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PARTNERSHIP AND OPERATIONAL SUPPORT AGREEMENT TO PRODUCE AN ANNUAL SUMMER COMMUNITY THEATER MUSICAL PRODUCTION AGREEMENT This Partnership and Operational Support Agreement is made and entered into between the City of Clearwater, whose address is: Attn: Parks and Recreation Director, Post Office Box 4748, Clearwater, FL 33758-4748, hereinafter referred to as the "City", and City Players, Inc., whose address is: 201 Leeward Island, Clearwater, FL 33767, hereafter referred to as "City Players". WHEREAS, it has been determined to be highly desirable and socially responsible to provide activities to build and foster the confidence, educational, cultural and social skills and good habits in young people, adults and families; and WHEREAS, the City desires to provide access to Ruth Eckerd Hall for a community theater musical; and WHEREAS, the City has recognized the need for community cultural programs as outlined in the Clearwater Cultural Plan and supported by the Parks and Recreation Master Plan; and WHEREAS, City Players is an organized cultural group and program approved by the Parks and Recreation Director, which provides its own volunteer leadership and administration; and WHEREAS, the City recognizes City Players as providing a valuable service to the community, through their extensive use of volunteers and volunteer resources; and WHEREAS, City Players desires to use various City-owned facilities and resources for cultural related activities for the citizens of Clearwater; and WHEREAS, the City owns certain public properties and facilities that are available to be utilized by City Players for their programs; and NOW, THEREFORE, the parties agree as follows: ARTICLE I. TERM The term of this Agreement shall be for a period of 5 years, commencing on the 4th day of May 2006 ("Effective Date") and continuing through the 3rd day of May 2011 ("Termination Date") unless earlier terminated under the terms of this Agreement. ARTICLE II. RESPONSIBILITIES OF CITY PLAYERS 1. Services to be Provided: City Players shall produce an annual summer community theater musical production at Ruth Eckerd Hall. Page 1 of8 2. City Players agrees to provide leadership for the summer production. City Players shall provide for the representation of a City resident on its Board of Trustees by having at least one Board member who is a City of Clearwater resident. 3. City Players agrees to select shows that are family oriented, in good taste and represent the morals of the community. The show selection must be approved by the Cultural Affairs Division of the City of Clearwater. 4. City Players agrees to submit the following information as indicated: a) A written request for the scheduling of any City owned or operated facility to be used for rehearsals, meetings, performances, workshops or other events relating to the annual summer musical- Initial Date due: May 1,2006 and annually thereafter; b) An annual report related to the annual summer musical(s) which is/are the subject of this Agreement with a corresponding financial statement - Due date: Within the later of three weeks after the summer musical performances end OR within one week after the reconciliation with Ruth Eckerd Hall is complete. c) Copy of By-Laws and Articles oflncorporation - Date due: Within two weeks after City Players has signed this Agreement. City Players represents that it is a validly existing corporation at the inception of this Agreement. d) A copy of an insurance certificate naming the City of Clearwater as additionally insured - Date due: May 1, 2006, and annually thereafter. e) Selection ofthe proposed summer musical- Date due: By March 1 of each year in which this Agreement is in effect. 1) A copy of the summer musical budget: Date due: May 1, 2006 and annually thereafter. 5. City Players will maintain a positive relationship with the City when occupying or using City facilities for the summer musical by: a) Obtaining prior approval for any activities that are not on the regular practice or use schedule. b) Obtaining prior approval for any equipment or facility alterations. c) Informing Cultural Affairs staff of equipment or facility problems or schedule changes. d) Enforcing and abiding by all City laws, rules, policies and procedures. e) Providing Cultural Affairs staff with current fundraising and promotional materials for the summer musicals. 6. Maintenance of the City facilities when used by the City Players. a) Custodial Maintenance: City Players shall maintain the facilities and adjacent areas used by City Players in a clean and orderly condition. b) Repair of Damage: City Players understands and agrees that it is responsible for and will cause to be repaired at City Players' expense, and to the City's satisfaction, accidental damage to the premises as a result of their occupancy other than normal wear and tear. Page 2 of8 7. Payment of all operating expenses: Except as otherwise provided in the Agreement, City Players is responsible to pay all operating expenses associated with the production of the summer musical(s). Both parties understand that expenses related to the use of Ruth Eckerd Hall (with the exception of rental fees for which there is no charge) will be deducted from ticket sales for the annual summer musicals(s) for the year in which the expenses are incurred pursuant to an agreement dated March 7,2001 between the City and Ruth Eckerd Hall. City Players shall have full discretion in determining ticket prices. City will be provided with up to 20 complimentary tickets to use as it chooses. 8. Payment of Fees and Taxes: City Players shall obtain all required licenses at its own expense and shall pay all required taxes necessary to the City Players' operation if any apply. 