to convert it to a performing arts theatre and further provide for the operation thereof as a City
owned perforining arts theatre to provide quality performing arts experiences and educational
opportunities; and
WHEREAS, the City finds that the renovation and development of the Capitol Theatre
Facility will enhance the performing arts experience for the community and advance the City's
downtown district's economic development efforts, enhance tourism and arts education and
enable district wide festivals and celebrations and provide a clear sense of regional and national
destination for the Cleveland Street District (the "District"); and
WHEREAS, the City has prior experience with REH's operation of other City owned
performance facilities and desires to arrange for REH to operate the Capitol Theatre Facility on
behalf of the City as a performing arts theater and oversee the construction, renovation and
repair of the Capitol Theatre Facility on behalf of the City; and
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WHEREAS, REH has indicated a willingness and a desire to construct, renovate, repair
and operate the Capitol Theatre Facility, and to solicit funds to provide for the long term
operation and maintenance of the said premises and improvements thereon as a performing
arts theater; and
WHEREAS, City and REH mutually desire to establish an operating reserve fund for the
term of this Agreement and to provide for the disbursement of funds from the operating reserve
fund in order to ensure the Capitol Theatre Facility is well maintained; and
WHEREAS, City and REH are intending to set forth in this Agreement policies relevant
to how the Capitol Theatre Facility may be used by the City and City funded organizations for
activities which are consistent with the operation of a performing arts theater and the
performance standards to which REH will be held during their operation of the Capitol T'heatre
Facility; and
WHEREAS, the City has determined that it is in the public interest and serves a public
purpose to enter into this Agreement for the construction, renovation, repair and operation of
the Capitol Theatre Facility under and pursuant to the terms and provisions hereinafter set
forth.
In and for the mutual covenants, agreements and undertakings of the parties hereto and other
valuable considerations, the receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated
herein by reference.
2. Definitions. The following terms shall have the meaning ascribed to them
below:
"Audit" means either of the audits provided for in Section 7.
"Budget" means an Operating Budget for the Capitol Theatre Facility, including Costs
of Operation and Maintenance, Gross Revenue and Net Revenue, and a Capital Improvement
Budget.
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"Business Days" means those days in each year in which City offices are open for the
conduct of City business.
"Capital Improvement" means a repair, renewal or replacement of the Capitol Theatre
Facility buildings, structures, equipment or fixtures which has an expected useful life
greater than one (1) year and a cost greater than $50,000.
"Capital Improvement Budget" means a detailed ten-year projection of planned capital
improvements to the facility, including projected funding sources.
"Capitol Theatre Facility" means the real property referred to in Exhibit "A" and all
improvements located thereon are referred to herein as the "Capitol Theatre Facility".
"Capitol Theatre Inventory" means the inventory of all personal property, furniture,
fixtures and equipment located at the Capitol Theatre Facility which is necessary for the
operation of the Capitol Theatre Facility, as prepared and updated in accordance with Section
33 hereof. �
"Capitol Theatre Project" means the initial construction, demolition, improvements,
renovations and repairs to the Capitol Theatre Facility to be undertaken by REH as set forth in
Section 6 hereof and described on Exhibit "A-1" and "A-2" hereto.
"City Project" means the alleyway and County Parking Lot improvements described on
Exhibit "A-3" hereto under the heading "City Project".
"Costs of Operation and Maintenance" means all costs and expenses of
management, operation, maintenance and marketing of the Capitol Theatre Facility incurred
pursuant to and in accordance with this Agreement at the, or related to the, Capitol Theatre
Facility and calculated in accordance with Generally Accepted Accounting Principles,
including those costs and expenses which are reasonably anticipated to be incurred on a
periodic basis, and shall include, without limiting the generality of the foregoing: (i) general
and administrative expenses relating to management, operation, maintenance and marketing;
( i i) the cost of inspection, maintenance and repair on a periodic basis; ( i i i) the cost of
equipment maintenance and repair; ( i v) the cost of electricity, water, sewer, telephone, gas,
and other utility charges; (v) the cost of fuel, lighting, window washing, janitorial services,
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_
pest control, waste disposal, trash and rubbish removal, security, parking and ticketing
systems and services; ( v i) the cost of legal and accounting services (except as otherwise
provided in this Agreement); (vii) the cost of service agreements on equipment and the cost of
service and office machinery and equipment; (viii) the cost of licensing and permit fees; (ix)
the cost of operation and maintenance of audio, video, camera, sound system, cable
transmission, food service, advertising panels, exterior marquees, concert equipment, seats
and chairs, mobile communication systems, first aid station and equipment, box office
equipment, staff uniforms, crowd control equipment, parking lot equipment, custodial
equipment, locker room equipment, dressing room equipment, landscaping equipment, energy
management systems and equipment, and closed circuit T.V.; (x) event expenses including
staffing costs (for ushers, ticket takers, security and other event staf� and set up and cleanup
up costs; (xi) salaries, benefits and other expenses associated with REH's employees who
work on-site at the Capitol Theatre Facility and whose duties are connected to the
management, operation, maintenance and marketing of the Capitol Theatre Facility; ( x i i)
amounts paid to contractors or subcontractors for work or services performed in connection
with the management, operation, maintenance and marketing of the Capitol Theatre Facility;
(xiii) the cost of supplies and other consumable items and materials used in connection with the
management, operation, maintenance and marketing of the Capitol Theatre Facility; (xiv)
payroll taxes, unemployment insurance costs, expenses and costs imposed upon REH
pursuant to applicable Laws or pursuant to a collective bargaining agreement covering REH's
employees who work on-site at the Capitol Theatre Facility, including but not limited to
vacation allowances, disability insurance premiums, pension costs, hospitalization benefits,
retirement, FICA contributions, other employment taxes, and Workers' Compensation
expenses; ( x v) expenses incurred in booking events and activities; ( xvi ) advertising,
promotion and marketing expenses (including reasonable and necessary travel, lodging, food
and entertainment expenses incurred by employees who work on- site at the Capitol Theatre
Facility); (xvii) the cost for employees who work on-site at the Capitol Theatre Facility to
attend business meetings and conventions; ( x v i i i) reasonable and necessary costs of travel
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and lodging for REH's corporate and regional personnel involved in REH's management of
the Capitol Theatre Facility; (xix) insurance premiums and deductibles for the insurance
required to be maintained by REH pursuant to this Agreement (to the extent permitted in
this Agreement); (xx) the cost of the audits provided for in Section 7; (xxi) bank service
charges and fees; (xxii) any ad valorem taxes that may be assessed on the Capitol Theatre
Facility or any portion thereof; and (xxiii) all other costs of operation and maintenance
customary for a performing arts theater.
"Final Budget" means the final Budget for the operation of the Capitol Theatre Facility
for each year and any changes thereto developed by REH and approved by the City Manager
pursuant to Section 7(b).
"Fiscal Year" means that period of time from October 1st of one year to September 30th
of the next following year.
"Furniture, Fixtures and Equipment" or "F. F. £� E." means furniture, fixiures and
equipment utilized in the operation of the Capitol Theatre Facility.
"Generally Accepted Accounting Principles" means those accounting principles
promulgated by the Governmental Accounting Standards Board, Financial Accounting
Standards Board, and other standard setting boards as mutually agreed upon by the Parties
from time to time, and any applicable standards required by applicable Laws.
Gross Revenues" means those revenues derived from the operation of the Capitol
Theatre Facility and donations to REH which are restricted for the specific use of Capitol
Theatre Facility operations or which are designated by REH for use by the Capitol Theatre
Facility.
"Hazardous Materials" means (i) any "hazardous substance" defined as such in (or for
the purposes o fl the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A. � 9601(14), as amended from time to time, or any so-called "superfund" or
"superlien' law, including the judicial interpretation thereof, (ii) any "pollutant or
contaminant" as defined in 42 U.S.C.A. � 9601(33), as amended from time to time, (iii) any
material now defined as "hazardous waste" pursuant to 40 C.F.R. Part 260, (iv) any petroleum,
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including crude oil or any fraction thereof, (v) natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel, (vi) any "hazardous chemical" as defined pursuant to 29
C.F.R. Part 1910, as amended from time to time, and (vii) any other substance, regardless of
physical form that is subject to any other law or other past, present or future requirement of any
governmental authority regulating, relating to, or imposing obligations, liability or standards of
conduct concerning the protection of human health, plant life, animal life, natural resources,
property or the reasonable enjoyment of life or property free from the presence in the
environment of any solid, liquid, gas, odor or any form of energy, from whatever source;
provided, however, that the term "Hazardous Materials' shall not apply to substances in
quantities that are generally recognized to be appropriate to normal residential uses and to the
maintenance of property of a size and use comparable to the Property and to substances in
limits acceptable under applicable law.
"Laws" means all existing and future federal, state, and local statutes, ordinances,
rules, regulations and resolutions, the federal and state constitutions, all orders and decrees of
lawful authorities having jurisdiction over the matter at issue, and all City policies and
procedures, including but not limited to statutes governing construction of public buildings
and repairs upon public buildings and public works (including but not limited to the
bonding requirements of Section 255.05, Florida Statutes, regardless of whether the contract for
construction ar repair is between the REH and the contractor or the contractor and the City),
Chapter 119, Florida Statutes, Title VII of the Civil Rights Act of 1964, Americans with
Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, and
permit and license requirements.
"Maintenance Standards" means the maintenance standards and any changes thereto
developed by REH and approved by the City Manager pursuant to Section 7(h).
"Management Plan" means the management plan and any changes thereto developed
by REH and approved by the City Manager pursuant to Section 7(h).
"Marketing Plan" means the marketing plan and any changes thereto developed by
REH and approved by the City Manager pursuant to Section 7(h).
�.
"Net Revenue" means Gross Revenue less Costs of Operation and Maintenance.
"Occupancy Date" means the day on which the certificate of occupancy is issued by the
City to REH following the completion of the Capitol Theatre Project and the City Project.
"Operating Budget" means a detailed projection, prepared on an annual fiscal year basis,
of all estimated quarterly income and expenses for Theatre operations, including all revenue
sources defined in Gross Revenues and all operating expenditures deiined in Costs of Operation
and Maintenance, as well as any funding of capital improvement projects.
