FIRST AMENDMENT TO AGREEMENT FOR SUPPORTING SMALL BUSINESSESFirst Amendment To
AGREEMENT
This First Amendment to Agreement for Services to Small Businesses and
Entrepreneurs ( "Agreement ") is hereby made this jS`'11 day of Zia ' ,
2017 ( "Effective Date "), by and between the Community Redevelopment Agency
of the City of Clearwater, Florida ( "CRA ") and Florida Business Incubator, Inc.
(a /k/a/ the "Provider"), (together, the "Parties ") for the purpose of supporting
small businesses as well as individuals aspiring to small business ownership.
WHEREAS, Section 163.387(6), Florida Statutes, allows for use of
moneys in the redevelopment trust fund may be expended from time to time for
undertakings of a community redevelopment agency as described in the
community redevelopment plan; and
WHEREAS, the CRA has adopted a Community Redevelopment Plan
(a /k/a Clearwater Downtown Redevelopment Plan) that establishes certain Goals
and Objectives to guide the revitalization of the Downtown and East Gateway
areas; and
WHEREAS, supporting community learning, entrepreneurship and
growing small businesses are important activities which help meet certain
Objectives established in the Community Redevelopment Plan including
Objective 1E, which states that, "A variety of businesses are encouraged to
relocate and expand in Downtown to provide a stable employment center, as well
as employment opportunities for Downtown residents "; and
WHEREAS, the Community Redevelopment Plan establishes that funds
received by the CRA through the use of Tax Increment Financing (TIF) may be
used for certain redevelopment activities; and
WHEREAS, the City has adopted an Economic Development Strategic
Plan in November 2011 that calls for the creation of a Technology District to
facilitate incentives and /or assistance to foster Information Technology
(IT) /Software Provider growth in the City's Community Redevelopment Agency
area (CRA); and
WHEREAS, the Economic Development Strategic Plan establishes as
"Goal Four: Business Development" that the city should, "support an
entrepreneurship and innovation ecosystem and collaborate with regional
partners to market Clearwater to target industries;" and
WHEREAS, the Provider is a not - for - profit Florida -based corporation that
was established to help build the local start-up and technology eco- system by
providing a first class business incubation and co- working space to support
business development in the form of business incubation and business
acceleration services; and
WHEREAS, on May 4, 2015, and May 7, 2015, the CRA and the Provider,
together with City of Clearwater, a municipal corporation of the State of Florida,
Clearwater Regional Chamber of Commerce, and Florida Small Business
Development Center (FSBDC) of Pinellas County Economic Development
entered into a Memorandum of Understanding to support collaborative and
coordinated approaches to serve pre- venture, startup and small business
enterprises in the City of Clearwater and the greater Clearwater area; and
WHEREAS, the Urban Land Institute Advisory Services Panel Report
( "ULI Report") issued September 2014 recommended the city "attract and
support new entrepreneurial small businesses by investing in a technology
innovation center or business incubator "; and
WHEREAS, in November 2014, the Provider began operating a innovation
center and incubator for technology and other businesses consistent with the
recommendations of the ULI Report; and
WHEREAS, the CRA and the Provider desire to enter into an Agreement
for the delivery of services for the period October 1, 2016 to September 30, 2017,
outlining the scope of services and responsibilities of the parties; and
NOW, THEREFORE, for and in consideration of the foregoing recitals (all
of which are hereby adopted as an integral part of this Agreement), the mutual
promises contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties agree as
follows:
1. INCORPORATION. The recitals set forth above are incorporated
herein in their entirety.
2. RESPONSIBILITIES OF THE PROVIDER.
A. Services. The Provider will provide up to one (1) Monthly
Educational Program within the boundaries of the CRA. The
Florida Business Incubator's Monthly Educational Programs
may include topics such as, but not limited to:
i. Start-up Essentials
ii. Innovation to Distribution - Product Development
iii. Legal Necessities
iv. Patents
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v. Organizational Leadership — Focus, Plan, Execute
vi. Brand Building — Vision & Strategy
vii. Marketing
viii. Sales
ix. App Design
x. Funding
xi. Entrepreneurial Accounting
xii. Strategic Staffing
A. Scope of Duties:
i. Provide meeting space appropriate for delivery of Monthly
Educational Program events
ii. Gather attendance information including names
iii. The Provider shall provide a quarterly report of service with
each applicable quarterly invoice. Said reporting shall be in
substantially the form attached hereto as Exhibit A
iv. Place Clearwater Business SPARK logo and the CRA logo
with hyperlinks on Florida Business Incubator website
v. On a quarterly basis promote Clearwater Business SPARK
via Florida Business Incubator e- newsletter /e -mail blast and
on Florida Business Incubator social media sites
vi. Promote downtown Clearwater and its Technology District
as a destination for emerging to mid -stage companies
3. RESPONSIBILITIES OF THE CRA.
A. As consideration for Provider's performance of Services under
this Agreement, the CRA will pay the Provider a fixed price,
equal to Two Thousand eighty -three and 33/100 dollars
($2,083.33) for each Monthly Educational Programs as
described in Section 2.
