VENUE LICENSE AGREEMENTVENUE LICENSE AGREEMENT
This Venue License Agreement (this "Agreement") is between the City of Clearwater,
Florida, a municipal corporation of the State of Florida (the "City") and Ruth Eckerd Hall, Inc.,
a Florida not-for-profit corporation ("Licensee" and collectively with the City, the "Parties").
BACKGROUND
The City is the owner of Coachman Park, located at 301 Drew Street in downtown
Clearwater, which the City is redeveloping to include a garden, playground, greenspace, and
gateway plaza, a 4,000 seat covered, waterfront amphitheater venue with additional lawn seating
for approximately 5,000 guests (the entirety of the Coachman Park complex, surrounding real
estate, parking areas, and improvements, the "Park"). The amphitheater, including covered
seats, stage, backstage, dressing rooms, lawn seating area, restrooms, and vendor areas, which
areas are described and depicted on attached Exhibit A, but excluding those areas outside the
blue and red fence perimeter depicted on Exhibit A, shall be referred to in this Agreement as the
"Venue." Licensee has the necessary experience in the business of providing entertainment
management services of a public venue. The City desires to license the Venue to the Licensee
and engage Licensee to provide quality venue management services for concerts and other
events, including booking and scheduling services, production, marketing services, ticketing
services and food and beverage services for the express purpose of enhancing the public use and
enjoyment of the Venue.
NOW THEREFORE, in consideration of the mutual promise and covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged the parties agree as follows:
Article I. License of Venue
1.1 License. The City hereby grants to Licensee a license (the "License"), for the
purposes set forth in this Agreement, to enter upon, use, occupy and exercise complete and
exclusive control of the Venue to use all rights of access to the Venue, and to utilize all City Assets
for each event. "City Assets" means the Venue and any furniture, fixtures, equipment, or assets
supplied by the City, including, but not limited to stage, temporary stage, floor, sound system,
lighting system, stage rigging, dressing area, stage equipment, barricade, seating, cabling,
communications and information systems equipment, and all appurtenant items owned by the City
and located at the Venue. Notwithstanding the foregoing, the parties agree as follows: (a) at all
times the City remains the owner of the City Assets; and (b) no real property interest is conveyed
to Licensee under this Agreement. Notwithstanding anything in this Agreement to the contrary,
the Licensee may perform maintenance and cleaning services at the Venue and on any City Assets,
and any maintenance, improvements, or replacements to any City Assets shall be reimbursed by
the City upon request by the Licensee.
Article II. Appointment of Licensee and Duties
2.1 Engagement of Licensee. The City hereby engages the Licensee and authorizes it
to take sole, entire, exclusive charge of operating the Venue, and City hereby agrees that it will
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not engage or assign any rights to another entity for the operation of the Venue, in whole or in part,
including but not limiting to operating and programming activities during the Term. The Licensee
hereby accepts the engagement and authorization and agrees to use its reasonable, good faith
efforts in light of market conditions and attendance patterns to secure, devise and promote live
entertainment and special events appropriate to the operation of the Venue (such events, and any
other events excluding City Events, the "Licensee Events"). Licensee will have sole administrative
and operational control over all events and activities conducted at the Venue, and sole artistic
control over Licensee Events. In addition to Licensee's own presentations, Licensee is responsible
for entering into agreements with third parties to use the facility and providing operational services
for all parties using the facility, including the City. Events shall be produced and promoted in
accordance with standard practices acceptable and common to the industry. Further, completion
of construction of the Venue and turnover to the Licensee shall be a condition precedent to the
effectiveness of any Licensee obligations hereunder.
2.2 Duties of Licensee. Licensee, at Licensee's cost, shall take such actions and
perform such duties as Licensee deems necessary and desirable for the management and operation
of the Venue, including, but not limited to the following:
(a) Brand Development. Licensee, at its own expense will engage a marketing
firm to facilitate branding and positioning of the Venue. Deliverables include development of
Venue name, logo, style guide, promotion plan and media campaign, to be mutually agreed upon
by City and Licensee in their reasonable discretion. Licensee is responsible for selection of firm,
determination of services and expense of such services. Ownership of any deliverables will transfer
to the City at the end of the renewal term.
(b) Marketing. The Licensee is responsible for advertising, marketing and
promotion of the Licensee's presentations at the Venue. Marketing services for events are
negotiated between the event organizer and Licensee, in Licensee's sole discretion. Licensee will
coordinate with the City on inclusion of Venue activities in the City's communications and
promotional efforts, except when closed to the public or prohibited by the event organizer.
Licensee reserves the right to promote its management of the Venue and events on the Licensee's
website, media channels, collateral and other public communications for the purposes of
institutional advertising, promotion, ticket sales and event services.
(c) Employment of Personnel. During the Term, the Licensee shall, at its sole
cost and expense, select, train, schedule, and employ at the Venue such number of employees, as
it deems necessary or appropriate to satisfy its responsibilities hereunder. Such employees shall
not be deemed to be employees of the City. The employees shall be subject to the sole direction of
the Licensee, who shall have authority to hire, terminate, discipline and discharge any and all
personnel working for the Licensee at the Venue.
(d) Event Bookings and Rentals. Licensee shall be solely responsible for Venue
calendar, scheduling, and event bookings. Licensee shall develop and maintain all schedules for
events held at the Venue, but the Licensee must produce a minimum of thirty-five (35) events per
year, beginning in calendar year 2024, with no maximum. Each day of a performance hosted or
arranged by the Licensee shall count as an "event" for purposes of this subsection. City Events
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shall not count toward the minimum number of events. The Parties understand and agree that
Licensee shall be empowered to negotiate all agreements and set fee schedules in a manner deemed
by Licensee to be appropriate.
(e) Property Security for Events. During preparation, occurrence, and clean-
up/tear down of any concert or live event at the Venue, Licensee may reasonably restrict access to
the Venue to patrons and other persons authorized by Licensee. Licensee shall be responsible for
hiring and supervising on-site security and public safety personnel for the Venue during events
("Onsite Security"). To the extent that City police, fire, and/or emergency medical personnel are
required, the City Manager shall notify the Licensee of the staffing level required for each event
within thirty (30) days of the Licensee providing actual notice to the City Manager of the upcoming
event. With respect to rates, the rate paid to the shall be the City's minimum "extra duty" or "off-
duty" rate established in the City's collective bargaining agreements, if applicable; if a collective
bargaining agreement is silent as to rate, the rate shall be determined by the City Manager and
communicated to the Licensee at the same time as the staffing level. The City and Licensee agree
that staffing levels will vary based on expected attendance and activity, but the parties do not
intend for City requirements to exceed customary levels or cost for venues of similar capacity.
The Licensee is strictly prohibited from holding any event at the Venue without first requesting a
security review by the City Manager or in violation of the City Manager's security determination.
(f) Cleaning for Events. The Licensee shall be responsible for providing and
supervising all cleaning services to the Venue, except as otherwise provided in this Agreement.
(g) Food and Beverage Services. Licensee shall have the exclusive right to
operate or contract for the operation of food and non-alcoholic beverage services, suite services (if
any), concession services, vending services and the service and sale of alcoholic beverages, at all
areas of the Venue. However, the Licensee shall be prohibited from serving alcoholic beverages
that compete with the Venue Sponsor's beverage products. Licensee shall comply with and
observe all federal, state, and local laws, ordinances, and regulations as to sanitation, serving hours
of alcohol, and the purity of food and beverages or otherwise relating to its operations. Any and
all profit or loss derived by said food and beverage services will be property of Licensee for any
events.