"Parking facility" means the Surface Parking lot in front of City Hall, 112 S. Osceola
Ave., Clearwater, FL, minus the spaces that are reserved 24 hours a day, 7 days a week.
"Permits" means all governmental permits, licenses, consents, approvals, authorizations
and agreements that may be required in connection with the performance of the Capitol Theatre
Project.
"Plans" means all of the architectural, engineering and other site plans, tests, drawings,
reports, surveys and other documents necessary in connection with the design, application for
Permits, and performance of the Capitol Theatre Project, including (without limitation) the
following: (i) surveys and legal descriptions; (ii) site plans, (iii) architectural and engineering
drawings, renderings, plans and reports, (iv) construction plans, and (v) engineering and
construction plans and cost estimates and budgets.
"Staff Plan" means the staff plan and any changes thereto developed by REH and
approved by the City Manager pursuant to Section 7(h).
"Standard Operating Procedures Manuals" means the manuals and any changes
thereto developed by REH and approved by the City Manager pursuant to Section 7(h).
"Submittals" means any and all plans, reports, budgets and other documents required
to be submitted by REH to the City Manager.
"Termination" means an early termination of this Agreement prior to the end of the
then current Term in accordance with the provisions of Section 29 or 30 hereof, or following the
exercise of remedies following an event of default described in Section 27 or Section 28.
"Year" or "year" means calendar year, unless otherwise specified in this Agreement.
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3. IniHal Term. The term of this Agreement is thirty (30) years (the "Initial Term°)
and shall commence on September 21, 2012 and terminate at midnight on September 21,
2042, unless this Agreement is earlier terminated as provided herein. All terms and
conditions set forth in this Agreement shall apply during the Term unless otherwise provided
herein.
Notwithstanding the Term set forth above, in the event the following required actions
(herein the "Required Actions") have not occurred by their specified dates, and by November
16, 2012 the City and REH have not mutually renegotiated the time such Required Actions must
occur and any other provision in this Agreement which must be modified as a result of the non-
occurrence of the Required Actions, then either party shall have the right to terminate this
Agreement without liability to the other party. The Required Actions are: (1) closing by REH on
the acquisition of the property located at 409 Cleveland Street, Clearwater, Florida within seven
(7) days following the execution and delivery of this Agreement; (2) closing by the City on the
acquisition from REH of the property located at 409 Cleveland Street, Clearwater, Florida
within seven (7) days following the execution and delivery of this Agreement; (3) City Council
adopting Ordinance No. 8363-12 vacating the north-south alleyway and partially vacating the
east-west alleyway behind the Capitol Theatre Facility; (4) Pinellas County transfers the vacated
east-west alleyway property lying behind the Capitol Theatre Facility to the City by Nov.1,2012;
(5) Pinellas County grants to the City an easement on Pinellas County property to enable the
City to realign the east-west alleyway by November 1, 2012; and (6) the City Council adopts
Ordinance No. 8358-12 and Ordinance No. 8359-12, removing the designation of the Capitol
Theatre Property(401 and 403-405 Cleveland St.) as historic structures by October 19, 2012.
4. Option to Extend Term. If REH is not in default hereunder, not less than two
hundred forty (240) days prior to the expiration of the Initial Term, REH shall notify the City
whether REH wishes to extend the Term and under what terms and conditions REH would
agree to extend the Term. If the City and REH mutually agree to extend the Term, the
extension and any corresponding terms and conditions shall be set forth in an amendment to
:
this Agreement duly executed by the Parties. In no event shall the City be required to
extend the Term.
5. Representations.
(a) Ci�t . As a material part of the consideration flowing to REH under this
Agreement, the City represents to REH that each of the following statements is presently
true and correct:
(1) Existin�. The City is a municipal corporation validly existing
under the laws of the State of Florida and has all requisite power and authority to
carry on its business as now conducted and to perform its obligations under this
Agreement.
(2) Due Authorization. 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 on behalf of the City and fully and firmly bind the City to the
terms and conditions of this Agreement.
(3) Enforceabilitv. This Agreement shall constitute a legal, valid
and binding obligation of the City enfor.ceable against the City in accordance with
the terms and conditions hereof, except as such enforceability may be affected or
limited by applicable Laws.
(4) No Litigation. There are no pending, or to the knowledge of the
City, threatened actions or proceedings before any court or administrative agency to
which the City is a party, questioning the validity of this Agreement, ar which appear
likely, in any case or in the aggregate, to materially adversely affect the City's
performance of its obligations hereunder.
(5) Financial Ca�abilitv. With respect to Section 6(e) hereof, the City
is fully capable, financially and otherwise, of fulfilling its obligations hereunder.
(b) REH. As a material part of the consideration flowing to the City under
this Agreement, REH represents to the City that each of the following statements is presently
true and correct.
��
(1) Existin�. REH is a Florida not-for-profit corporation authorized to
operate in the State of Florida and has all requisite power and authority to enter into and
perform its obligations under this Agreement.
(2) Due Authorization. All appropriate action exists or has been
accomplished by REH so as to duly authorize the officials set forth below to execute
this Agreement on behalf of REH and fully and fumly bind REH to the terms and
conditions of this Agreement.
(3) Enforceabilitv. This Agreement constitutes a legal, valid and
binding obligation of REH, enforceable in accordance with the terms hereof, except as
such enforceability may be affected or limited by applicable Laws.
(4) No Liti a� tion. 'There are no pending, or to the knowledge of
REH, threatened actions or proceedings before any court or administrative agency to
which REH is a party, questioning the validity of this Agreement, or which appear
likely, in any case or in the aggregate, to materially adversely affect REH's performance
of its obligations hereunder.
(5) Financial Ca�abilitv. REH is fully capable, financially and
otherwise, to perform its obligations hereunder.
6. Construction, Renovation and Re�air of the Capitol Theatre Facilitv.
(a) REH Responsibilities. REH shall be responsible for designing, planning,
permitting, demolition, repairing and constructing certain improvements constituting the
Capitol Theatre Project upon and to the Capitol Theatre Facility as outlined on Exhibits "A-1"
and "A-2" attached hereto and by reference made a part hereof, and which Capitol Theatre
Project will be more particularly described in the Plans and in accordance with the Permits.
REH shall be responsible for the payment of all costs incurred in connection with
(i) the design (including, without limitation, the costs of preparing the Plans and the costs of
obtaining all necessary Permits; (u) the performance and completion of the Capitol Theatre
Project in excess of the City Funds (as hereinafter defined); and (ii) any other costs expressly
made the obligation of REH under this Agreement.
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REH shall cause the Capitol 'Theatre Project to be completed in accordance with
the Plans and the Permits and Exhibits "A-1" and "A-2", and will not amend or deviate from
said Plans and Permits without the prior written consent of the City, which consent will not be
unreasonably withheld. REH will cause its contractor and all vendors and other persons
providing labor, materials or other services in connection with the REH work to be timely paid
and will not permit any charge or lien to be imposed upon any part of the Capitol Theatre
Facility or upon any real or personal property interest of the City. If any such claim or lien
arises, REH will cause the same to be discharged immediately or will provide the City with
proof that such claim or lien is being disputed in good faith.
REH shall commence the Capitol Theatre Project not later than December1.2012
and shall complete the Capitol Theatre Project not later than December 15, 2013; subject,
however, to permitted delays. REH shall be solely responsible for the oversight and
management of the Capitol Theatre Project. In that regard, REH shall be responsible for
contracting with any general contractor and other persons providing materials, labor and
services for the Capitol Theatre Project.
(b) Plan A�proval by the Citv. The City Council has approved the Capitol
Theatre Project in connection with the approval of this Agreement and the execution and
delivery thereof. REH shall, prior to or simultaneously with, the submission of the Plans for
permitting, deliver a set of the Plans to the Administrative Support Manager in the City's Parks
and Recreation Department, and the Administrative Support Manager shall have five (5)
Business Days to determine if the Plans are in conformity with E�chibits A-1 and A-2 hereto. If
the Administrative Support Manager determines that such Plans as submitted are not in
conformity with Exhibits A-1 and A-2 hereto, the Administrative Support Manager shall report
the discrepancies to REH and the City Manager, following such determinations, REH shall have
the option to either amend the Plans to bring them into compliance with Exhibits A-1 and A-2
or to submit revised Exhibits A-1 and A-2 to the City Council for approval.
(c) Permits. REH shall submit all necessary applications for the Permits.
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If REH fails to diligently pursue the Permits, or if it fails to obtain the Permits
within the time permitted under this Section 7, then the City may, in its sole discretion,
terminate this Agreement by giving REH written notice of such intent. Upon such termination,
neither party shall have any further duties or obligations to the other under this Agreement;
provided, however, that REH shall deliver to the City copies of all of the Plans within ten (10)
days after written demand therefore, at no cost or charge to the City.
(d) PaKment and Performance Bond. REH shall, at its sole cost and expense,
provide a payment and performance bond in favor of the City, guaranteeing the faithful
payment of all costs in connection with the Capitol Theatre Project and the performance thereof.
Such bond shall be issued by a bonding company selected by REH, but which is reasonably
acceptable to the City.
(e) Cost of Construction. Except as expressly provided otherwise herein, the
City will be responsible for and will pay all costs associated with the Capitol Theatre Project
and the City Project, not to exceed Seven Million One Hundred Twelve Thousand Two
Hundred Nine and 00/100 Dollars ($7,112,209.00) (the "City Funds"). T'he City Project is
anticipated to cost One Hundred Sixty-eight 'Thousand Dollars ($168,000.00). Any funds not
required to pay the costs of the City Project shall be available to pay costs of the Capitol Theatre
Project. As the Capitol Theatre Project is underway, the City Funds shall be used to reimburse
REH for costs of the Capitol Theatre Project and disbursed to REH within seven (7) days after
receipt of a written request for draw, which shall be in such form as the City may reasonably
require. Each such draw request shall include copies of all invoices and bills and payment
verification for the persons providing materials, labor and other services in connection with the
work covered by such draw request. REH shall provide the City with lien waivers and releases
for all such materials, labor and services being reimbursed with the funds covered by the draw
request. Further, prior to disbursing any funds with respect to any draw request, the City shall
have the right to require a certificate of the architect stating that the work covered by the draw
request has been properly completed in accordance with the Plans and the Permits. The City
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will obtain builder's risk insurance for the Capitol Theatre Project, the costs of which will be
paid from City Funds.