B. The payment will be made in quarterly payments in an amount
not to exceed Six Thousand Two Hundred Fifty and xx/100
dollars ($6,250.00) to be made after receipt of invoice and
report after January 1, 2017, April 1, 2017, July 1, 2017, and
October 1, 2017
C. Total amount for FY 2016 -2017 is not to exceed Twenty -Five
Thousand and xx/100 ($25,000)
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D. Scope of Duties:
i. Provide in -kind support in the areas of business networking,
marketing, partnering, and advocacy, as appropriate
ii. Participate and promote Provider events as appropriate
iii. Refer potential clients for the Monthly Educational Programs
as appropriate
vii. Promote downtown Clearwater and its Technology District
as a destination for emerging to mid -stage companies
4. INSURANCE REQUIREMENTS.
A. Commercial General Liability Insurance coverage, including
but not limited to, premises operations, products /completed
operations, products liability, contractual liability, advertising
injury, personal injury, death, and property damage in the
minimum amount of $1,000,000 (one million dollars) per
occurrence and $2,000,000 (two million dollars) general
aggregate.
5. Other Insurance Provisions.
A. Prior to the execution of this Agreement, and then annually
upon the anniversary date(s) of the insurance policy's renewal
date(s) for as long as this Agreement remains in effect, the
Vendor will furnish the City with a Certificate of Insurance(s)
(using appropriate ACORD certificate, SIGNED by the Issuer,
and with applicable endorsements) evidencing all of the
coverage set forth above and naming the City as an "Additional
Insured" on the Commercial General Liability Insurance. In
addition when requested in writing from the City, Vendor will
provide the City with certified copies of all applicable policies.
The address where such certificates and certified policies shall
be sent or delivered is as follows:
City of Clearwater
Attn: Community Redevelopment Agency
112 S. Osceola Ave. Clearwater, FL 33756
B. Vendor shall provide thirty (30) days written notice of any
cancellation, non - renewal, termination, material change or
reduction in coverage.
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C. Vendor's insurance as outlined above shall be primary and non-
contributory coverage for Vendor's negligence.
D. Vendor reserves the right to appoint legal counsel to provide for
the Vendor's defense, for any and all claims that may arise
related to Agreement, work performed under this Agreement, or
to Vendor's design, equipment, or service. Vendor agrees that
the City shall not be liable to reimburse Vendor for any legal
fees or costs as a result of Vendor providing its defense as
contemplated herein.
The stipulated limits of coverage above shall not be construed as a
limitation of any potential liability to the City, and City's failure to request
evidence of this insurance shall not be construed as a waiver of Vendor's
(or any contractors', subcontractors', representatives' or agents')
obligation to provide the insurance coverage specified.
6. TERMINATION OF AGREEMENT.
A. The failure of either party to comply with any material provisions
of this Agreement shall be considered a breach thereof, and
shall be cause for termination of the Agreement by giving ninety
(90) days advance written notice via U.S. Mail to the other party
of its election to terminate pursuant to this provision to the
defaulting party.
B. The funds to be used for this Agreement are subject to periodic
appropriation of funds by the CRA Board of Directors. Further,
any and all obligations under this Agreement are contingent
upon the availability of funds. If funds are not appropriated by
the CRA for any or all of the obligations in this Agreement, the
CRA shall not be obligated to pay for any Services provided
pursuant to this Agreement beyond the portion for which funds
are appropriated. The CRA agrees to promptly notify Provider in
writing of such failure of appropriation, and upon such notice,
this Agreement shall terminate without penalty to the CRA.
7. COMPLIANCE WITH LAWS. The Parties shall comply with all
applicable federal, state, and local laws, ordinances, rules and
regulations, the federal and state constitutions, and the orders and
decrees of any lawful authorities having jurisdiction over the matter at
issue (collectively, "Laws "), including but not limited to public records
laws.
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8. LIABILITY AND INDEMNIFICATION.
A. Neither the CRA nor Provider shall make any express or implied
agreements, guaranties or representations, or incur any debt, in
the name of or on behalf of the other party. Neither the CRA nor
Provider shall be obligated by or have any liability under any
agreements or representations made by the other that are not
expressly authorized hereunder. The CRA shall have no liability
or obligation for any damages to any person or property directly
or indirectly arising out of the operation by the Provider, whether
caused by Provider's negligence or willful action or failure to act.
B. Provider is not an agent of the CRA and does not represent the
City.