(h) Operational Services. Licensee shall direct all services required to stage
(set-up and tear -down) the Venue for each event including, without limitation, services involving
the stage area, event floor, sound system, lighting system, stage rigging, dressing area, stage
equipment, loading in and loading out. Licensee shall hire and manage all management staff,
ticket sales personnel, ushers, and other personnel required for the operation of the Venue
including; but not limited to, ticket -taking, novelty sales, program distribution and assistance to
patrons. Any expenses related to such services shall be borne by the Licensee with respect to any
Licensee Events, except to the extent the Licensee determines to charge third parties for such
expenses. Costs for such services will be borne by the City with respect to City Events as provided
in Licensee's standard usage policy, which will apply to such City Events.
(i) Negotiate with Third Parties. Licensee may exclusively negotiate,
execute, deliver and administer any and all licenses, occupancy agreements, rental agreements,
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booking commitments, catering and concession agreements, decorating agreements, supplier
agreements, service contracts and all other contracts and agreements in connection with the
entertainment management, promotion and production at the Venue, all in a manner deemed by
the Licensee to be appropriate.
(j) Parking Facility at the Venue. On days on which the Licensee is holding
or managing an event, and on any single day preceding the day on which the Licensee will hold
or manage an event, the Licensee shall staff and control the parking lot on the north side of the
Venue and depicted on Exhibit A (the "Venue Parking Lot"), and the City shall permit use by
patrons of the Venue and by the Licensee. During all other days and times, the Venue Parking
Lot shall be controlled by the City, and neither the Licensee nor the Licensee's patrons shall have
any right of access unless expressly granted by the City. The City shall, in the exercise of
reasonable discretion, design and erect signage or other markers reasonably appropriate to
facilitate the enforcement of this subsection.
(k) Pedestrian Safety and Traffic Control. Licensee will pay for public safety
personnel needed on-site at the Venue for the safety of pedestrians entering and utilizing the
Venue. Licensee will work in good faith with City to maximize opportunities to alleviate
congestion through incentivizing patrons to arrive early, communicating best routes and parking
options, and encouraging alternative transportation such as ride share, Jolley Trolley, water taxi,
etc.
(1) Compliance with Laws. In the operation of the Venue, the Licensee shall
materially comply with all laws, ordinances, and regulations applicable to it with respect to
operation of the Venue, including noise ordinances, as amended from time to time.
(m) Program Sponsorships. Licensee shall negotiate, administer, and execute
in the Licensee's name, all Program Sponsorships and shall be responsible for all expenses
associated with securing and servicing such Program Sponsorships. For purposes of this
Agreement, "Program Sponsorships" means individual gifts, foundation grants, public grants, or
other program -related and event -related donations for Licensee Events including but not limited
to individual events, presentations, educational programs, community events (provided that they
do not constitute City Events), and event series. The Licensee shall notify the City Manager at
least thirty (30) days prior to agreeing or committing a Program Sponsorship to any corporate or
business entity that has not previously been reviewed by the City Manager. The City Manager
shall, in the exercise of reasonable discretion, review the proposed Program Sponsorship for two
purposes: first, to determine whether the proposed Program Sponsor competes with any Venue
Sponsor with whom the City has an existing partnership or with whom the City is presently
negotiating; and second, to determine whether the proposed Program Sponsorship qualifies as
governmental speech, and if so, whether the message associated with or from that Program
Sponsor is incompatible with the values or message the City desires to convey at its Venue. The
Licensee may, at its sole option, make this notification informally by telephone call to the City
Manager in lieu of written or electronic correspondence. If the City Manager finds that either
conflict exists, (s)he will veto the Proposed Sponsorship by notifying the Licensee within ten (10)
days. The Licensee will decline to enter into any Program Sponsorship so vetoed. If the City
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Manager fails to respond or expressly veto the Proposed Sponsorship within ten (10) days, the
Licensee may proceed with the Program Sponsorship, in the Licensee's sole discretion.
(n) Ticketing and Customer Information. Licensee shall implement ticketing
system of its choice that will serve as the exclusive ticketing system of Venue. Licensee is
responsible for all revenues and expenses associated with ticketing system. Tickets will be
available for sale through the Licensee's regular sales channels and on-site on the day of an event.
Licensee may at its own discretion provide a temporary ticket booth and/or kiosks at the Venue.
Licensee shall determine service fees and any other ticket surcharges it wishes to and, except as
otherwise set forth herein, all income and expense derived from such tickets and fees are property
of Licensee. Event organizers may contract ticketing services according to Licensee's fee
schedule. For ticketed City Events, set-up fees will be waived with charges limited to labor and
credit card fees. Licensee is responsible and has sole custody of customer information including
but not limited to transactional history, phone numbers, email, and mailing addresses, in material
compliance with the Licensee's privacy policy and applicable law.
(o) Maintenance. Licensee shall be responsible for maintenance of all assets
owned by the Licensee and shall keep such assets in good repair, normal wear and tear excepted,
and shall report any known issues related to the Venue or any other City Assets. Licensee shall,
in consultation with the City, conduct periodic risk management inspections. If and to the extent
that any maintenance or repairs are performed on the City Assets, for or on behalf of the City,
such maintenance or repairs shall be performed in a good and workmanlike manner and in
material compliance with applicable laws. Any repairs made to City Assets for and on behalf of
the City, shall be reimbursed within thirty (30) days of written request to the City.
(p) Rules. Licensee shall establish and enforce, in its sole discretion, rules to
ensure health, safety, welfare and decorum in the use of the Venue consistent with industry
standards.
(q) Licensee Asset. The Licensee shall provide assets of the classes set forth
on Exhibit B, and may provide certain other assets it deems necessary or convenient in the
operation of the Venue (the "Licensee Assets").
(r) Venue Management. Licensee retains exclusive use of the Venue and
Licensee Assets and therefore, shall exclusively provide any food and beverage, operational, and
ticketing services, for all events, including City Events, unless otherwise agreed by the Parties.
(s) Sustainability measures. The Licensee shall, in consultation with the
City's sustainability coordinator or other designated City employee, and in the exercise of
reasonable discretion, develop a sustainability plan to ensure that the Venue utilizes sustainable
and environmentally friendly practices. The Licensee shall report its sustainability plan to the
City Council at a public meeting within ninety (90) days of the effective date of this agreement.
Venue License Agreement
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Article III. Responsibilities of City; City Events
3.1 Initial Construction of Venue. City shall be responsible, at its sole cost and expense,
for the designing, planning, permitting, and construction of the Park, and specifically the Venue
and related improvements, which activities shall be conducted in good and workmanlike manner.
The City shall make good faith efforts to ensure that the initial construction of the Venue takes
place in a timely manner in order to ensure the ability of the Licensee to take possession with
sufficient time to install Licensee Assets prior to such date as provided in Section 3.2, below, and
conduct its first major concert, the date of which will be determined in good faith between the
Licensee and the City.
3.2 Pre -Opening Access. City shall provide adequate time for Licensee to install
Licensee Assets. Licensee will provide City with an installation timeframe by April 1, 2023, and
shall provide temporary access for installation of Licensee Assets on a date mutually agreed by
the parties, provided that such date shall be no later than June 10, 2023. It is understood that the
City is responsible for content and cost of a grand opening event, scheduled for July 4, 2023. In
keeping with Licensee's exclusivity with respect to the Venue, the City shall use Licensee for
support services for the grand opening event, including but not limited to stage operations,
concessions, and other operational services. The City shall reimburse the Licensee for any labor,
supply, and other out-of-pocket costs and expenses incurred by the Licensee in supporting the
grand opening event.
3.3 Securing the Venue. The City shall take all reasonable and necessary actions to
secure the Venue, and all portions thereof including all restrooms, the stage, and the covered
seating area, when not in use for events or preparation therefor. Such actions shall include, but not
be limited to, locking doors, fencing, and otherwise restricting access to the public as necessary
and/or reasonably requested by the Licensee to ensure the physical security of all City Assets and
Licensee Assets at the Venue.