REH shall be responsible for and shall pay all costs in connection with the
Capitol Theatre Project in excess of the amount of the City Funds.
If at any time, due to cost overruns or other reasons, the City determines that the
costs of completing the Capitol Theatre Project will exceed the amount of the remaining
undisbursed City Funds, then the City shall not be required to make any further disbursements
until REH has deposited into an escrow account held by the City an amount equal to the
amount of such excess costs. Such amount will be added to and become part of the City Funds,
and will be disbursed by the City in the same manner as the City Funds.
(f) Cit� Project. The City shall be responsible for the contracting and
completion of the City Project (as identified on Exhibit "A-3" hereto), and shall be responsible
for the payment of all costs incurred in connection with the development of any plans and
specifications for the City Project and the requisite permits for the City Project from City funds.
(g) Owner's Representative. The City Manager shall have the right to
designate an owner's representative during construction, and once designated, shall be invited
to attend all construction progress meetings.
7. Operation of Capitol Theatre Facility by REH.
(a) REH O�eration. REH shall operate the Capitol Theatre Facility for and
on behalf of the City as a performing arts theater, including overseeing the consiruction,
demolition, renovation, maintenance, repair, replacement, expansion and operation of the
Capitol Theatre Facility, together with activities customarily associated with operating a
performing arts theater, including, but not limited to the booking, promoting and holding of
professional performing arts, educational events and movies, collection of admission charges,
provisions for concessions and parking services for a fee, rental of the facilities to local
community groups consistent with the City and community uses of the Capitol Theatre Facility,
in a manner to insure the Capitol Theatre Facility shall be used and occupied to promote
development of any and all of the performing and visual arts, and to cultivate public and
—13—
professional knowledge and appreciation of all such arts. Capitol Theatre Facility may also be
operated by REH to provide banquet, restaurant, concession and other food and beverage
activities inside the Capitol Theatre Facility as well as outside the building, sidewalks, adjacent
blocks and other parts of the Cleveland Street District, as permitted by a special events permit
or City Code, and conduct retail activities reasonably related to the other uses of the Capitol
Theatre Facility, inside the Capitol Theatre Facility and to provide ancillary services for
performing or visual artists or educators or for students or the theater-going public generally,
necessary or desirable to promote or facilitate the foregoing uses, including without limitation
the publication and dissemination of any and all media materials relating to the foregoing.
REH agrees that the premises shall be operated and maintained in such a manner as to be a
credit to the City, and shall be made available to all members of the public regardless of race,
color, creed, national origin or religious preference and shall be developed, operated and
maintained in a manner consistent with the public interest. REH shall be entitled to retain any
and all revenues generated by REH's operation of the Capitol Theatre Facility, with the express
understanding that REH shall also be solely responsible to pay the ongoing operating costs of
the Capitol Theatre Facility from such revenues or other funds of REH without contribution
from City except as expressly provided for in this Agreement.
(b) Bud�et. REH shall prepare and submit to the City Manager not less than
60 days before the start of each Fiscal Year a proposed Operating Budget and Capital
Improvement Budget of the Capitol Theatre Facility, including a projection of the performances
and events to be held at the Capitol Theatre Facility during such Fiscal Year. The City Manager
shall approve or disapprove the budget within 30 days of receipt, which approval shall not be
unreasonably withheld. In reviewing the budget the City Manager shall do so within the
context of the performance standards delineated in Exhibit B and the objective of assuring the
operation, programming, maintenance and marketing of the facility at a level comparable to
similar performing arts facilities delineated in Exhibit B. Not later than 30 days following the
start of each such Fiscal Year, REH shall deliver to the City Manager the final budget for such
Fiscal Year (the "Final Budget").
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(c) Administrative and Artistic Control. REH shall have sole administrative
and artistic control over the events and activities conducted within and on the premises through
the operations of REH so long as such events and activities shall be consistent with the above
stated purposes. REH will not have administrative and artistic control over events when rented
and operated by community groups.
(d) Prohibited Activities. The premises shall not be utilized by REH for the
purpose of working or campaigning for the nomination or election to any public office, whether
partisan or non-partisan, but REH shall not be precluded from renting all or part of the
premises to persons or entities for political activities.
(e) Use of Capitol Theatre Facility at the Direction of the CitX. Subject to
the terms and provisions of this Agreement, REH agrees to make the Capitol Theatre Facility
available for uses (each "use' shall be one day) as follows:
(1) Ci Use: The City shall have the right to use the Capitol Theatre,
or any partion thereof, upon reasonable advance notice and subject to availability, for
govemmental purposes including, but not limited to, meetings, receptions, seminars,
and training classes, without payment of any rental fee or other fees. These uses will be
limited to 5 uses per year.
In addition, the City shall have the right to use the Capitol Theatre, or any
portion thereof, upon reasonable advance notice and subject to availability, far
governmental purposes including, but not limited to, meetings, receptions, seminars,
and training classes, without payment of any rental fee or use fees, except for direct out-
of-pocket costs such as custodial services associated with such uses.
(2) Use b� Local Civic and Non-�rofit Or�anizations: At the direction
of the City, upon reasonable advance notice and subject to availability, REH shall
provide the use of the Capitol Theatre, or any portion thereof, to local civic and non-
profits at reduced rates. In addition to the reduced rates, REH will provide a waiver of
the base fee for up to 5 such uses per year at the direction of the City.
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(f) City Review of Operations; Performance Standards. The City shall
review and monitor the performance of REH under this Agreement from time to time in
accordance with the performance standards established by the City and set forth in Exhibit "B"
hereto, as same may be reasonably modified or supplemented by the City from time to time.
(g) REH's Duties and Obli at�� ions. REH shall be responsible for the
complete management, operation, maintenance and marketing of the Capitol Theatre Facility
and shall carry out all provisions of this Agreement consistent with industry standards and
the approved Management Plan, Final Budget, Standard Operating Procedures Manuals and
other Submittals described in this Paragraph 7. REH shall be responsible for fulfilling its
duties and obligations during the entire Term, unless otherwise provided below. REH's
shall perform the duties and responsibilities which shall include, but are not limited to, the
following:
(1) Marketin�. Market, advertise and promote the Capitol Theatre
Facility and events and activities to be conducted at the Capitol Theatre Facility;
provided, however, that the City acknowledges that event promoters are primarily
responsible for the marketing of their own events and the role of the REH is to
assist event promoters and to utilize the resources that are available for this purpose
(e.g., Capitol Theatre website).
(2) Events and Activities. REH shall book events and activities at
the Capitol Theatre Facility. They shall be responsible for preparation, production
and/or public presentation and/or public exhibition of dramatic and musical-dramatic
works, dance, motion pictures, television, music, recordings and works of fine, visual or
performing arts. There will be at least 100 events at the Capitol Theatre annually. Of
these 100 events, there will be a minimum of 75 live self presented productions or
e�cY►ibitions of dramatic or musical-dramatic works, dance and/or music.
(3) Goods and Services. REH shall provide or contract for all
goods and services necessary to manage, operate, maintain and market the Capitol
'Theatre Facility and administer all agreements for goods and services.
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(4) StaffinQ. REH shall hire and train all employees so that the
Capitol Theatre Facility will be properly staffed with qualified personnel.
(5) News, Entertainment and Educational Media. REH shall
coordinate news, entertainment and educational media of all types.
(6) Ins�ections, O�erations and Maintenance. REH shall provide
effective inspections, operations and maintenance for the Capitol Theatre Facility,
including but not limited to preventative maintenance, inspections far dangerous
conditions, repairs, risk management, hurricane and emergency procedures, fire
prevention, security, custodial services, energy conservation and landscape
maintenance.
(7) Performance Measures. Meet the performance measures set forth
in Exhibit B, in full and complete accordance with this Agreement, as such
performance measures may be adjusted pursuant to Section 7(e) hereof.
(8) Good Faith. At all times during the Term, REH shall act in good
faith consistent with the goals and terms of this Agreement.
(9) Sound Business Practices. REH shall utilize sound business
practices in the management, operation, maintenance and marketing of the Capitol
Theatre Facility.
(h) Cit�Mana�er Submittals. REH shall prepare and submit the following
for approval to the City Manager, or the City Manager's designee, which approval shall not be
unreasonably withheld, by the dates noted within each item's description, as provided below:
(1) Within sixty (60) days of the Occupancy Date, REH shall
prepare and submit the following:
(a) Budget• A proposed Operating Budget and Capital
Improvement Budget of the Capitol Theatre Facility will include a projection of
the performances and events to be held at the Capitol Theatre Facility during the
upcoming fiscal year.
—17—
(b) Staff Plan. A Staff Plan will address the management,
operation, maintenance and marketing of the Capitol Theatre Facility. The Staff
Plan shall be adequate to fulfill the minimum performance requirements listed in
Exhibit "B" of this Agreement, and shall be at a level consistent with that of
similarly-sized performance venues including, but not limited to the Olympia
Theatre at Gusman Center for the Performing Arts (Miami), the Colony Theatre
(Miami Beach), the Filmore Jackie Gleason Theater (Miami Beach), and the
Tampa Theatre. The Staff Plan shall include, but not limited to, an organizational
chart, job descriptions, qualifications, pay ranges and benefit programs, and
percent of time each staff inember is specifically allocated to the Capitol Theatre.
The Staff plan shall also include a description of any operational functions that
may be subcontracted along with a narrative explanation supporting the
rationale of subcontracting those functions. If there are changes or updates to the
Staffing Plan, REH shall submit such to the City Manager within sixty (60) days.
(c) Standards of Maintenance and Re�lacement.
Standards of Maintenance and Replacement and a Maintenance and
Replacement Plan for the upcoming fiscal year shall set forth specific
maintenance requirements for the Capitol Theatre Facility, including, but not
limited to, preventative maintenance and specific maintenance procedures set
forth in equipment and material warranties. The Capitol Theatre shall be
maintained and kept within adequate industry standards and of a condition
consistent with that of similarly-sized performance venues including, but not
limited to the Olympia Theatre at Gusman Center for the Performing Arts
(Miami) ,the Colony Theatre (Miami Beach), the Filmore Jackie Gleason Theater
(Miami Beach), and the Tampa Theatre. A separate Forecast of Annual
:
Maintenance and Replacement needs document shall be prepared and submitted
to the City Manager on an annual basis and is referred to as Exhibit "B".