9. Creation, Use and Maintenance of Financial Records: a) Creation of Records: City Players shall create and maintain financial and accounting records, books, documents, policies, practices, and procedures to reflect fully the financial activities of City Players related to the summer musical(s), which are the subject of this Agreement. Such records shall be available at all times for inspection or review by authorized City representatives and shall be otherwise disclosed in accordance with Charter 119 of the Florida Statutes and other applicable law. b) Use of Records: City Players shall produce any records identified in section 9 a) of this Agreement to authorized City representatives that may be required by the City to document the proper and prudent stewardship and use of any City facilities. c) Maintenance of Records: All records created pursuant to section 9 a) ofthis Agreement are to be retained and maintained by City Players for a period not less than three (3) years from the date of the summer production to which they relate. 10. Publicizing of City Support: City Players agree to utilize every reasonable opportunity to publicize the support received from the City. City Players further agree to supply the City up to three (3) copies of any publication developed in connection with implementation of programs addressed by this Agreement. Such publications will state that the program is supported by the City and will include the City logo. 11. Liability and Indemnification: City Players shall act as an independent contractor and agrees to assume all risks of producing the summer musical(s) at Ruth Eckerd Hall. City Players shall assume all liability, and defend, indemnify, and hold harmless the City, its officers, agents, and employees from and against any and all claims of loss, liability and damages of whatever nature, to persons and property, including without limiting the generality of the foregoing, death of any person and loss of the use of any property, up to the insurance policy limits as are indicated in section 12 of the Agreement. Notwithstanding the foregoing, City Players shall not defend, indemnify or hold harmless from the negligence or willful misconduct of the City or City's agents or employees. City Players indemnification of the City includes, but is not limited to, matters arising out of or claimed to have been caused by or in any manner related to the City Players' activities or those of any approved Page 3 of8 invitee, contractor, subcontractor, or other person approved, authorized, or permitted by City Players in or about its premises whether or not based on negligence. Further, City Players hereby acknowledges that all persons acting in furtherance of the activities provided for under this Agreement are not in any way acting in a capacity as a volunteer or representative for the City of Clearwater or Ruth Eckerd Hall. City Players will require all individuals working with City Players on the summer musical(s) to sign a release agreement substantially in the form attached here as Attachment "A". Minors must provide a Release Agreement executed by their parent or legal guardian. 12. Insurance: City Players shall procure at its expense and maintain during the term of this Agreement insurance as shown below: a) A Comprehensive General Liability Policy covering claims for injuries to persons or damage to property which arise from or in connection with use of the City facilities including the Ruth Eckerd Hall premises by City Players including all activities occurring thereon. b) A Business Automobile Liability Policy covering claims for injuries to persons or damage to property that arises from or in connection with use of a motor vehicle owned by City Players. c) Insurance procured in accordance with Sections 12 (a) and (b) shall have minimum aggregate coverage limits of $1 ,000,000. d) Each insurance policy issued as a requirement of this Agreement shall name the City of Clearwater as an additional named insured. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, agents or volunteers. The City's "Facility Use Agreement" dated March 7,2001 - Section 5 requires "any group or individual using the Facility, or part thereof, agrees to hold the City and PACT harmless for any claims resulting from their use of the Facility, and shall provide each insurance as the City or PACT might reasonably require". e) City Players shall furnish the City with Certificate(s) of Insurance with all endorsements affecting coverage required by this section by May 1, 2006. ARTICLE III. RESPONSIBILITY OF THE CITY 1. Grant of Funds: a) The City will pay to City Players a lump sum of $26,000 within ten days of the execution of this Agreement to be used by City Players for the summer 2006 musical. These funds represents the net proceeds from the 2005 summer musical. Page 4 of8 b) Commencing with the 2006 summer musical all "net proceeds" from ticket sales from Ruth Eckerd Hall for the summer musical shall be paid to City Players by the City. These net proceeds shall be used to produce the following year's production with the exception that $5,000 can be used for the existing year's production expenses incurred outside of the Ruth Eckerd Hall charges. The "net proceeds" shall be paid to City Players within the later of three weeks after the respective summer musical performances end OR within 21 days after the reconciliation with Ruth Eckerd Hall is complete. "Net proceeds" shall mean the sum of money remaining from ticket sale revenue after the reasonable Ruth Eckerd Hall charges incurred during the production have been deducted. An estimate of Ruth Eckerd Hall charges is provided by Ruth Eckerd Hall in a lease agreement executed for each production. This estimate is based on the previous year's production as well as information provided to Ruth Eckerd Hall by City Players. City Players shall be responsible for any deficit resulting from its use of the Ruth Eckerd Hall under this Agreement. Under no circumstance shall the City incur or be responsible for any expenses in excess of those specifically provided for herein. c) No additional funds will be budgeted or provided by Clearwater Parks and Recreation for City Players unless otherwise agreed to by the parties in writing. 