3.4 Payments to Licensee. City covenants and agrees that it shall provide to Licensee
such sums as it is required to pay to Licensee as required under Sections 3.5 and 3.11 of this
agreement,
3.5 Venue Sponsorships and Associated Benefits. The City shall negotiate, administer,
and execute in the City's name, all Venue Sponsorships and Park Sponsorships. For purposes of
this Agreement, "Venue Sponsorships" means sponsorships for naming rights for the Venue and
any portion thereof, including suites, sections, concession areas, etc., pouring rights, and any other
sponsorship associated with the physical Venue and fixed infrastructure to the extent owned by
the City. The City shall engage a professional third -party sponsorship marketing entity to source
such Venue Sponsorships and Park Sponsorships with proceeds remitted to the City. The City and
any sponsors shall work in good faith with the Licensee in the negotiation, administration and
execution of any Venue Sponsorships or Park Sponsorships. The benefits available to the Venue
Sponsor, and compensation owed to the Licensee, shall be governed by the following terms:
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(a) The Venue Sponsor shall receive ten (10) tickets to each Licensee event, for
the Venue Sponsor's sole use. These ten (10) tickets shall be located in the front section or highest
price section of Venue seating, as determined by the Licensee in the exercise of reasonable
discretion.
(b) In return for providing these tickets to the Venue Sponsor, the Licensee shall
be compensated in an amount equaling the base printed value of each ticket, prior to or without
considering or adding any surcharges, donations, or fees.
(c) In addition, each of these ten (10) tickets shall guarantee access at each
event to the Premium Area located adjacent to the stage, and depicted on Exhibit "D" of this
agreement, unless the Licensee has rented the Premium Area for the exclusive use by one party or
one legal entity. Each time the Licensee rents the Premium Area for the exclusive use by one party
or one legal entity for a particular event, the Licensee shall promptly notify the City and the Venue
Sponsor.
(d) If the Venue Sponsor or Park Sponsor requests food and beverage or other
services, the Licensee shall use best efforts to accommodate the request. To the extent that the
request is accommodated, the Licensee shall be compensated at commercially reasonable rates.
(e) As to all compensation owed to the Licensee under this Section 3.5, the City
will either, depending on its contractual relationship with its sponsor, compensate the Licensee or
require the sponsor to compensate the Licensee. In either circumstance, the Licensee shall be
compensated within sixty (60) days of providing a detailed invoice with pricing that aligns with
the provisions of this Section 3.5.
(0 Subject to ticket availability, the Licensee shall afford the Venue Sponsor
an opportunity to purchase additional tickets, beyond the ten (10) tickets described in this section.
The timing of this opportunity shall coincide with a pre -sale period determined by the Licensee,
in the exercise of reasonable discretion. Any additional tickets purchased by the Venue Sponsor
pursuant to this provision shall be paid by the Venue Sponsor at full retail price, including any
fees, surcharges, and taxes that would normally be assessed to any other retail purchaser.
3.6 Pedestrian Safety and Traffic Control. The City shall be responsible for any
personnel deemed necessary for pedestrian safety and traffic control in the areas surrounding the
Venue, including Coachman Park and downtown Clearwater.
3.7 Parking. City will permit the Licensee to use and manage the Venue Parking Lot
and traffic accessing the backstage area at any time on a day in which an event being operated or
managed by the Licensee is being held at the Venue, along with the day immediately preceding
the day of the event. In acknowledgment of contractual obligations with tours and certain artists,
the City will allow Licensee to reserve and utilize, free of charge, that portion on the south side of
the west end of Drew Street, between the entrances to the Coachman Park Fishing Pier and the
Waterfront Pier to accommodate, to park, secure, and provide power to tour buses and designated
vehicles. City agrees to work with Licensee to close certain portions of Drew Street to traffic on
show days, and on other days upon reasonable request of the Licensee for activities in support of
any events. However, any closure of Drew Street's westbound lanes shall be accomplished in a
Venue License Agreement Page 17
way that maintains a vehicle movement lane to accommodate emergency ingress to and egress
from nearby properties.
3.8 City Assets and Maintenance.
(a) City shall supply and install all City Assets and any other equipment,
furnishings and expendables required to operate the Venue other than the Licensee Assets;
provided that Licensee may supply or install certain equipment, furnishings, or expendables for
and on behalf of the City upon the City's request and at the City's sole cost and expense.
(b) City shall be responsible for repair, replacement, or alteration of City
Assets, including but not limited to conditions related to equipment or structure failure, change in
code requirements, recalls, fire safety, hurricane and emergency procedures, and conservation.
City shall be responsible for landscape maintenance of the Venue in conjunction with the Park.
City shall also ensure adequate services to maintain Coachman Park, more broadly, as a first-class
municipal park.
(c) The City shall pay for, perform, direct and supervise any capital equipment
and capital improvement purchases, repairs and maintenance to the extent provided by the City
and will ensure any and all such repairs and maintenance obligations are performed in a good and
workmanlike manner, in material compliance with applicable laws, and are performed on schedule
and in a manner to ensure that the Venue remains a first-class Venue.
(d) The City has the right to enter all portions of the Venue to conduct
inspections of its assets, perform its maintenance obligations, or otherwise carry out its rights under
this Agreement; provided, however, that the City shall provide reasonable advance notice to the
Licensee prior to entry upon the Venue and shall perform its obligations with minimal interference
with or disruption to any Licensee Events or the Licensee's work under this Agreement, generally.
3.9 Signage. All permanent signage, including wayfinding signage, interior, exterior,
and other permanent signs at the Venue and in Coachman Park shall be provided and maintained
in good condition by the City. Notwithstanding the foregoing, the City shall work in collaboration
with and in good faith with the Licensee to design the signage for the Venue.
3.10 Maintenance Fund. The City shall, on or before the Commencement Date,
establish and maintain a separate account from the City's general fund of [$100,000.00],
earmarked specifically and exclusively for the maintenance, repairs and replacement of City
Assets as needed at the Venue. The Maintenance Fund will be replenished by the ticket rebate
discussed in Section 5.1, below.
3.11 City Events. The City shall have the right to use the Venue, or any portion thereof,
for governmental purposes hosted by the City or staffed by City personnel, without payment of
any rental or usage fees, on July 4, July 5, and up to ten (10) additional dates per calendar year
during the Term (such events, "City Events"). For any City Event occurring on or before July 1,
2024, the City shall provide at least one hundred and twenty (120) days' notice to the Licensee
prior to scheduling the City Event. For any City Event occurring after July 1, 2024, the City shall
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provide at least three hundred and sixty-five (365) days' notice prior to scheduling the event. If
the City provides proper notice, the City shall have the right to schedule the City Event on the
day(s) indicated, unless the Licensee has a letter of agreement arranging a guaranteed
performance, show, or event on that date. For the avoidance of doubt, a temporary "hold" shall
not be considered a letter of agreement or scheduling conflict for purposes of this section. Any
unused City Events shall expire at the end of each calendar year and shall not be subject to rolling
forward to the next calendar year if unused. The City or organizer of the City Event shall use
Licensee for support services, including but not limited to stage operations, concessions, and
other operational services; provided, however, that the City shall not be obligated to use Licensee
if the City Event does not require a professional event manager, as determined in the reasonable
discretion of the City Manager. The City shall reimburse the Licensee for any hourly labor,
supplies, catering, and other documented out of pocket costs and expenses incurred by the
Licensee in connection with a City Event, such reimbursement without markup or profit, and
which reimbursement shall be due and payable upon receipt of a reasonably detailed invoice from
Licensee documenting each cost for which reimbursement is sought. The City shall act in good
faith to avoid scheduling a City Event promoted by a person or entity that competes with the
Licensee, unless agreed by the Licensee that such event would not be a conflict.