(d) Standard O�eration Procedures Manuals. Standard
Operating Procedures Manuals shall provide for the administration, marketing,
emergency procedures, custodial procedures, security and other management or
operations functions. If there are changes or updates to the submitted
documents listed above, REH shall submit such to the City Manager within sixty
(60) days.
(e) Accounting Procedures Manual. An Accounting
Procedures Manual shall utilize accounting and financial procedures for the
Capitol Theatre Facility which comply in substance and form with those
accounting and financial procedures and forms set forth in this Agreement.
(2) Annua�. No later than August 1 of each year of the Term, REH
shall prepare and submit to the City Manager a Management Plan, Capital
Improvement Plan and Budget for the following Fiscal Year of operation for
approval.
(a) Mana�ement Plan. The Management Plan shall
contain such information as required by the City Manager, including, but not
limited to: an updated Staff Plan, Event Plan (including programming
opportunities, scheduled events, and marketing and promotional plans), a
comprehensive Maintenance Plan, and a final financial forecast of Gross Revenue
and Costs of Operation.
(b) Capital Im�rovement Plan. The Capital Improvement
Plan shall contain a description, estimated cost and schedule of Capital Projects
and replacement of capital assets necessary for the maintenance of the Facility
over a ten (10) year period.
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(c) Budget. A proposed Operating Budget and Capital
Improvement Budget for the Capitol T'heatre Facility, including a projection of
the performances and events to be held at the Capitol Theatre Facility.
(i) Re�ortin� Requirements. REH shall meet the following reporting
requirements to the City:
(1) Periodic Re�arts. No later than the sixtieth (60th) day following
the end of each Fiscal Year quarter, REH shall prepare and submit to the City Manager
quarterly reports summarizing revenues and expendiiures for the preceding quarter
(including a reconciliation to the Final Budget), bank reconciliation of all accounts for
the preceding quarter, events during the preceding quarter, and upcoming events.
All quarterly reports shall contain such additional information as may be required by
the City Manager. All financial statements and reports shall conform in form and
substance with the accounting and financial procedures set forth in this Agreement.
(2) Annual Re�ort. Within ninety (90) days of the City's Fiscal
Year financial closing for Fiscal Year 2013 and within ninety (90) days of the City's
Fiscal Year financial closing for each Fiscal Year thereafter, REH shall prepare and
submit to the City Manager a report summarizing revenues and expenditures for the
preceding Fiscal Year, accomplishments and plans related to advertising, marketing and
programming, compliance with the performance measures set forth in this Agreement
and such other data and information as the City Manager and City Council may
require. If requested by the City Manager or City Council, REH shall attend a City
Council meeting to respond to inquiries regarding the annual report.
(3) Maintenance Ins�ections. The City shall have the right to
periodically perform maintenance inspections of the Capitol Theatre Facility upon
reasonable prior notice to REH, and shall be entitled to require that REH add identified
capital improvements to the Capital Improvement Plan.
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(j) Duties and Responsibilities of the Citv.
(1) Coo�eration. The City Manager agrees to cooperate with REH
and identify the staff that shall act as City liaisons for purposes of this Agreement.
(2) Communication/Res�onsibilit� The City Manager agrees to
communicate in a timely fashion to REH any request, information, or decision
necessary to the management, operation, maintenance or marketing of the Capitol
Theatre Facility or contemplated under this Agreement.
(3) Access. 'The City Manager shall provide REH access to the
Capitol Theatre Facility to enable REH to perform its obligations under this Agreement,
subject to restrictions deemed necessary for safety reasons.
(k) Laws Related to Public Buildings and Public Works. REH
acknowledges that there are Laws applicable to the construction of public buildings and
repairs upon public buildings and public works, including but not limited to Laws requiring
execution and delivery of a performance and payment bond (e.g., Section 255.05, Florida
Statutes). REH shall comply and cause its subcontractors to comply with such Laws and
obtain and cause its subcontractors to obtain all required performance and payment bonds
(regardless of whether the contract for construction or repair is between the REH and the
contractor or the contractor and the City.)
(1) Ec�ual Employment Opportunity. During the performan c e of this
Agreement, REH shall not discriminate against any employee or applicant for employment
because of age, disability, race, color, religion, sex or national origin. REH shall ensure that
qualified applicants for employment are employed, and that employees are treated during
em ployment, without reg ard to age, disability, race, color, religion, sex, sexual orientation or
n ational origin. Such obl igat ion shall extend to, but not be 1 imited to, the fol low ing
empl oyme nt action s: e mployment, pr omo tion, d emo tion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay an d other for ms of
compen sat ion; and selection for tra inin g, including apprenti cesh ip. REH sha ll post in
con spicuous pl aces, available to employees and applicants for employment, notices setting
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forth the provis ions of this eq ual employm ent opportunity pol icy. REH s hall in s uch
notice s st ate that all qualified candidates will receive consideration for employment without
regard to age, disability, race, color, religion, sex or national origin. REH shall incorporate this
provision in all contracts and subcontracts issued or made pursuant to this Agreement.
(m) Recor dke e�ine. REH shall maintain all book s, records, reports, and
other documents related to the management, operation, maintenance and marketing of the
Ca pitol Thea tre F aci lity (includ ing but not limited to all contract s, subcontr acts , accounting
and fin ancial r ecords , Bo oking Busin ess Reco rds, marketing databases, ticket sales
databases, and box office databases) at its Ruth Eckerd Hall office. REH shall maintain all
such books, records, reports, and other documents in accordance with Ch apter 119, Florida
Statutes. All such books, records, re ports and other documents shall be open to examination,
audit and copying by the City and its designees (including but not limited to the City's
independent auditors) at all times.
(n) Financial Audits.
(1) Annual Audit. The City engages an independent auditar to
perform an annual audit and related tests and activities required to issue an
independent opinion of the accuracy of the City's financial statements. REH shall
provide the City's independent auditor with access to all books, records, reports, and
other documents requested by the independent auditor.
(2) Cit� Manager or City Council Order. In order to ensure
compliance with this Agreement, the City Manager or City Council may order an
audit of all accounting records, financial records, funds, accounts and procedures
related to the Capitol 'Theatre Facility or governed by this Agreement. Such audits may
be conducted at any time during the Term without notice. The City Manager or City
Council, depending on who ordered the audit, shall determine whether City staff or an
independent auditor shall perform the audit. Any discrepancies shall be noted to
the REH and, except in case of theft, criminal conduct amounting to a felony,
fraud, gross negligence, willful or wanton misconduct or breach of fiduciary
— 22—
responsibility, in which case there is no opportunity to cure, REH shall have thirty
(30) days in which to comply with proper procedures and this Agreement. Failure of
the City Manager to note any discrepancies with respect to REH's accounting and
financial procedures shall not relieve REH of its obligation to comply with the
accounting and financial procedures and other terms and conditions contained in this
Agreement. There is no limit on the number of audits that may be ardered by the City
Manager or City Council pursuant to this Section 7(n).
(3) Performance Audit. The City Manager or City Council may at
any time require an independent management audit or review and inspection of the
Capitol Theatre Facility and REH's operation thereof.
8. Payment of Utilities. REH shall pay all charges for heat, gas, electricity and
other public or private utilities used and consumed by it on the Premises during the term of this
Agreement. To the extent possible under City policies relating to discounts for utilities
provided to not-for-profit, tax exempt entities, City shall provide utility discounts to REH for
City utilities consumed by REH on the Capitol Theatre Facility.
9. Maintenance of Capitol Theatre Facility by REH. Following the completion of
the construction, renovation and repair of the Capitol Theatre Facility provided for in section 6
hereof, REH will not commit any waste of the Capitol Theatre Facility and shall maintain, at its
sole costs and expense, the Capitol Theatre Facility in accordance with the Maintenance and
Replacement Standards and the Capital Improvement Plan in a neat and orderly manner,
performing or causing to be performed, all maintenance and repairs required to keep and
maintain the interior and exterior of the Capitol Theatre Facility in as good condition and repair
as the same exist following the completion of the construction, renovation and repair
contemplated in the Agreement. Ordinary wear and tear of the facility may be taken into
account as long as the Maintainance Standards and Capital Improvement Plan has been
observed by REH. REH further covenants and agrees to keep and maintain the exterior of the
premises, including landscaping. REH shall be responsible for maintaining, repairing or
replacing, as needed, any component of the buildings comprising the Capitol Theatre Facility,
— 23—
including the load bearing and non-load bearing walls and columns, roof system, plumbing
system (lying within or without the walls of the buildings) and HVAC systems, which are
required to allow the operations of the Capitol Theatre to continue.
10. Warranties. City and REH shall be entitled to benefit from all warranties of
manufacturers or contractors relating to any replacement items.
11. O�erating Reserve Fund. In order to provide assurance that the commitment of
City and REH will meet the needs of the community in the future as a result of a well operated
and maintained facility, and to fulfill REH's obligation to provide funds for such purposes, City
shall create and administer, and REH shall fund an operating reserve fund ( the "Reserve
Fund") meeting the following requirements.
(a) Contributions to the Reserve Fund. Prior to obtaining a certificate of
Occupancy for the renovated Capitol Theatre Facility from City, REH will deposit the sum of
One Million Dollars ($1,000,000) with the City which deposit will be held by the City in a
Treasurer's Escrow Agency Fund and designated the "Capitol Theatre Reserve Fund". On the
first and second anniversaries of the creation of the Reserve Fund, REH will add an additional
Five Hundred Thousand Dollars ($500,000) to the Reserve Fund so that on the second
anniversary REH will have deposited a total of Two Million Dollars ($2,000,000) into the
Reserve Fund. Beginnulg with the third anniversary of the creation of the Reserve Fund and
each year thereafter until the twelfth anniversary, REH will add One Hundred Thousand
Dollars ($100,000) to the Reserve Fund, subject to the review referred to in subsection (d )
below. Investment earnings on funds credited to the Reserve Fund shall be credited to and
retained in the Reserve Fund.