2. Grant orIn-Kind Services: a) The City agrees to provide City Players access to Ruth Eckerd Hall to produce summer musical( s) for the citizens of Clearwater pursuant to the Agreement of March 7, 200 I between the City and Ruth Eckerd Hall. Provision ofthe facility is subject to the scheduling of availability. b) The City agrees to provide access to City recreation facilities, if available, for the purpose of auditions and rehearsals for the summer musical( s). c) The City will pay for utilities including electric, water and sewer during the rehearsal times in City facilities, with the exception of Ruth Eckerd Hall, where such utilities are subject to the Agreement of March 7, 2001 between the City and Ruth Eckerd Hall. d) The City will provide marketing support for the summer musical(s) by including information in all general publications promoting park and recreation activities; i.e. FITS (the City of Clearwater's Fun In The Sun magazine). The City will also provide professional guidance related to areas of marketing, layout, proof and design of flyers and promotional pieces for the summer musical. The City will provide these in-kind services in its sole discretion based on availability of resources, and shall not bear any costs of the marketing pieces. e) The City will provide access to its existing costume, prop, and scenery inventory for use by City Players in connection with the summer musical(s). Following the production(s) subject to this Agreement, the City will not provide storage space for any additional Page 5 of8 costumes or sets created for the production(s). The City can not guarantee that it will be able to maintain an inventory of such provisions in the future. t) The City will provide City Players with access to printing and production costs at the price levels available through the City's in-house Graphics Division. g) The City will not provide any other additional in-kind services, supplies, labor or equipment whether on loan or for consumption to City Players. 3. City Liaison: The Cultural Affairs Division of the City of Clearwater will serve as the City liaison for City Players. ARTICLE IV. DISCLAIMER OF WARRANTIES This Agreement constitutes the entire understanding between the parties on the subject hereof and may not be changed, modified, or discharged except by written amendment duly executed by both parties. No representations or warranties by either party shall be binding unless expressed herein or in a duly executed amendment hereof. ARTICLE V. TERMINATION For Cause: Upon breach of this Agreement by a party, the other party will give written notice of termination of this Agreement specifying the claimed breach and the action required to cure the breach. If the breaching party fails to cure the breach within 14 days from the receipt of said notice, then the contract will terminate 30 days from receipt of the written notice to terminate. Minimum Net Proceeds: If the net proceeds from any summer musical are less than $15,000, City Players may terminate this Agreement upon 30 days written notice. Upon any such termination by City Players, the City shall remit $5,000 of the net proceeds in accordance with Article III. 1 b) to be used to continue producing future productions similar to that contemplated hereunder. ARTICLE VI. NOTICE Any notice required or permitted to be given by the provisions ofthis Agreement shall be conclusively deemed to have been received by a party hereto on the date it is hand-delivered to such party at the address indicated below (or at such other address as such party shall specify to the other party in writing), or if sent by registered or certified mail (postage prepaid), on the fifth (5th) business day after the day on which such notice is mailed and properly addressed. 1. If to City, addressed to Parks and Recreation Director, P.O. Box 4748, Clearwater, FL 33758. With copy to: City Attorney, P.O. Box 4748, Clearwater, FL 33758. 100 S. Myrtle Avenue, Clearwater, FL 33756. Page 6 of8 2. If to City Players, addressed to City Players, Inc., c/o Patrice Pucci, Registered Agent, 2719 1 st Avenue North, St. Petersburg, FL 33713. ARTICLE VII. EFFECTIVE DATE The Effective Date of this Agreement shall be the 4th day of May 2006. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the dates indicated below. Countersigned: CITY OF CLEARWATER, FLORIDA --I~ r ~ By:~'1S.~a ~ V. Hibbard William B. Home, II Mayor City Manager Date: Date: Attest: Laur . owski Assistant City Attorney Date:_~ (0/ 2-m~ Date: CITY PLAYERS, INe. By:-~~J/~~ Print Name: -:e l C-r( 14 ~ I] J 5 c.J {7IJ As Board President Date: C{ If Z Iv b I ' Page 7 of8 ATTACHMENT "A" Waiver of Liability. Release and Indemnity You understand that City Players will undertake the production of "???" at Ruth Eckerd Hall in July 200? The production will start with auditions and casting as of mid-May to early June 200?, continue with rehearsals from ????? through ????? and end with performances on ???? at 8:00PM, ???? at 8:00PM and ???? at 2:00PM. In consideration for you having the opportunity to take part in all aspects of the production of"???" with City Players, Inc., you understand and further agree that you are not a City of Clearwater representative or volunteer and you will not hold City Players, Inc., the City of Clearwater, and/or Ruth Eckerd Hall or their directors, contractors, employees, agents, representatives, volunteers, predecessors, and successor (the "Released Parties") liable or responsible in any way for any injury, losses, claims, medical expenses, death, or other damages to you or your family, heirs, or assigns that may occur as a result of your participation in this production including travel to, from or related to this production, and including injuries which may be suffered by me before, during or after the production. Except as to intentional acts, you specifically agree to exempt and release the Released parties from all liability or responsibility whatsoever HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE, ACTION OR INACTION OF THE RELEASED PARTIES. YOU HAVE READ AND VOLUNTARILY SIGN THIS WAIVER OF LIABILITY, RELEASE AND INDEMNITY CLAUSE, and further agree that no oral representations, statements or inducements apart from the foregoing written clauses has been made. You shall indemnify the Released Parties for any claims, costs, losses, fees, penalties, interest, or damages sought on behalf of you or by any third party resulting from your involvement in the production. Page 8 of8