3.12 Additional Events. Licensee will reserve the traditional dates for Ja77 Holiday
festival on an annual basis, contingent upon mutually agreeable terms between Licensee and the
event organizer. In addition, the Licensee will use reasonable efforts to work with other third
parties to organize certain community events on mutually agreeable terms. Remuneration and
contracting for Ja.77 Holiday and these additional events shall be separately negotiated between
the Licensee and the entity hosting the event. Such events may, in the sole discretion of the
Licensee, be subject to rental and/or usage fees, and shall not occur without an agreement
acceptable to the Licensee. For the avoidance of doubt, the City shall not be responsible for any
payment to Licensee in support of any such third -party events unless it expressly agrees
otherwise.
Article IV. Term
4.1 Term. Unless terminated earlier pursuant to the terms and conditions of this
Agreement, the initial term of this Agreement shall begin on the date hereof and shall continue for
a period of five (5) years from the Commencement Date unless earlier terminated pursuant to the
terms of this Agreement (the "Initial Term"). Provided that the Licensee is not then in default, the
Agreement will automatically renew for four (4) successive five (5) year periods thereafter (each,
a "Renewal Term," and the Initial Term and all Renewal Terms, collectively, the "Tenn") unless
written notice of election not to renew is given (a) if by the City, no less than twelve (12) months
prior to the expiration of the Initial Term or the then -current Renewal Term, as the case may be,
or (b) if by the Licensee, no less than six (6) months prior to the expiration of the Initial Term or
the then -current Renewal Term, as the case may be. For purposes hereof, the term
"Commencement Date" means the date that the Licensee takes possession and control of the Venue
following completion of construction, which the parties intend to be on or before August 1, 2023.
4.2 Early Termination. This Agreement may be terminated early, consistent with the
provisions listed below.
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(a) For Convenience. The City may terminate this Agreement on thirty (30)
days' prior written notice for any reason upon approval of the Clearwater City Council at a duly
constituted City Council meeting. The City shall provide Licensee no less than thirty (30) calendar
days' written notice of the meeting of City Council to determine termination of the Agreement.
The Licensee may terminate the Agreement upon six (6) months prior notice to the City for any
reason or no reason. Notwithstanding anything to the contrary in this Agreement, in the event the
City terminates this Agreement for convenience, the City is prohibited from self -promoting or
entering into a booking agreement, entertainment management agreement, or any like agreement
with an outside company to promote the events booked for the Venue by the Licensee prior to
termination of this Agreement.
(b) For Cause. The non -defaulting party may terminate the Agreement upon
determination in good faith by the non -defaulting party that there was a material breach of the
Agreement that remained uncured following notice and opportunity to cure as provided in the
Terms and Conditions attached hereto as Exhibit C, and the termination will be deemed effective
immediately, or upon such other date as specified in a notice of termination, provided that
termination shall have been approved by the Clearwater City Council at a duly constituted City
Council meeting following failure to cure such material breach by the Licensee, with written notice
of such City Council meeting being provided to the Licensee no less than thirty (30) days prior
thereto.
4.3 Surrender; Effect of Termination. Upon termination of this Agreement,
permission to use the City Assets, including the Venue, shall be revoked. Thereafter, the Licensee
shall promptly vacate and surrender to the City the Venue and any City Assets contained therein.
In any event, such surrender shall be complete thirty (30) days following effective date of
termination.
(a) Licensee Assets. The Licensee shall remove any Licensee Assets it
determines, in its sole discretion, to retain and make any repairs necessitated by such removal
within the period set forth herein. Understanding that Licensee will continue to invest in and
replace assets throughout the Term to maintain a first-class venue, upon termination or non-
renewal, City will purchase Licensee Assets that the Licensee determines to leave at the Venue
for the benefit of the City for the Asset Value. Licensee will submit a depreciation schedule of
Licensee Assets to the City annually. The "Asset Value" for Licensee Assets, at separation, shall
be determined as the undepreciated amount of original purchase price set forth on the most recent
depreciation schedule, or if fully depreciated, will be $10.
(b) Expenses. Upon termination for any reason, City shall pay Licensee for
any services performed prior to the effective date of such termination, and any costs and
authorized expenses incurred through the effective date of such termination or necessitated by
the termination.
(c) Event Cancellations. Upon termination by the City, and in addition to the
above, the City shall reimburse the Licensee for any Non -Recoverable Event Expenses. For
purposes hereof, "Non -Recoverable Event Expenses" means any costs or expenses incurred by
Venue License Agreement Page 1 10
the Licensee as a result of relocating or cancelling a Scheduled Event, including but not limited
to forfeited deposits, penalties, marketing expenditures, and transaction fees. The term
"Scheduled Event" means an event scheduled to occur at the Venue during the notice period and
within eighteen (18) months of the effective date of termination for which the Licensee has sold
tickets to patrons or entered into a written or oral agreement for the event.
(d) Liquidated Damages. In light of the difficulties in estimating the damages
for an early termination of the Licensee under this Agreement without appropriate notice, the
City and the Licensee hereby agree that if the City terminates the Licensee for convenience with
less than twelve (12) months' prior written notice, then the following liquidated damages shall
apply in addition to the provisions above, which liquidated damages the parties agree are
reasonable and intended as just compensation and not as a penalty or method to secure
performance:
(i) Termination with less than six (6) months' notice. If the City
terminates this Agreement with less than six (6) months' notice, then the City shall pay the
Licensee an amount equal to One Million Five Hundred Thousand Dollars
($1,500,000.00);
(ii) Termination with less than twelve (12) but equal to or more than six
(6) months' notice. If the City terminates this Agreement with less than twelve (12) months'
notice, but equal to or greater than six (6) months' notice, then the City shall pay the
Licensee an amount equal to One Million Dollars ($1,000,000.00).
Article V. Compensation Matters
5.1 Ticketing; City Rebate. All revenue and/or expense derived from tickets and fees
are property of Licensee; provided, however, that the Licensee shall remit to the City a rebate
with dollar values dependent upon the ticket price, as follows, to be paid to City within thirty (30)
days following the end of each calendar quarter during which the event actually occurs: (a) for
tickets actually sold with a selling price of more than $10.00, the Licensee shall remit to the City
a rebate of $5.00 per ticket sold, of which $4.00 shall be paid to the City's general account, and
$1.00 shall be paid to the Maintenance Fund; (b) for tickets actually sold with a selling price of
$10.00 or less, the Licensee shall remit to the City a rebate of $2.00 per ticket sold, of which
$1.00 shall be paid to the City's general account, and $1.00 shall be paid to the Maintenance
Fund; and (c) for free or complimentary tickets, excluding complimentary tickets provided to the
City, the Licensee shall pay to the City $1.00 per such ticket, the entirety of which shall be paid
to the Maintenance Fund. For clarity, a rebate for a ticket is only payable to the City following
the actual occurrence of the event for which the ticket was sold, and notwithstanding anything to
the contrary in this Section 5.1, no rebate whatsoever will be assessed or paid on any tickets that
were sold but later refunded or subject to chargeback.
5.2 Profit Sharing. Provided that its operations from the Venue generates at least an
eight percent (8%) profit margin to the Licensee, the Licensee shall make an annual payment to
the City, no later than one hundred twenty (120) days following the end of the prior calendar
Venue License Agreement Page 111
year, (the "Profit Share"), equal to twenty-five percent (25%) of the profits in excess of the 8%
profit margin.