(b) Use of Reserve Fund Monies. The monies in the Reserve Fund are to be
used exclusively to meet the Costs of Operation and Maintenance of, and to pay for City
approved Capital Improvements to, the Capitol Theatre Facility to the extent there are
insufficient Gross Revenues generated by the activities conducted by REH at the Capitol
Theatre Facility to fully fund those costs (in which case, there are no Net Revenues). At any
time during a Fiscal Year, REH can draw monies in the Reserve Fund to pay the Costs of
- 24-
Operation and Maintenance for which insufficient Gross Revenues have been received by REH
in such Fiscal Year, provided however, that at any one time, REH may not withdraw, on an
aggregate basis, an amount in excess of twenty five percent (25%) of the amount that should be
on deposit in the Reserve Fund determined in accordance with the schedule of deposits in
subsection (a} above. Each withdrawal from the Reserve Fund shall be repaid to the Reserve
Fund within twenty-four (24) months following the date of each such withdrawal in not less
frequent than two (2) annual instaliments.
(c) Disbursement from Reserve Fund. REH may request a withdrawal from
the Reserve Fund as of the end of each Fiscal Year quarter. REH shall make a written
application to the City for the Costs of Operation and Maintenance. The written application
shall contain (i) information on the Gross Revenues of REH derived from the operation of the
Capitol Theatre Facility, (ii) the Costs of Operation and Maintenance, (iu) the items of Costs of
Operation and Maintenance to which the withdrawn funds will be applied by REH, (iv) the
reason why Gross Revenues are not sufficient to pay all Costs of Operation and Maintenance,
and (v) the plan of REH to improve Gross Revenues or reduce Costs of Operation and
Maintenance to address the current shortfall and avoid such shortfalls in future years.
(d) Fifth Year Review. Since both parties agree that the initial Reserve Fund
amount was an estimate not based on any historical data, City and REH will meet within sixty
(60) days of the end of the fifth anniversary of the Reserve Fund to review the status of the
Reserve Fund. The purpose of the review will be to see how the monies in the Reserve Fund
have been utilized over the five (5) year period and to determine whether the balance in the
Reserve Fund needs to be increased or decreased and whether there is a need for the One
Hundred Thousand Dollar ($100,000) contributions to the Reserve Fund to be increased or
decreased past the fifth (5�) year. In making a decision on these issues, the following factors will
be considered by City and REH:
1. Actual historical operating statements for the five (5) preceding years.
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2. A set of future projections more factually estimating the realistic and
practical reserve level needed taking into account historical and anticipated increases in
the Cost of Operation and Maintenance and Capital Improvement needs.
City recognizes that retaining monies in the Reserve Fund is intended to provide
protection for the continued operation of the Capitol Theatre so its intended community
purpose can be achieved. If based on the review City determines a reduction in the
deposits set forth in 11(a), Reserve Fund will not risk the intended objective of
maintaining a successful performing arts theater, such adjustment shall be made within
thirty (30) days of the determination. If based on the review City believes additional
monies are to be contributed to the Reserve Fund by REH, REH will contribute the
amount estimated to meet the needs for operations and maintenance over the following
five year period within sixty (60) days of City's request.
3. During the term of the Agreement, each five (5) years after the first five
(5) year review, City and REH shall meet to review the status of the Reserve Fund and
follow the process set out in 11(c) to determine if changes should be made to the monies
in the Reserve Funds.
4. Upon termination of the Agreement, any funds remaining in the Reserve
Fund which are not required to meet REH's obligations under this Agreement shall be
the property of REH.
(e) Disposition of Reserve Fund u�on Termination. Upon the termination
of this Agreement, whether at the end of a Term or upon earlier Termination, the City shall
make an assessment of the then physical condition of the Capitol Theatre Facility and the
Capitol Theatre Inventory, and shall be entitled to use the funds on deposit in the Reserve Fund
to restore the Capitol Theatre Facility and the Capitol Theatre Inventory to the condition it was
in upon initial completion of the Capitol Theatre Project, and if the Agreement is terminated
prior to the end of the Term, the City shall be entitled to use the funds on deposit in the Reserve
Fund to pay the ongoing Cost of Operation and Maintenance until a successor operator of the
Capitol Theatre Facility has entered into an operating agreement with the City to operate the
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Capitol Theatre Facility on behalf of the City. Following such uses, any funds then remaining in
the Reserve Fund shall be released by the City and delivered to REH if REH is then in existence
and is continuing to operate as an exempt organization.
12. Installations, Alterations and Removal. Alterations or permanent additions to
the Premises shall be made at the sole cost and expense of REH and shall be consistent with the
uses authorized herein, and shall be undertaken only upon receiving the prior consent of City to
such alteraHons or permanent additions and obtaining all appropriate permits. Any such
contracts for alterations and permanent additions to the Capitol Theatre Facility shall be
obtained in conformity with City's procurement procedures for similar contracts, and in the
case of alterations and permanent additions of a value of more than $25,000 REH shall require
the contractor to provide a payment and performance bond in compliance with Section
255.05(1), Florida Statutes, providing the City as additional named insured. Any alterations or
permanent additions shall be completed free and clear of all mechanics' and other similar liens
and claims. REH shall not have the right to expose the City's ownership interest to any
mechanic or consiruction liens, and to the extent requested by the City, will join in a document
to be recorded in the public records reflecting such limitations. REH shall also make such
alterations and permanent additions to the Capitol Theatre Facility as may be required by REH,
and REH may install such equipment, fixtures and property as it may require for its business
purposes including, without limitation, antennas, satellite dishes for satellite communications
and a radio antenna for radio communications on the roof or other part of the Capitol Theatre
Facility. However, all improvements and equipment shall comply with all applicable laws,
ordinances and regulations, and shall require City approval in its capacity as owner of the
Capitol Theatre Facility prior to undertaking such installations, alterations and removals.
Title to all alterations, additions and improvements to the Capitol Theatre Facility shall
rest in and remain with City, subject to REH's use pursuant to this Agreement.
13. Signs. REH may maintain existing signage, and may place suitable signs on the
Capitol Theatre Facility for the purpose of indicating the nature of the business carried on by
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REH in said Capitol Theatre Facility; provided, however, that such signs shall comply with all
applicable laws, ordinances and regulations.
14. Parkins. During the term of this Agreement, City will allow REH to use the City
parking lot in front of the City Hall at 112 S. Osceola Avenue, Clearwater, Florida, on
performance and event days for parking on evenings after 6:00 pm and on Saturdays and
Sundays (with the exception of the 24 hour reserve parking spaces ). The parking lot will not be
available for REH use during the following events: (i) those days on which a City Council
meeting is scheduled to occur or (ii) on which days any official City agency or commission or
the Downtown Development Board is scheduled to meet. (iii) during designated City Co-
sponsored events in Coachman Park. The City will provide a list of co-sponsored events
annually. REH will fully staff the City parking or valet parking lot for ticketed patrons during
Capitol Theatre events.
15. Insurance.
(a) Insurance Covera�e Rec�uirements. Commencing on the date of this
Agreement and continuing during the entire Term, REH shall obtain and maintain
continuously in effect at all times the minimum insurance as set forth below. All insurance
policies shall be satisfactory to the City Manager. At a minimum, policies shall be written by
companies authorized and licensed to conduct business in the State of Florida and rated no
lower than "A-, VIII" by A.M. Best rating agency or a similar rating agency approved by the
City Manager. The following types and amounts of insurance are the minimum requirements
established by the City Manager. The City does not represent that such types and amounts are
sufficient to protect the REH's interests or liabilities and the insurance requirements of this
Section 15 shall in no way be interpreted to limit REH's liability under this Agreement. The
insurance limits and coverages are subject to increase as the City Manager may require.
(1) Commercial General Liabilitv. Commercial general liability
insurance in an amount of at least $1,000,000 per occurrence, $2,000,000 aggregate in
occurrences form. Coverage shall include bodily injury and property damage liability
for the Capitol Theatre Facility, operations, products and completed operations,
,�► '�
personal injury, contractual liability under this Agreement, broad form property
damage and fire legal liability in the minimum amount of $100,000.
(2) Automobile Liabilitv. Automobile liability insurance in an
amount of at least $1,000,000 combined single limit. Coverage shall include bodily
injury and property damage arising out of ownership or use of any automobile,
including owned, non-owned and hired automobiles and employee non-ownership use.
(3) Workers' Com�ensation and Em�loyers Liabilitv. Workers'
Compensation insurance per State of Florida requirements and employers liability
insurance in an amount of at least $100,000 each accident, $100,000 each employee,
and $500,000 for disease.
(4) Contingent Lic�uor Liabilitv. Contingent liquor liability
insurance with a minimum limit of $1,000,000.
(5) Excess Liability Insurance. Excess liability insurance in an
amount of at least $5,000,000.
(b) Deductibles. All deductibles shall be commercially reasonable.
Provided that REH obtains City Manager approval of the policies obtained by REH pursuant to
this Paragraph 15 and the amounts of deductibles, such amounts shall be Costs of
Operation and Maintenance.
(c) Additional Insureds. REH's insurance policies, except for Workers'
Compensation insurance and Employers Liability insurance, shall be endorsed to name the
City as an additional insured.
(d) Evidence of Insurance. Upon issuance, REH shall provide the City
Manager with original certificates of insurance on standard ACORD forms, or certified copies
thereof, naming the City as an additional insur�d. REH shall retain custody of the originals
of all insurance policies and endorsements. Upon request, REH shall provide the City
Manager with certified copies of complete insurance policies with all endorsements.
(e) Notice. Insurance shall be documented in certificates of insurance which
provide the City Manager at least thirty (30) days advance written notice of cancellation, non-
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renewal or material change in coverage. Renewal certificates shall be provided to the City
Manager annually.
(fl Waiver of Subrogation. REH hereby waives any right to recover
against the Indemnified Parties for Claims covered by the insurance required to be maintained
by REH pursuant to this Paragraph 15. 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. REH shall cause each required insurance policy
to be written to provide that the insurance company waives all rights of recovery by way
of subrogation against the Indemnified Parties.
(g) Claims. REH shall promptly investigate or cause to be investigated all
accidents and claims for personal injury or damage relating to or arising out of the
management, operation or maintenance of the Capitol Theatre Facility, and shall report to the
City's Risk Management Department all such accidents and claims. REH also shall investigate
or cause to be investigated all physical damage to the Capitol Theatre Facility and shall report
to the City Manager all such damage, together with the estimated cost of repair. Unless
otherwise directed by the City Manager, REH shall make all necessary repairs to the Capitol
Theatre Facility, utilizing for that purpose the amount budgeted therefar in the Final Budget,
the proceeds of insurance payments. In addition, REH shall prepare any and all reparts
required by any insurance company or the City Manager as a result of any accident, claim or
damage, and shall submit the same to the City Manager.