C. Provider shall indemnify, pay the cost of defense, including
attorney's fees, and hold harmless the CRA , their officials,
officers, employees and agent from all damages, suits, actions
or claims, including reasonable attorney's fees incurred by the
CRA, of any character brought on account of any injuries or
damages received or sustained by any person, persons, or
property, or in any way relating to or arising from the
Agreement; or on account of any act or omission, neglect or
misconduct of the Provider; or by, or on account of, any claim or
amounts recovered under the Workers' Compensation Law or of
any other laws, regulations, ordinance, order or decree; or
arising from or by reason of any actual or claimed trademark,
patent or copyright infringement or litigation based thereon;
except only such injury or damage as shall have been
occasioned by the negligence of the CRA.
D. Contractor will update the City during the course of the litigation
to timely notify the City of any issues that may involve the
independent negligence of the City that is not covered by this
indemnification.
9. DUE CRA. Each party to this Agreement represents and warrants
to the other party that: (i) it has the full right and authority and has
obtained all necessary approvals to enter into this agreement; (ii)
each person executing this Agreement on behalf of the party is
authorized to do so; and (iii) this Agreement constitutes a valid and
legally binding obligation of the party, enforceable in accordance
with its terms.
10. ASSIGNMENT. No party to this Agreement may assign any rights
or delegate any duties under this Agreement without the prior
written consent of the other party.
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11. CONTROLLING LAW. This Agreement is entered into pursuant to
the laws of the State of Florida, and shall be construed and
enforced thereunder. In the event of litigation for any alleged
breach of this Agreement, exclusive jurisdiction and venue for such
litigation shall be in the Circuit Court of the Sixth Judicial District, in
and for City of Clearwater, Florida, or the United States District
Court for the Middle District of Florida, Tampa Division. In the event
of any litigation concerning this Agreement, the parties waive all
rights to a jury trial.
12. NOTICE. Any notices required under this Agreement shall be in
writing and be addressed to the parties as shown below. Notices
shall be delivered by certified or registered first class mail or by
commercial courier service, and shall be deemed to have been
given or made as of the date received.
City of Clearwater
Community Redevelopment Agency
Attn: Seth Taylor, Director
112 S. Osceola Ave
Clearwater, FL 33756
727 - 562 -4072
Florida Business Incubator,
Inc.
Attn: Elaine Mann, Exec Dir.
1499 Gulf to Bay Blvd
Clearwater, FL 33755
727 - 342 -4757
13. FORCE MAJEURE. Notwithstanding anything contained in the Act
or this Agreement to the contrary, and subject to the terms of this
Section, the Provider failure to perform its obligations under this
Agreement, other than with respect to the payment of money or the
giving of any notice required hereunder, shall not be a default, and
no disqualification shall occur as a result thereof, if any such failure
or delay is due in whole in part to acts of God; acts of public enemy;
war; riot; sabotage; blockage; embargo; failure or inability to secure
materials, supplies or labor through ordinary sources by reason of
shortages or priority; labor strikes, lockouts or other labor or
industrial disturbance (whether or not on the part of agents or
employees of either party hereto engaged in renovation or
construction at the Facility); civil disturbance; terrorist act; fire,
flood, windstorm, hurricane, earthquake or other casualty; any law,
order, regulation or other action of any governing authority; any
action, inaction, order, ruling, moratorium, regulation, statute,
condition or other decision of any governmental agency having
jurisdiction over any portion of the Facility, over the renovation or
construction anticipated to occur thereon or over any uses thereof,
or by delays in inspections or in issuing approvals by private parties
or permits by governmental agencies; discovery of hazardous or
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toxic materials; failure of the Internet; failure of power,
telecommunication, data connectivity or other services to be
delivered to the Facility by any third party including any local utility
Provider; delays caused by any dispute resolution process; or any
cause whatsoever beyond the reasonable control (excluding
financial inability) of the party whose performance is required
hereunder, or any of its contractors or other representatives,
whether or not similar to any of the causes hereinabove stated.
14. CONFLICTING LAW; SEVERABILITY. If a Conflicting Law is
enacted after the Effective Date, then the CRA and the Provider,
shall meet and confer in good faith for a period of no less than thirty
(30) and no more than ninety (90) days to seek to effectuate an
amendment to this Agreement providing the CRA and the Provider,
with the rights and remedies intended to be provided herein.
Nothing herein shall preclude either the CRA or the Provider, from
challenging the validity of any Conflicting Law. Each provision in
this Agreement is severable. If any such provision is determined to
be invalid or illegal, the validity and enforceability of the remainder
of this Agreement shall be unaffected.
15. TERM. The term of this Agreement shall commence on the date of
last signatory hereto (the "Effective Date ") and, unless sooner
terminated, shall continue in force through September 30, 2017.
16. AMENDMENTS. This Agreement shall not be changed except by
written instrument signed by all the parties.