5.3 City Ticket Allocation. In consideration for use of the Venue, the City will receive
six (6) tickets in the first five (5) rows of each event, plus six (6) additional tickets somewhere in
the highest price level for each event, plus twelve (12) additional tickets in a section of the
Licensee's choosing. These twenty-four (24) tickets shall be separate from and in addition to the
tickets described in Section 3.5. Each ticket described in this Section 5.3 shall entitle the
individual holding the ticket to access the Premium Area depicted in Exhibit "D," unless the
Premium Area has been rented by the Licensee for the exclusive use of a single party or legal
entity. The City will designate a liaison to the Venue for distribution of these tickets. The tickets
shall be distributed by the City, in its sole discretion, in accordance with City policy as amended
from time to time. These tickets are provided to the City in exchange for the City's use of the
Venue, and the City shall not be expected to purchase or separately remunerate the costs
associated with these twenty-four (24) tickets.
5.4 Venue Sponsorships or Park Sponsorships. Any and all revenue and/or expense
derived from any Venue Sponsorships and Park Sponsorships will be property of the City, but
the City shall reimburse or arrange for reimbursement to the Licensee for any expenses incurred
in servicing either of these sponsorships in the manner and to the extent provided in Section 3.5
of this Agreement.
5.5 City Information Rights. The Licensee will provide the City with a quarterly report
listing the aggregated number of tickets sold for all events held during the prior calendar quarter
and the number of free tickets provided, and the number of tickets refunded and chargebacks
suffered related to ticket sales during that prior quarter. In addition, the Licensee will meet with
a designee of the City on at least an annual basis each January to discuss revenues and expenses
generated from the Venue. At the annual meeting, the Licensee shall allow the City to review
and inspect sufficient financial data from the previous calendar year to confirm the calculations
and project anticipated revenue based on the distribution method contemplated by Sections 5.1
and 5.2 of this Agreement.
Article VL Insurance
6.1 Survival; Limitations. The obligations of the Parties under Section 6 shall survive
the expiration or termination of this Agreement. Other than as expressly set forth in this
Agreement, neither Party shall be liable or responsible for any indirect, incidental, punitive or
special damages, whether based upon breach of contract or warranty, negligence, strict tort liability
or otherwise, and each Party's liability for damages or losses hereunder shall be strictly limited to
direct damages that are actually incurred by the Party.
6.2 City Insurance Requirements. City shall be required to maintain, at its cost, property
insurance covering loss or damage to the City Assets, including the Venue, in an amount not less
than the full replacement value thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief, flood (in the event the
Venue is in a flood zone) special extended perils ("all risk", as such term is used in the insurance
Venue License Agreement Page 1 12
industry). In addition, the City shall name the Licensee as an additional insured under its excess
commercial general liability insurance policy if the excess carrier allows the City to name the
Licensee as an additional insured solely for the Venue any assets located therein.
6.3 Licensee Insurance Requirements. Licensee shall be required to maintain, at its
cost, the following policies of insurance with the following limits, maintained with a carrier having
an AM Best Rating of A -VII or better, with coverage on an occurrence basis or, if unavailable, on
a claims -made basis with a minimum three (3) year tail following termination or expiration of this
Agreement, and naming City as an additional insured on the policies. Copies of the insurance
policies shall be provided to the City within thirty (30) days of the commencement of the Term
and annually thereafter. The insurance limits set forth below may be achieved by a combination of
primary and umbrella/excess liability policies. Such policies shall provide thirty (30) days' written
notice to the City prior to any cancellation, nonrenewal, termination, material change, or reduction
in coverage, and shall be primary and non-contributory for Licensee's negligence.
(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 One Million Dollars and 00/100 ($1,000,000) per occurrence and Two Million Dollars and
00/100 ($2,000,000) general aggregate.
(b) Commercial Automobile Liability Insurance coverage for any owned, non -
owned, hired or borrowed automobile is required in the minimum amount of One Million Dollars
and 00/100 ($1,000,000) combined single limit.
(c) Professional Liability/Malpractice/Errors or Omissions Insurance
coverage appropriate for the type of business engaged in by the Respondent with minimum limits
of Two Million Dollars and 00/100 ($2,000,000) per occurrence. If a claims -made form of
coverage is provided, the retroactive date of coverage shall be no later than the inception date of
claims -made coverage, unless the prior policy was extended indefinitely to cover prior acts.
Coverage shall be extended beyond the policy year either by a supplemental extended reporting
period (SERP) of as great a duration as available, and with no less coverage and with reinstated
aggregate limits, or by requiring that any new policy provide a retroactive date no later than the
inception date of claims made coverage.
(d) Crime and Employee Dishonesty Insurance coverage must include fidelity
insurance for reimbursement to an employer for these types of losses. Third -party fidelity
coverage is also required to cover the acts of an employee against an employer's clients. Please
provide coverage using ISO form CR 00 01 Employee Dishonesty Coverage Form or its
equivalent and shall include ISO endorsement CR 04 01 Clients' Property or its equivalent and
ISO endorsement CR 20 14 Loss Payable or its equivalent.
(e) Workers' Compensation Insurance and Employer's Liability Insurance
with Workers' Compensation limits in statutory amount, unless waived by the State of Florida
and proof of waiver is provided to the City, and Employer's Liability Insurance in the minimum
amount of Five Hundred Thousand Dollars and 00/100 ($500,000) each employee each accident,
Venue License Agreement Page 1 13
Five Hundred Thousand Dollars and 00/100 ($500,000) each employee by disease, and Five
Hundred Thousand Dollars and 00/100 ($500,000) disease policy limit. Coverage must be
applicable to employees, contractors, subcontractors, and volunteers, if any.
Article VII. Damage or Destruction to Premises
7.1 Partial Damage. If all or a portion of the Venue are partially damaged by fire,
explosion, flooding inundation, floods, the elements, public enemy, acts of terrorism, or other
casualty, but not rendered uninhabitable, the same will be repaired with due diligence by City at
its own cost and expense, subject to the limitations as hereinafter provided; if said damage is
caused by the grossly negligent acts or omissions of the Licensee, its agents, officers, or
employees, the Licensee shall be responsible for reimbursing City for the cost and expense, in
excess of the City's insurance coverage, incurred in making such repairs.
7.2 Extensive Damage. If the damages as described above in "Partial Damage" are so
extensive as to render the Venue or a portion thereof uninhabitable, but are capable of being
repaired within a reasonable time not to exceed sixty (60) days, the same shall be repaired with
due diligence by City at its own cost and expense and a negotiated portion of the fees and charges
payable hereunder shall abate from the time of such damage until such time as the Venue is fully
restored and certified as again ready for use; provided, however, that if such damage is caused by
the grossly negligent acts or omissions of the Licensee, its agents, officers, or employees, the
Licensee shall be responsible for the cost and expenses, in excess of insurance coverage, incurred
in making such repairs.
7.3 Complete Destruction. In the event all or a substantial portion of the VENUE are
completely destroyed by fire, explosion, the elements, public enemy, acts of terrorism, or other
casualty, or are so damaged that they are uninhabitable and cannot be replaced except after more
than sixty (60) days, City shall be under no obligation to repair, replace or reconstruct said Venue,
no payments will be required of either party until such time as the said Venue are fully restored.
If within three (3) months after the time of such damage or destruction said Venue have not been
repaired or reconstructed, the Licensee may terminate this Agreement in its entirety as of the date
of such damage or destruction. Notwithstanding the foregoing, if the said Venue, or a substantial
portion thereof, are completely destroyed as a result of the grossly negligent acts or omissions of
the Licensee, its agents, officers, or employees, City may, in its discretion, require the Licensee
to repair and reconstruct the same within twelve (12) months of such destruction and the Licensee
shall be responsible for reimbursing City for the cost and expenses incurred in making such
repairs.
7.4 Limits of City's Obligation Defined. In the application of the foregoing
provisions, City may, but shall not be obligated to, repair or reconstruct the Venue. If the City
chooses to do so, City's obligation shall also be limited to repair or reconstruction of the Venue
to the same extent and of equal quality as obtained by the Licensee at the commencement of the
Term. All redecoration and replacement of capital investment, including all City Assets shall be
the cost and responsibility of the City. The Licensee shall bear the cost of repair and replacement
of any Licensee Assets except to the extent that the damage or destruction is caused by City's
gross negligence or more culpable action or omission.