(h) Premiums. Provided that REH obtains City Manager approval of the
insurance policies required to be obtained by REH pursuant to this Paragraph 15 and the
amounts of any premiums, such premiums shall be Costs of Operation and Maintenance.
(i) Primary Policies. All insurance policies shall be written as primary
policies and shall not be contributing with any coverage which the City may have.
(j) Pro�erty and Ec�uipment of REH. REH shall be solely responsible to
obtain insurance coverage for any and all property and equipment of REH used, stored, or
otherwise located at the Capitol Theatre Facility. Provided REH obtains City Manager
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approval of the premium and deductibles associated with such insurance coverage, such
premium and deductibles shall be Costs of Operation and Maintenance.
(k) Real Property Insurance. The City shall be responsible far obtaining and
continuing real property insurance covering the Capitol Theatre Facility.
(1) Builder's Risk Insurance. The City shall be responsible for obtaining and
continuing Builder's Risk Insurance coverage, including materials, throughout the renovation
project.
16. Indemnitv.
(a) Defense. Hold Harmless and Indemnitv. Commencing on the Execution
Date and continuing during the entire Term, REH shall defend at its expense, pay on behalf
of, hold harmless and indemnify the City, its officers, employees, agents, elected and
appointed officials and volunteers (collectively, "Indemnified Parties") from and against
any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and
damages (collectively, "Claims"), whether or not a lawsuit is filed, including but not limited
to costs, expenses and attorneys' and experts' fees at trial and on appeal and Claims for
damage to property or bodily or personal injuries, including death at any time resulting
therefrom, sustained by any persons or entities, which Claims are alleged or claimed to have
arisen out of or in connection with, in whole or in part, directly or indirectly:
(1) The breach of any provision of this Agreement (including any
amendments hereto) by REH, its employees, agents, representatives or
subcontractors; or
(2) Any negligent act or omission of REH, its employees, agents,
representatives, or subcontractors, whether or not such negligence is claimed to be
either solely that of REH, its employees, agents, representatives or subcontractors, or
to be in conjunction with the claimed negligence of others, including that of any of
the Indemnified Parties; or
(3) Any reckless or intentional wrongful act or omission of REH, its
employees, agents, representatives, or subcontractors.
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(b) Hazardous Material Claims. Without limiting the generality of the
foregoing, REH specifically acknowledges that its obligations pursuant to this Paragraph 16
shall apply to Claims in connection with or arising out of the transportation, use, storage,
maintenance, generation, manufacturing, handling, disposal, release or discharge of any
Hazardous Material by REH, its employees, agents, representatives, or subcontractors, but
REH's obligations pursuant to this Paragraph 16 shall not apply to any other Clauns related
to environmental contamination.
(c) Notice, Defense and Settlement of Claims. The City will promptly
notify REH in writing of a Claim against the Indemnified Parties. REH shall have the
right to control the defense of any Claim subject to the foregoing indemnification. REH
also shall have the right to settle any such Claim provided that REH pays the entire amount
of such settlement and there is no finding of fault against the Indemnified Parties.
(d) Provisions Independent of Insurance and Survival. The provisions of
this Paragraph 16 are independent of, and will not be limited by, any insurance required to be
obtained by REH pursuant to this Agreement or otherwise obtained by REH, 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.
(e) Costs, Expenses and Liabilities. Costs, expenses and liabilities
associated with REH's performance of its defense and indemnification obligations (including
but not limited to attorneys' fees and costs and the monies necessary to satisfy settlements
and judgments) shall not be considered Costs of Operation and Maintenance.
(f) Limitations. REH's obligations pursuant to this Paragraph 16 shall not
apply to Claims arising out of the City's sole negligence.
(g) Limitation of Liabilitv. The City and REH shall not be liable to each
other for incidental or consequential damages; provided, however, this Paragraph 16 shall
not relieve REH (or its insurer) of its duty to defend and indemnify the City for any Claims
against the City seeking consequential or incidental damages.
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(h) Waiver of City's LiabilitX. Commencing on the date of execution hereof
and continuing during the entire Term, the City shall not be responsible or liable for and
REH hereby waives all Claims against the City for damage or destruction of property ar any
other interest of REH, regardless of the cause. All of REH's property of every kind and
description which may at any time be on City property shall be at REH's sole risk.
17. Damage or Destruction. REH is responsible to repair any damage or destruction
to the Capitol Theatre Facility with insurance coverage provided by City. If all or any part of
the Capitol Theatre Facility shall be damaged ar destroyed by fire or other casualty insured, the
proceeds shall be used for repair or rebuilding as a result of such damage or destruction. In the
event REH shall fail or refuse to undertake the appropriate planning and permitting process, or
otherwise begin to process reconstruction subsequent to damage or repair, within a reasonable
period of time, in the sole discretion of City, City shall be free to enter into one or more
contracts with an alternate party to accomplish such rebuilding and repair of the Capitol
Theatre Facility. In all events, the insurance proceeds shall be retained and held by the City and
used by the City for the Capitol Theatre Facility substantially in accordance with the provisions
of section 6 hereof.
18. Hazardous Material.
(a) Use and Handling of Hazardous Material. REH shall not transport, use,
store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous
Material or permit any of REH's employees, agents, representatives or subcontractors to
engage in such activities. However, the foregoing shall not prohibit the transportation to
and from, and use, storage, maintenance and handling within the Capitol Theatre Facility of
substances customarily used in the operation and maintenance of the Capitol Theatre Facility,
provided: (i) such substances shall be used and maintained only in such quantities as are
reasonably necessary for such operation and maintenance and only in accordance with
applicable Laws; (u) such substances shall not be disposed of, released or discharged at the
Capitol Theatre Facility, and shall be transported to and from the Capitol Theatre Facility and
disposed of in compliance with all applicable Laws; and (iii) for purposes of removal and
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disposal of any such substances, REH shall be responsible for all permit applications,
manifests, waste characterization documents and any other required forms and shall
provide the City Manager with a copy of all such applications, manifests, documents and
forms.
(b) Notice. REH shall immediately notify the City of: (i) any enforcement,
cleanup or other regulatory action taken or threatened by any govemmental or regulatory
authority with respect to the presence of any Hazardous Material at the Capitol Theatre
Facility or the migration thereof from or to other property, to the extent that REH receives
notice of such action or otherwise becomes aware of such action; (ii) any demands or
claims made or threatened by any party relating to any loss or injury resulting from any
Hazardous Material at the Capitol Theatre Facility; (ui) any release, discharge or improper
or unlawful disposal or transportation of any Hazardous Material on or from the Capitol
Theatre Facility or in violation of this Paragraph 18; and (iv) any matters where notice is
required to be given to any governmental or regulatory authority respecting any Hazardous
Material at the Capitol Theatre Facility.
(c) Cleanu� and Removal. If any Hazardous Material is released,
discharged or disposed of by REH or its employees, agents, representatives or
subcontractors in violation of this Paragraph 18, REH shall immediately, properly and in
compliance with applicable Laws notify the proper authorities as required by applicable
Laws, notify the City's Hazardous Material spill contacts, as may be changed by the City
from time to time, cleanup and remove the Hazardous Material from the Capitol Theatre
Facility and any other affected property and clean or replace any affected personal property
(whether or not owned by the City), without limiting the City's other remedies therefar.
Such cleanup and removal work shall be subject to the City's prior written approval
(except in emergencies) and shall include, without limitation, any testing, investigation,
preparation and implementation of any remedial action plan required by any court or
governmental body having jurisdiction or required by the City. In the event the City elects
to have any testing, investigation, cleanup and/or removal (including but not limited to
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preparation and implementation of a remedial action plan) performed by a City contractor (or
contractors), REH shall assist the contractor(s) with such testing, investigation, cleanup
and/or removal as directed by the contractor(s) and the City and promptly pay the
contractor(s) the total amount charged by the contractor(s) in connection with the testing,
investigation, cleanup and removal, provided such amount is commercially reasonable. If the
City or any governmental body arranges for any tests or studies showing that this Paragraph
18 has been violated, REH shall pay for the costs of such tests, provided such costs are
commercially reasonable. Nothing contained in this Paragraph 18 shall limit or otherwise
affect REH's indemnity obligations set forth in this Agreement. REH's obligations related to
cleanup and removal of Hazardous Material shall be limited to those obligations set forth
in this Agreement. REH shall provide the City Manager with a copy of all documentation
related to testing, investigation, cleanup and removal.
19. Dis�ute Resolution. If a dispute arises under this Agreement, the Parties shall
attempt to resolve the dispute by consultation between the Parties. If this fails to resolve
the issue, the Parties may mutually agree upon the employment of a mediator in Pinellas
County, Florida. Any costs and fees other than attorneys' fees associated with the mediation
shall be shared equally by the Parties. Each party shall bear its own attorneys' fees associated
with any mediation.
20. Payment of Taxes. REH shall cause to be paid, before they become
delinquent, all taxes (including but not limited to ad valorem taxes), assessments, excises,
levies, licenses, permit fees and other charges, of any kind or nature whatsoever and of which
REH has written notice, which are levied, assessed, charged or imposed by any public or
quasi-public authority or which accrue, become due and payable out of or on account of, or
become a lien on, the Capitol Theatre Facility or any portion thereof, improvements now or
hereafter situated thereon, or the furniture, fixtures and equipment or other personal
property appurtenant thereto. REH may, however, with City Manager Approval, challenge any
tax, assessment, excise, levy, license, permit fee or other charge.
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21. No Right to Pledge, Encumber or Cause the City to Assume LiabilitX. REH
shall have no right or authority to pledge or encumber the credit of the City. REH shall have
no right or authority to cause the City to assume liability for any contract, lease, purchase or
other agreement without City Manager Approval or City Council Approval, as applicable.
22. No Liens. No lien, mortgage or security interest shall be filed against any City
property by reason of any work, labor, services or materials performed at or furnished to City
property in connection with this Agreement, to REH, or to anyone using City property through
or under REH. Nothing contained in this Agreement shall be construed as consent on the part
of the City to subject City property or any part thereof to any lien, mortgage or security
interest under any Laws.