17. BINDING EFFECT AND EFFECTIVENESS; REPRESENTATIONS
AND WARRANTIES
A. Subject to the specific provisions of this Agreement, this
Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties and their respective successors
and assigns, notwithstanding changes in corporate or other
governance.
B. The Provider represents and warrants to the CRA that as of the
date hereof and throughout the term of this Agreement:
i. The Provider is a limited liability Provider, duly organized
under the laws of the State of Florida, maintains a place
of business within the State of Florida, and is validly
existing and is doing business in the State of Florida as
the Provider,.
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ii. The Provider has the power and authority to own its
properties and assets and to carry on its business as now
being conducted and has the power and authority to
execute and perform this Agreement;
iii. This Agreement (a) is the lawful, valid and binding
agreement of the Provider, in its limited liability name
enforceable against the Provider, in accordance with its
terms; (b) does not violate any order of any court or other
agency of government binding on the Provider„ the
charter documents of the Provider, or any provision of
any indenture, agreement or other instrument to which
the Provider, is a party; and (c) does not conflict with,
result in a breach of, or constitute an event of default, or
an event which, with notice or lapse of time, or both,
would constitute an event of default, under any material
indenture, agreement or other instrument to which the
Provider, in its limited liability Provider name is a party;
iv. The Provider, has not received written notice of any
action having been filed against the Provider, that
challenges the validity of this Agreement or the
Provider's, right and power to enter into and perform this
Agreement; and
18. AUDIT OF RECORDS. Provider shall, upon request, permit the
City to examine or audit all records and documents related to the
Agreement. Provider shall maintain all such records and documents
for at least three (3) years following termination of this Agreement.
19. NO THIRD PARTY BENEFICIARY. Persons not a party to this
Agreement may not claim any benefit hereunder or as third
party beneficiaries hereto.
20. NO CONSTRUCTION AGAINST PREPARER OF AGREEMENT.
This Agreement has been prepared by the CRA and reviewed by
the Provider and its professional advisors. Provider and the CRA
believe that this Agreement expresses their understanding and that
it should not be interpreted in favor of either Provider or the CRA or
against Provider or the CRA merely because of their efforts in
preparing it.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Parties and no change will be valid
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unless made by supplemental written agreement executed by the
Parties.
22. SEVERABILITY. 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.
23. EFFECTIVE DATE. This Agreement shall be effective on the date
of the last signatory hereto.
24. GOVERNING LAWS AND VENUE. The laws of the State if Florida shll
govern this Contract, and any action brought by either party shall lie in
Pinellas County, Florida.
25. CONDITIONS AND ASSURANCES.
A. Access to Records: Consultant agrees that Client or any of its
duly authorized representatives shall have access to any books,
documents, papers, and records of the Consultant for the
purposes of making audit, examination, excerpt, and transcripts.
B. Retention of Records: The Consultant will be required to comply
with Section 119.0701, Florida Statutes, specifically to:
a. Keep and maintain public records required by the City of
Clearwater to perform the service;
b. Upon request from the City's Custodian of Records,
provide the City of Clearwater with a copy of the
requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119 or as otherwise
provided by law;
c. Ensure that public records that are exempt or confidential
and exempt from public records disclosure requirements
are not disclosed except as authorized by law for the
duration of the contract term and following completion of
the contract if the contractor does not transfer to the City
of Clearwater; and
d. Upon completion of the contract, transfer, at no cost, to
the City of Clearwater all public records in possession of
the contractor or keep and maintain public records
required by the City of Clearwater to perform the service.
If the Consultant transfers all public records to the City of
Clearwater upon completion of the contract, the
Consultant shall destroy any duplicate public records that
are exempt or confidential and exempt from public
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records disclosure requirements. If the Consultant keeps
and maintains public records upon completion of the
contract, the Consultant shall meet all applicable
requirements for retaining public records. All records
stored electronically must be provided to the City of
Clearwater, upon request from the City of Clearwater's
Custodian of Public Records, in a format that is
compatible with the information technology systems of
the City of Clearwater.
IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS, ROSEMARIE CALL AT 727 -562-
4090, rosemarie.call@myclearwater.com, and /or 112 S. Osceola Ave.,
Clearwater, FL, 33617.
IN WITNESS WHEREOF, the City and have executed the Agreement as of
the date first above written.
Print Name el- e4-&Z. J LA-1-Z-7
Print Name: z.No LG.t\ C�
Countersigned:
cteol‘el■crt\ttoi
George N. Cretekos
Chairperson
Apprpved s to form:
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Pamela K. Akin
City Attorney
FLORIDA BUSINESS INCUBATOR, INC.
By:
Elaine Mann, Executive Director
Date: '-1 1 N l Zc 19-
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By:
Seth Taylor
Director
Attest:
Rosemarie Call
City Clerk
d�
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