Venue License Agreement Page 1 14
Article VIII. Confidentiality
8.1 Confidentiality. The business of conducting and operating an entertainment venue
that offers live entertainment to the public on a contract basis and/or on the rental of the Venue
basis is a complex, multifaceted undertaking. The business itself, including the provision of
services as well as the booking of entertainment is highly competitive between venues and between
the acts hired to perform. Negotiations are act specific and are affected by the choice of time of
the performance, the competition in markets where multiple venues exist, market conditions
generally, relationships within the industry, etc. Each contract entered into with an act is different.
Each contract negotiated with a service provider can be different than with any other venue. The
Licensee has the responsibility for the negotiation of and the contracting for services and the
booking of acts into the Venue. This process includes a high degree of confidentiality if the Venue
is going to be successful. The means and methods of negotiation and selected terms of service
contracts and booking contracts include information known only to certain employees of the
Licensee, which information is closely guarded by the Licensee. This results in less expense and
greater revenue to the Licensee, is information and know-how developed by the Licensee and its
employees over years of experience and would take significant time and expense for others to
duplicate. Accordingly, the Licensee shall maintain its trade secrets in the performance of its duties
hereunder. Licensee shall identify any trade secrets in any communications with the City and shall
communicate those to the City only as required. The parties acknowledge that the City must
comply with the Public Records Law as to any records in the City's possession or control. To the
extent that the City receives a request that may be eligible for protection or redaction as a trade
secret, the City will promptly notify Licensee of the request. The City Attorney's Office will confer
with the Licensee or Licensee's legal counsel, but the parties recognize that the City must and will
ultimately determine whether records in its possession are releasable under Florida law.
Article IX. Miscellaneous
9.1 Representations and Warranties.
(a) City represents and warrants to the Licensee the following:
(i) All required approvals have been obtained, and City has full legal
right, power and authority to enter into and perform its obligations hereunder;
(ii) This Agreement has been duly executed and delivered by City and
constitutes a valid and binding obligation of City, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws
affecting creditors' rights generally or by general equitable principles;
(iii) The execution and delivery of this Agreement will not violate or
cause a breach (with or without notice or the passage of time) under any agreement, law,
ordinance, or other obligation to which City is bound;
Venue License Agreement Page 1 15
(iv) There is no current, pending, or to the City's knowledge after due
inquiry, threatened, action or proceeding before any court or administrative agency to which it is
a party, questioning the validity of this Agreement, the relationship between the City and the
Licensee, or which appear likely to materially adversely affect the City's performance of its
obligations under this Agreement;
(v) City is the owner of the Park and the Venue;
(vi) City is financially capable to complete the construction of the
Venue and redevelopment of the Park, more generally, and shall proceed with diligence to
completion thereof;
(vii) Upon delivery to the Licensee, the Venue shall comply with all
laws, ordinances, orders, rules, regulations and other governmental requirements relating to the
use, occupancy, and condition of the Venue for the purposes described herein, including, without
limitation, the Americans with Disabilities Act and the certificate of occupancy;
(viii) All improvements in the Park, and specifically, the Venue, will be
constructed in a good and workmanlike manner, and said improvements and all other City Assets
are and will be in good working order and condition, free from defects in workmanship and
materials, and fit for the purposes for which they are provided; and
(ix) City understands and acknowledges the following:
(1) That the entertainment industry is extremely competitive
and contains substantial risk and volatility;
(2) The Licensee is a nonprofit entity that operates other
venues in the area, including but not limited to Ruth Eckerd Hall and Bilheimer Capitol Theatre,
and provides booking and production services at various locations throughout the Tampa Bay
area; and
(3) That performers and entertainers, and not the Licensee,
oftentimes choose or dictate what cities and venues at which they will perform, and that there
may be occasions where it is not economically feasible to schedule a performer into a venue the
size of the Venue, and that during a certain season, a performer or entertainer may play at another
venue managed by the Licensee.
(b) Licensee represents and warrants to City the following:
(i) All required approvals have been obtained, and Licensee has full
legal right, power and authority to enter into and perform its obligations hereunder;
(ii) This Agreement has been duly executed and delivered by Licensee
and constitutes a valid and binding obligation by Licensee, enforceable in accordance with its
Venue License Agreement Page 1 16
terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable principles; and
(iii) There is no current, pending, or to the Licensee's knowledge after
due inquiry, threatened, action or proceeding before any court or administrative agency to which
it is a party, questioning the validity of this Agreement, the relationship between the City and the
Licensee, or which appear likely to materially adversely affect the Licensee's performance of its
obligations under this Agreement.
9.2 Notice. All notices, requests, demands, claims, and other communications hereunder
shall be in writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly given when delivered personally to the recipient on a
business day prior to 5:00 P.M. local time, otherwise on the next business day, faxed
or emailed to the intended recipient on a business day prior to 5:00 P.M. local time,
otherwise on the next business day at the facsimile number or email address set forth
therefor below (with electronic confirmation of receipt and hard copy to follow), or
one business day after being sent to the recipient by reputable express courier service
(charges prepaid) and addressed to the intended recipient as set forth below:
If to City:
City of Clearwater
Parks Department
100 South Myrtle Avenue
Clearwater, Florida 33756
Attention: James Halios
Email: jim.halios@myclearwater.com
If to Licensee:
Ruth Eckerd Hall, Inc.
1111 N. McMullen Booth Road
Clearwater, FL 33759
Attn: Susan Crockett, CEO
Email: s.crockett@rutheckerdhall.net
With copy to (which shall not constitute
notice):
City Attorney
600 Cleveland Street
Clearwater, Florida 33755
Attention: David Margolis
Email: david.margolis@myclearwater.com
With copy to (which shall not constitute
notice):
Macfarlane Ferguson & McMullen, P.A.
625 Court Street
Clearwater, Florida 33756
Phone: 727-444-1403
Attention: Brian J. Aungst, Esq.
Email: bja@macfar.com
9.3 Order of Precedence. In the event of any conflict between this Agreement and any
exhibits or other documents entered into in connection herewith, the provisions of this Agreement
shall prevail. In addition, the parties acknowledge that the City intends to enter into a separate
brokerage agreement relating to Venue Sponsorships and pouring rights across the City, including
the Park and Venue. The parties intend for this Venue License Agreement to be fully compatible
with any forthcoming agreement between the City and The Superlative Group, Inc. However, in
Venue License Agreement Page 1 17
the event of a latent or patent ambiguity requiring resolution, this Venue License Agreement shall
control.
9.4 Entire Agreement. This Agreement, the exhibits, and any documents executed in
connection with this Agreement, constitute and express the entire agreement of the Parties hereto
and no agreements, warranties, representations or covenants not herein expressed shall be binding
upon the parties.
9.5 Captions. Captions appearing before sections and articles in this Agreement have
been inserted solely for the purposes of convenience and ready reference. They do not purport to,
and shall not be deemed to, define, limit or extend the scope or intent of the section or articles to
which they pertain.
9.6 No Partnership or Joint Venture. Nothing herein contained is intended or shall be
construed in any way to create or establish the relationship of partners or a joint venture between
City and Licensee.
9.7 Good Faith. It is agreed that both Parties shall perform their respective duties
under the terms of this Agreement in good faith.
9.8 Incorporation of Terms and Conditions. The terms and conditions set forth in
Exhibit C are incorporated into this Agreement.