23. Compliance with Laws.
(a) REH's Compliance. REH shall comply with all Laws applicable to
REH's performance of this Agreement, cause the use and operation of the Capitol Theatre
Facility to comply with all Laws applicable to such use and operation and cause its employees,
agents, representatives and subcontractors to comply with applicable Laws. REH shall
promptly notify the City if REH becomes aware of a violation of any Laws relating to the
Capitol Theatre Facility. Notwithstanding the foregoing, nothing contained in this Paragraph
23 or this Agreement shall require REH to undertake any compliance activity if such
compliance activity requires any Capital Improvements.
(b) City's Compliance. The City shall comply with all Laws applicable to
the City's performance of this Agreement.
24. Permits and Licenses. REH shall obtain any and all necessary permits,
licenses, certifications and approvals which may be required by any government agency
including but not limited to the City, in connection with the Capitol Theatre Facility or REH's
performance of this Agreement. The City shall cooperate with REH in applying for such
permits, licenses, certifications and approvals. Upon request of the City, REH shall provide
the City with written evidence of such permits, licenses, certifications and approvals.
25. Notices.
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(a) Written Notices Delive.r� Date and Recipient Information. Unless and
to the extent otherwise provided in this Agreement, all notices, demands, requests for
approvals and other communications which are required to be given by either party to the
other shall be in writing and shall be deemed given and delivered on the date delivered in
person to the authorized representative of the recipient provided below, upon the expiration of
five (5) days following the date mailed by registered or certified mail, postage prepaid, return
receipt requested, to the authorized representative of the recipient at the address provided
below, or upon the date delivered by overnight courier (signature required) to the authorized
representative of the recipient at the address provided below.
(b) Chan�es. The City or REH may change its authorized representative
or address provided above by providing the other party with written notice of such change.
The change shall become effective ten (10) days after the non-changing party's receipt of the
written notice of change.
26. Ass�nment. Except for an assignment to a wholly owned tax exempt affiliate of
REH, REH shall not assign its interest in this Agreement, in whole or in part, without first
obtaining the written consent of City.
events:
27. Default � REH. Upon the happening of any one or more of the following
(a) REH's continued default in performance of any covenant of this
Agreement for a period of more than thirty (30) days after delivery of written notice of such
default to REH by City, and if the default is not such that can be cured within thirty (30) days,
then REH shall be obligated to have commenced the cure of such default and be proceeding to
cure the same in good faith and with all reasonable due diligence;
(b) REH's making an assignment for the benefit of creditors, or a receiver or
trustee being appointed for REH;
(c) REH abandoning operating the Capitol Theatre Facility;
(d) The Board of Directors for REH declaring their intention to cease to
engage in the purposes and activities hereinabove specified.
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In the event that any one or more of the above identified matters occurs, and the same
not being cured following written notice of default to REH the City at its option may exercise
any one or more of the following options:
(1) declare this agreement to be terminated, ended and null and void,
whereupon the term hereby granted and all right, title and interest of REH in operating
the Capitol Theatre Facility shall end; or
(2) exercise any and all rights and privileges available to the City
hereunder, incident to enforcing the terms and provisions herein in any legal proceeding
under the laws of either the State of Florida, or the United States of America, or both.
28. Default by Citv. In the event of City's continued default in performance of any
covenant of this Agreement for a period of more than thirty (30) days after delivery of written
notice of such default to City by REH, and if the default is not such that can be cured within
thirty (30) days, then City shall be obligated to have commenced the cure of such default and be
proceeding to cure the same in good faith and with all reasonable due diligence.
In the event that any one or more of the above identified matters occurs, and the same
not being cured following written notice of default to City, REH at its option may exercise any
one or more of the following options:
(1) declare this agreement to be terminated, ended and null and void and; or
(2) exercise any and all rights and privileges available to the REH hereunder,
incident to enforcing the terms and provisions herein in any legal proceeding under the
laws of either the State of Florida, or the United States of America, or both.
29. Adverse Events Termination. Upon the occurrence of an Adverse Event (as
hereinafter defined), the City shall have the right and option, exercisable in its sole discretion, to
elect to terminate this Agreement. Upon such a termination, neither of the parties shall have
any further duties or obligations to the other hereunder, except as expressly provided for in this
Section 29.
For purposes hereof, an"Adverse Event" means the occurrence of any event or
circumstance which has the effect of making ar causing this Agreement (or any material
�
provision hereo fl to be in violation of any federal, state or local law, statute, ordinance,
regulation or judicial decision applicable to the City and/or its ownership of the Capitol Theatre
Facility or materially affecting a party's ability to perform their obligations hereunder. By way
of example, and not by way of limitation, Adverse Event includes the following: (i) the
enactment of any legislation or law that causes this Agreement (or any material provision
hereo� to be illegal or unenforceable; (ii) the entry of a final ruling, order or other binding
determination by a court that this Agreement (or any material provision hereo fl is illegal or
unenforceable; or (iu) the revocation of REH's status as an organization exempt from federal
income taxes, voluntarily or involuntarily, which status is not reinstated within thirty (30) days.
If the City terminates this Agreement pursuant to this Section 29, then REH shall
immediately provide the City with copies of all of the Plans and will assign to the City all of its
assignable interest in all of the Permits upon written request therefore.
If the Adverse Event giving rise to the City's election to terminate this Agreement
pursuant to this Section 29 is the result of the negligence, willful misconduct or unlawful act of
REH, then REH shall defend, fully indemnify and hold the City harmless from and against all
losses, costs, liabilities and claims of any nature whatsoever arising out of such Adverse Event
and termination, including (without limitation) attorneys' fees and costs of appeals.
30. Termination.
(a) With Cause/Cure. The City Manager (subject to City Council
Approval) or REH may terminate this Agreement for cause if the other party shall
materially breach any term or condition of this Agreement and not cure such breach within
thirty (30) days following notice specifying the breach. Without limiting the generality of
the foregoing, each of the following shall constitute a material breach of this Agreement:
(1) If REH fails to submit any Submittal required pursuant to this
Agreement which is in substance and form acceptable to the City Manager or City
Council, as applicable, on or before the time stated in this Agreement or otherwise
Approved by the City Manager; or
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(2) If REH substantially deviates from the Management Plan without
City Manager Approval; or
(3) If REH fails to meet any performance measures, as such
performance measures may be adjusted pursuant to Section 7(e).
(b) With Cause/No Cure. The City Manager (subject to City Council
Approval) may terminate this Agreement for cause with no right of REH to cure, for material
misrepresentation, theft, criminal misconduct amounting to a felony, gross negligence,
willful or wanton misconduct, fraud, or breach of fiduciary responsibility. Notwithstanding
the foregoing, the City Manager may grant REH a period to cure a breach of one the above-
referenced paragraphs if the City Manager determines a cure period is reasonable under the
circumstances, in which case REH shall cure the breach within the period established by
the City Manager. If the City Manager establishes a cure period as provided above and REH
does not cure the breach within such period, the City Manager (subject to City Council
Approval) may terminate this Agreement.
(c) City Council Confirmation. The City Manager shall obtain City Council
Approval prior to terminating this Agreement.
31. Obligations Upon Termination Or Expiration. Upon expiration or earlier
Termination of this Agreement, REH shall:
(a) Vacate. REH shall vacate the Capitol Theatre Facility.
(b) Inventorv. REH shall provide a complete reconciliation of the Capitol
Theatre Inventory and status report on the condition of the Capitol Theatre Facility.
(c) Surrender of Records Accounts and Pro�ertv. Except as provided
below, REH shall peaceably surrender and transfer to the City, even though property of the
City, all books, recards, reports, and documents (including but not limited to all contracts,
subcontracts, accounting and financial records, booking business records, marketing
databases, ticket sales databases, and box office databases), and all property, tangible or
intangible, used in the operation of the Capitol Theatre Facility or purchased or leased as a
Cost of Operation or Maintenance, which constitutes Capitol Theatre Inventory. REH shall
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not be required to surrender or transfer to the City any corporate manuals or materials of
REH that are not developed specifically for the operation of the Capitol Theatre Facility.
32. Com�liance. REH shall use reasonable efforts to comply with and observe, and
this agreement shall be subject, to any and all relevant laws, resolutions, rules, regulations and
orders of the City and of all governmental and regulatory bodies.
33. Ownershiv of Propertv.
(a) Ownership of the real property and improvements made thereto
constituting the Capitol Theatre Facility, and fixtures, furnishing and equipment necessary to
the operation of the Capitol Theatre Facility placed thereon shall remain with the City. REH
shall prepare and deliver to the City Manager a complete inventory of such property (the
"Capitol Theatre Inventory") as of the completion of the Capitol Theatre Project, and shall
update such inventory lists not less frequently that each Fiscal Year quarter.
(b) Any and all intangible personal property, cash, objects or articles of art or
other personal property, acquired by, or donated to REH which are not necessary for the
operation of the Ca�pitol Theatre Facility shall be and become the sole property of REH. Objects
of art and other personal property may be placed in the Capitol Theatre by REH, or REH may
display such property it receives on loan. Such property shall remain the property of REH, or if
on loan or under another agreement, shall remain the property of the parties providing the
same to REH, and shall not become the property of the City, during the term of this Agreement,
or upon any termination hereof.
34. Ins�ection. City shall have the right to enter upon the Capitol Theatre Facility,
upon reasonable prior notice at mutually agreeable times, far the purpose of inspecting the
same, preventing waste, or other reasonable purposes, and for the purpose of making such
repairs to the Capitol Theatre Facility as the City may desire, understanding that this clause
shall in no way be deemed to require the City to make any repairs to the facilities.
35. Neg�tion of A e�nt/Em�loyee Status. REH shall perform this agreement as an
independent contractor and nothing contained herein shall in any way be construed to
constitute REH as representatives, agents, subagents, or employees of the City. In no event and
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under no circumstances shall any provision of this agreement make City or any political
subdivision of the State of Florida liable to any person or entity that contracts with or that
provides goods ar services to REH in connection with REH has agreed to perform hereunder.
REH shall be solely responsible for and shall be the contracting party with the intended risk of
loss with respect to any and all operations, directly or indirectly, related to the Capitol Theatre
carried out on the Premises, including but not limited to all theatrical productions, stage events,
food and beverage, merchandise, souvenirs, parking, video and audio production activities, all
cultural and theatrical productions, or other activities performed hereunder.