Venue License Agreement Page 1 18
IN WITNESS WISE OF, this Agreement has been executed by the Parties and is
effective as of the r day of 2022,
APPROVED BY CITY THIS DAY OF CITY:
®,2022
THE CITY OF CLEARWATER, FLORIDA,
Countersigned: a municipal corporation of the State of Florida
�ry
® By: ---Cr(y--'�
RANKHIBBARD,Mayor Name: (N) ? C,f r)v-
Title:
Approved as to form: Attest:
DAVID MARGOLIS, City Attorney ROSE A IE CALL, as its Cit ler
J !k!
IED
LICENSEE:
RUTH ECKERD HALL, INC,,a Florida not-
for-profit corporation
a,
By:
Name: SUSAN CROCKETT
Title: CEO
Venue License Agreement Page 119
IMAGINE CLEARWATER
FENCE EXHIBIT
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EXHIBIT
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Exhibit B
Preliminary Asset List (not finalized) rev 10.1.2022
Capital Inv Qty
839,990 STAGE/PRODUCTION EQUIPMENT
3 Phase Cam Locks - Is infrastructure provided to support video walls
Bus Hook-ups
Video Walls, IMAG REH 2
SpotLights REH 4
TV's REH 8
ClearCom
REH 1
Live HD 4k Video Cameras
Additional Sound Equipment
REH 3
SM58- Shure Handheld Vocal mic (not wireless) REH 2
Shure SLXD24D/SM58-G58 dual wireless w/handheld transmitters REH 4
Shure KSM 137- Cardioid mic overheads & hat REH 1
DXR12- Yamaha loud speakers -stage wedges REH 4
Senn E609- Sennheiser mic for guitar amps REH 2
Shure Beta 52A- Drum mic REH 1
Shure Beta 87A- handheld Vocal mic REH 4
Midas M32 Console- preferred mixing console REH 2
Decibel monitoring equipment REH
673,588 FOOD & BEVERAGE EQUIPMENT
156,200 PATRON/FRONT OF HOUSE/SUSTAINABILITY
Seating City
Wayfinding Signage City
Listen Everywhere Wifi (ADA Hearing System) City
Mag Machines REH 12
Barricades REH 24
Projectors REH
Reusable Cup System (Turnsystems, rcup)
REH
Solar Charging Station
REH 2
Sustainable Waste Management (Covanta)
REH
305,720 NETWORK/HARDWARE
Serverforinternet 1
Server/Router/Switches (lumped in for one estimate) 1
Wifi access points (lumped in for one estimate) 1
Cabling' 1
Server Rack With Power 2
Rack UPS Hotswap 1
Phone System 1
Laptops - Manager, TD, Security, HM, Cust Svc 8
Laptop/Tablets - Merch/Auction 2
F&B POS Hardware (Tablet, stand, case) 42
F&B POS Charging Station 2
Printers 3
BOCA Printers
Kiosks Ticketing
2
2
Kiosk Cash to Card 2
Scanners - Zebra TC72 / TC75 18
340,000 OTHER FF&E
Video Surveillance System City
TBD - Access Control / Alarm System
TBD - Marquee
TBD - VIP Furniture
TBD -Dressing, Room Furniture
TBD - Office Furniture
Radios/security and amp staff REH 50
Golf Carts (F&B, Prod, Security) REH 4
Privacy solution for short fencing REH
Storage Solution REH 1
Portable Merch Stand REH 1
Kubota RTV X110C REH 2
Kubota Lawn Sweeper Attachment REH 2
Kubota Yard Trailer REH 2
Kubota Street Sweeper Attachment REH 2
3500 Psi 4 GPM Pressure Washer/Sidewalk Attach REH 2
Misc Custodial Equip REH 1
200,000 START UP INVESTMENT
Branding & Launch Campaign, Opening Activities
2,515,498 Total Investment
REH
REH
VENUE LICENSE AGREEMENT
EXHIBIT C
STANDARD TERMS AND CONDITIONS
S.1
INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of
Licensee to the City will be that of an independent contractor. Licensee and all persons
employed by Licensee, either directly or indirectly, are Licensee's employees, not City
employees. Accordingly, Licensee and Licensee's employees are not entitled to any
benefits provided to City employees including, but not limited to, health benefits,
enrollment in a retirement system, paid time off or other rights afforded City employees.
Licensee employees will not be regarded as City employees or agents for any purpose,
including the payment of unemployment or workers' compensation. If any of Licensee
employees or subcontractors assert a claim for wages or other employment benefits
against the City, Licensee will defend, indemnify and hold harmless the City from all such
claims.
S.2 SUBCONTRACTING. Licensee may subcontract work under this Agreement without
the express written permission of the City, provided, however, that Licensee shall ensure
that all subcontractors performing work under the Agreement must comply with its
provisions. Further, all agreements between Licensee and its subcontractors must provide
that the terms and conditions of this Agreement be incorporated therein.
S.3 ASSIGNMENT. This Agreement may not be assigned either in whole or in part without
first receiving the City's written consent. Any attempted assignment, either in whole or
in part, without such consent will be null and void and in such event the City will have
the right at its option to terminate the Agreement. No granting of consent to any
assignment will relieve Licensee from any of its obligations and liabilities under the
Agreement.
S.4 SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding
upon and inure to the benefit of the parties and their respective permitted successors and
assigns.
S.5 NO THIRD -PARTY BENEFICIARIES. This Agreement is intended for the exclusive
benefit of the parties. Nothing set forth in this Agreement is intended to create, or will
create, any benefits, rights, or responsibilities in any third parties.
S.6 AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can
only be modified in a writing signed by both parties. No charge for extra work or material
will be allowed unless approved in writing, in advance, by the City and Licensee.
S.7 TIME OF THE ESSENCE. Time is of the essence to the performance of the parties'
obligations under this Agreement.
S.8 COMPLIANCE WITH APPLICABLE LAWS.
a) General. Licensee must procure all permits and licenses, and pay all charges and
fees necessary and incidental to the lawful conduct of business. Licensee must
stay fully informed of existing and future federal, state, and local laws, ordinances,
and regulations that in any manner affect the fulfillment of this Agreement and
must comply with the same at its own expense. Licensee bears full responsibility
for training, safety, and providing necessary equipment for all Licensee personnel
to achieve throughout the term of the Agreement. Upon request, Licensee will
demonstrate to the City's satisfaction any programs, procedures, and other
activities used to ensure compliance.
b) Drug -Free Workplace. Licensee is hereby advised that the City has adopted a
policy establishing a drug-free workplace for itself and those doing business with
the City to ensure the safety and health of all persons working on City contracts
and projects. Licensee will require a drug-free workplace for all Licensee
personnel working under this Agreement. Specifically, all Licensee personnel
who are working under this Agreement must be notified in writing by Licensee
that they are prohibited from the manufacture, distribution, dispensation, or
unlawful possession or use of a controlled substance in the workplace. Licensee
agrees to ensure that Licensee personnel do not use or possess illegal drugs while
in the course of performing their duties.
c) Federal and State Immigration Laws. Licensee agrees to comply with the
Immigration Reform and Control Act of 1986 (IRCA) in performance under this
Agreement and to permit the City and its agents to inspect applicable personnel
records to verify such compliance as permitted by law. Licensee will ensure and
keep appropriate records to demonstrate that all Licensee personnel have a legal
right to live and work in the United States.
(i)
As applicable to Licensee, under this provision, Licensee hereby warrants
to the City that Licensee will comply with and ensure each of its
subcontractors are contractually obligated to comply with, all federal
immigration laws and regulations that relate to their employees
(hereinafter "Licensee Immigration Warranty").
(ii) A breach of the Licensee Immigration Warranty will constitute as a
material breach of this Agreement and will subject Licensee to penalties
up to and including termination of this Agreement at the sole discretion of
the City.
(iii) The City retains the legal right to inspect the papers of all Licensee
personnel who provide services under this Agreement to ensure that
Licensee or its subcontractors are complying with the Licensee
Immigration Warranty. Licensee agrees to assist the City in regard to any
such inspections.