36. No Landlord-Tenant Relationshiv. No provision of this agreement is intended
by the parties to constitute or be construed as creating a landlord-tenant relationship between
City and REH. REH shall not receive any property interest in the Capitol Theatre Facility under
and pursuant to this Agreement, but rather REH is solely receiving the contractual right to
operate the Capitol Theatre Facility on behalf of City subject to the provisions of this Agreement
and to undertake and oversee the construction, renovation and repair of the Capitol Theatre
Facility as contemplated by this Agreement.
37. Charitable Su�ort. The City is aware that REH annually raises substantial
funds through charitable donations to support operations, capital campaigns which would
include, without limitation, campaigns to raise funding for modernization, maintenance, repair,
or expansion, and to further endow the arts. Such fund-raising is most important to the success
of REH, and incident thereto REH offers recognition to donors at various levels. The City
hereby authorizes REH, incident to such fund-raising activities, to afford naming opportunities
to donors, involving the identification of donors or contributars by placing signage or signs,
plaques or other visual and permanent identification of donors or contributors to REH, its
operations, facilities, programs, endowment or other support.
38. Cit,y Council. Nothing contained in this Agreement shall be deemed in any
manner to amend, modify or otherwise change any of the provisions of the regulations or
ordinances of the City or any other governmental agency or allow a performance standard
less than is otherwise required under the terms of those regulations and ordinances. Nothing
— 42—
contained in this Agreement shall be deemed to limit in any manner whatsoever, the right of
City Council, now or in the future, to amend development regulations, the Community
Redevelopment Plan, building codes, zoning codes, the comprehensive plan, or land use
plans. Nothing in this Agreement shall in any way preclude City Council from enacting
ordinances for the protection of the public health, safety and welfare in a manner that it
could otherwise do if this Agreement was not in existence.
39. Turisdiction and Venue.
(a) iurisdiction. Each party to this Agreement hereby submits to the
jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the
jurisdiction of the United States District Court for the Middle District of Florida, for the
purposes of any suit, action or other proceeding arising out of or relating to this Agreement.
(b) Re�stered A�ent/Secretary of State. REH shall maintain a registered
agent for service of process upon REH in the State of Florida. If at any time REH is not a
legal entity authorized to do business in the State of Florida or, in violation of this
Agreement, has no registered agent for service of process in the State of Florida, and, if
personal service is required beyond the State of Florida and cannot, after reasonable
diligence, be effected by other means, REH hereby designates, to the extent permitted by
applicable Laws, the Secretary of State of Florida as its agent for service of process in any
court proceeding between it and the City arising out of or related to this Agreement, and
such service shall be made as provided by the Laws of the State of Florida for service upon a
nonresident.
(c) Venue. Venue for any action brought in state court shall be in
Pinellas County, Clearwater Division. 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 St.
Petersburg or Pinellas County, in which case the action shall be brought in that division.
40. Relationship of Parties. It is mutually understood and agreed that REH is an
independent contractor and nothing contained in this Agreement shall be construed in any
manner or under any circumstances whatsoever within the meaning of Article VII, Section
— 43—
10 of the Florida Constitution and applicable case law as creating the relationship of co-
partners or joint owners between the City and REH, or creating the relationship of a joint
venture between the City and REH, or creating the relationship of landlord and tenant
between the City and REH, or making the City a stockholder of REH. Nothing contained
in this Agreement shall be construed as constituting REH as the agent of the City for any
purpose in any manner whatsoever, except as otherwise specifically set forth in this
Agreement. This Agreement shall not be construed to constitute or authorize a lending of the
City's taxing power or credit to REH in violation of Article VII, Section 10 of the Florida
Constitution and applicable Laws.
41. Miscellaneous:
(a) Successors and Assi�ns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(b) REH's Obligation for Expenses. It is the intent di this Agreement that it
will be REH's obligation (subject to the provisions in Sections 6 and �, with REH paying any
and all costs, expenses, charges, taxes, maintenance, repair, insurance, premiums or other
charges or impositions necessary to maintain the facilities in a good state of repair, in
accordance with the terms and provisions of this Agreement.
(c) Entire Agreement. This Agreement, including all exhibits hereto and
documents incorporated herein by reference, constitutes the complete and final expression of
the agreement of the Parties and the same supersedes and controls any and all prior
agreements, understandings, representations, and statements, whether written or oral.
Except as otherwise provided in this Agreement, no amendments to this Agreement ar any
other agreement contemplated hereunder shall be enforceable or effective unless in writing
and duly executed by the Parties.
(d) Amendments. No change, modification or termination of any of the
terms, provisions or conditions of this agreement shall be effective unless made in writing and
signed by all parties hereto.
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(e) Governin� Law. The laws of the State of Florida shall govern the
interpretation, validity, performance and enfarceability of this Agreement, without regard to
the conflict of law principles thereof.
(f) Severabilitv. Should any paragraph or portion of any paragraph of
this Agreement be rendered void, invalid or unenforceable by any court of law for any
reason, such determination shall not render void, invalid or unenforceable any other
paragraph or portion of this Agreement.
(g) Binding Effect. This agreement shall be binding upon, and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
(h) Remedies. All remedies shall be cumulative and not alternative.
(i) No Third Party Beneficiary. Persons not a party to this Agreement
may not claim any benefit hereunder or as third party beneficiaries hereto.
(j) Captions. Captions are for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Agreement.
fRemainder of page left intentionally blank- signature pages to follow]
- 45-
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
Witness - Print Name
Countersigned:
-_ �r k�, Q/� Cr .�� I4�5
1 �
George N. Cretekos
Mayor
Approved to form:
Pamela K. Akin
City Attorney
RUTH ECKERD HALL, INC., a Florida
non-profit corporation
-,,,�,:�.
�` '��
By: __ _�____��
Name: � v '� V ' ./''�
Title: .�-S �� �
CITY OF CLEARWATER, FLORIDA
Ey� �C,��i:�.� � . J�A.�►���
William B. Horne II
City Manager
— 46—
EXHIBIT "A-1"
CAPITOL THEATRE FACILITY
The real property and improvements thereon located at 401, 403 and 409 Cleveland
Street, Clearwater, Florida.
CAPITOL THEATRE PROJECT
Scope of Project:
Remodel the existing Capitol Theatre and expand the "back stage" area into the current
alley area; reconstruct the existing 2 story building, at #401 Cleveland St., currently referred to
as the Lokey Building. Demolish the existing one story retail building to the east, #409, and
replace with a new two story Theatre support facility.
The Theatre remodeling will include all new plumbing, mechanical, and electrical
systems, new seating of approximately 680-750 seats, new theater rigging and sound systems.
The two story expansion to the south will house stage equipment on the ground floor and
Chorus/Dressing rooms for both men and women on the second level, and a loading dock.
The #401 reconstruction will include the Main Lobby with concessions, Men's
restrooms, elevator service, and theatre offices on the ground floor. The second floor will
provide space for the V.I.P. Lounge, Men's and Women' restrooms, and the Star's dressing
room, and access to the Roof Top Terrace.
Also included at the #401 reconstruction will be the introduction of a new "Roof Top
Terrace"; a gathering area for intermissions, and special events.
The new two story construction at #409 will include the Ticket Booth, Box Office
Manager's office, Women's Rest Room facility, a companion rest room, catering kitchen, crew
lavatory, usher's room, and janitor room. The second floor will house additional concessions,
Men's and Women's Rest Rooms, theater offices, a control room for the new sound and lighting
equipment as well as access to the new rigging platform.
Overall areas:
Total: .....................................................................................
Major Areas:
Lobby: .............................................................................
Stage:...............................................................................
DressingRooms :.............................................................
RoofTop Terrace :...........................................................
..19,928 s.f.
Orchestra seating :.............................................................
Balcony and Loge Seating : ..............................................
Exhibit A-1
...1,940 s.f.
...1,950 s.f.
......953 s.f.
...1,825 s.f.
......575 (approx.)
......178 (approx.)
----
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LEGEND:
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"Exhibit A-3"
location•
The surface parking lot serving the Pinellas County Utilities Building located at 15 S. Osceola Avenue,
including relocation of the east-west alley adjacent to the facility and parking lot expansion into the 150
northernmost feet of the north-south alley bisecting the parking lot.
Proiect scope:
The work will consist of reconstruction of the Pinellas County Utilities Building parking lot. Included are:
east-west alley relocation; demolition of existing curbs and landscaping; construction of new landscape
planters, curbing, lighting, entry gates, tree feeders, wheel stops, and striping; and a new one inch
asphalt overlay.
Exhibit A-3
EXHIBIT "B"
PERFORMANCE STANDARDS
The following Performance Standards shall be instituted to ensure the continued compliance of
REH with the requirements set forth in the Capitol Theatre Operating Agreement. These
standards must be met at a level consistent with that of similarly-sized performance venues
including, but not limited to the Olympia Theatre at Gusman Center for the Performing Arts
(Miami), the Colony Theatre (Miami Beach), the Filmore Jackie Gleason Theater (Miami Beach),
and the Tampa Theatre.
(a) Performance Rec�uirements: REH shall be responsible for the preparation,
production and/or public presentation and/or public exhibition of dramatic and musical-
dramatic works, dance, motion pictures, television, music, recordings and works of fine, visual
or performing arts. There will be at least one hundred (100) events at the Capitol Theatre
annually. Of these one hundred (100) events, there will be a minimum of seventy-five (75) live
self presented productions or exhibitions of dramatic or musical-dramatic works, dance and/or
music.
(b) Resource Standards: REH agrees to provide sufficient staffing and budgetary
resources to fulfill the minimum performance requirements stated above.
(c) Maintenance Standards: REH agrees to maintain the facility on the Premises in a
clean and orderly condition, in compliance with all applicable Legal Requirements and in first
class condition and up to first class performing arts venue standards at the time of reference.
(d) Marketin� Standards: REH agrees to provide marketing and promotional plans
consistent with the exhibition and production of similar performances in other local comparable
venues. The City acknowledges that event promoters are primarily responsible for the
marketing of their own events and that the role of REH is to assist event promoters and to
utilize the resources that are available far this purpose (e.g., Capitol Theatre website).
I: _