C-2
(iv) The City may, at its sole discretion, conduct random verification of the
employment records of Licensee and any subcontractor to ensure
compliance with the Licensee Immigration Warranty. Licensee agrees to
assist the City in regard to any random verification performed.
(v) Neither Licensee nor any subcontractor will be deemed to have materially
breached the Licensee Immigration Warranty if Licensee or subcontractor
establishes that it has complied with the employment verification
provisions prescribed by Sections 274A and 274B of the Federal
Immigration and Nationality Act.
d) Nondiscrimination. Licensee represents and warrants that it does not
discriminate against any employee or applicant for employment or person to
whom it provides services because of race, color, religion, sex, national origin, or
disability, and represents and warrants that it complies with all applicable federal,
state, and local laws and executive orders regarding employment. Licensee and
Licensee's personnel will comply with applicable provisions of Title VII of the
U.S. Civil Rights Act of 1964, as amended, Section 504 of the Federal
Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 et
seq.), and applicable rules in performance under this Agreement.
S.9 SALES/USE TAX, OTHER TAXES. Licensee is responsible for the payment of all
taxes including federal, state, and local taxes related to or arising out of Licensee's
services under this Agreement, including by way of illustration but not limitation, federal
and state income tax, Social Security tax, unemployment insurance taxes, and any other
taxes or business license fees as required. If any taxing authority should deem Licensee
or any Licensee employees an employee of the City, or should anyone otherwise claim
the City is liable for the payment of taxes that are Licensee's responsibility under this
Agreement, Licensee will indemnify the City for any tax liability, interest, and penalties
imposed upon the City. Both City and the Licensee are exempt from paying state and local
sales/use taxes and certain federal taxes and will furnish an exemption certificate upon
request.
S.10 AMOUNTS DUE THE CITY. Licensee must be current and remain current in all
obligations due to the City during the performance of services under the Agreement.
Payments to Licensee may be offset by any delinquent amounts due the City or fees and
charges owed to the City.
PUBLIC RECORDS. In addition to all other contract requirements as provided by law,
the Licensee executing this agreement agrees to comply with public records law. The
Licensee's agreement to comply with public records law applies specifically to:
a) Keep and maintain public records required by the City of Clearwater (hereinafter
"public agency") to perform the service being provided by the Licensee hereunder.
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b) Upon request from the public agency' s custodian of public records, provide the
public agency 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 for in Chapter 119, Florida Statutes, as may be amended from time to
time, or as otherwise provided by law.
c) Ensure that the 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 Licensee does not transfer the records to the public agency.
d) Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the Licensee or keep and maintain public records
required by the public agency to perform the service. If the Licensee transfers all
public records to the public agency upon completion of the contract, the Licensee
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Licensee keeps and
maintains public records upon completion of the contract, the Licensee shall meet
all applicable requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from the public
agency's custodian of public records, in a format that is compatible with the
information technology systems of the public agency.
e) A request to inspect or copy public records relating to a public agency's contract
for services must be made directly to the public agency. If the public agency does
not possess the requested records, the public agency shall immediately notify the
Licensee of the request and the Licensee must provide the records to the public
agency or allow the records to be inspected or copied within a reasonable time.
f) The Licensee hereby acknowledges and agrees that if the Licensee does not
comply with the public agency's request for records, the public agency shall
enforce the contract provisions in accordance with the contract.
g)
If the Licensee fails to provide the public records to the public agency within a
reasonable time, it may be subject to penalties under Section 119.10, Florida
Statutes.
h) If a civil action is filed against the Licensee to compel production of public records
relating to a public agency's contract for services, the court shall assess and award
against the Licensee the reasonable costs of enforcement, including reasonable
attorney fees, if:
1) The court determines that the Licensee unlawfully refused to comply with
the public records request within a reasonable time; and
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2) At least eight (8) business days before filing the action, the plaintiff
provided written notice of the public records request, including a statement
that the Licensee has not complied with the request, to the public agency
and to the Licensee.
i) A notice complies with subparagraph (h)(2). if it is sent to the public agency's
custodian of public records and to the Licensee at the Licensee's address listed on
its contract with the public agency or to the Licensee's registered agent. Such
notices must be sent by common carrier delivery service or by registered, Global
Express Guaranteed, or certified mail, with postage or shipping paid by the sender
and with evidence of delivery, which may be in an electronic format. If the
Licensee complies with a public records request within eight (8) business days
after the notice is sent, it is not liable for the reasonable costs of enforcement.
S.12 BACKGROUND CHECK. The City may conduct criminal, driver history, and all other
requested background checks of Licensee personnel who would perform services under
the Agreement or who will have access to the City's information, data, or facilities in
accordance with the City's current background check policies. Any officer, employee, or
agent that fails the background check must be replaced immediately for any reasonable
cause not prohibited by law.
S.13 DEFAULT.
a) A party will be in default if that party: (i) is or becomes insolvent or is a party to
any voluntary bankruptcy or receivership proceeding, makes an assignment for a
creditor, or there is any similar action that affects Licensee's capability to perform
under the Agreement; (ii) is the subject of a petition for involuntary bankruptcy
not removed within sixty (60) calendar days; (iii) conducts business in an
unethical manner or in an illegal manner; or (iv) materially fails to carry out any
term, promise, or condition of the Agreement.
b) Licensee will be in default of this Agreement if Licensee is debarred from
participating in City procurements and solicitations in accordance with the City's
Purchasing Policy and Procedures Manual.
c) Notice and Opportunity to Cure. In the event a party is in default then the other
party may, at its option and at any time, provide written notice to the defaulting
party of the default. The defaulting party will have thirty (30) days from receipt
of the notice to cure the default; the thirty (30) day cure period may be extended
by mutual agreement of the parties, but no cure period may exceed ninety (90)
days. A default notice will be deemed to be sufficient if it is reasonably calculated
to provide notice of the nature and extent of such default.
d) Anticipatory Repudiation. Whenever the City in good faith has reason to
question Licensee's intent or ability to perform, the City may demand that
Licensee give a written assurance of its intent and ability to perform. In the event
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that the demand is made and no written assurance is given within fifteen (15)
calendar days, the City may treat this failure as an anticipatory repudiation of the
Agreement.
S.14 REMEDIES. The remedies set forth in this Agreement are not exclusive. Election of one
remedy will not preclude the use of other remedies. In the event of default:
a) The non -defaulting party may terminate the Agreement upon determination in
good faith by the non -defaulting party that there was a material breach of the
Agreement that remained uncured following notice and opportunity to cure as
provided in section 14(c), above, and the termination will be deemed effective, if
the non -defaulting party is the Licensee, immediately or upon such other date as
specified in a notice of termination, and if the non -defaulting party is the City,
then on such date as is determined by the Clearwater City Council at a duly
constituted City Council meeting following failure to cure such material breach
by the Licensee, with written notice of such City Council meeting being provided
to the Licensee no less than thirty (30) days prior thereto, and the termination will
be effective immediately or at such other date as specified by the City Council.
b) The non -defaulting party may purchase the services required under the Agreement
from the open market, complete required work itself, or have it completed at the
expense of the defaulting party. If the costs of obtaining substitute services
exceeds the contract price, the non -defaulting party may recover the excess costs
by: (i) requiring immediate reimbursement to the non -defaulting party; (ii)
deduction from an unpaid balance due to defaulting party; (iii) collection against
the proposal and/or performance security, if any; (iv) collection against liquidated
damages (if applicable); or (v) a combination of the aforementioned remedies or
other remedies as provided by law. Costs includes any and all, fees, and expenses
incurred in obtaining substitute services and expended in obtaining
reimbursement, including, but not limited to, administrative expenses, attorneys'
fees, and costs.
c) The non -defaulting party will have all other rights granted under this Agreement
and all rights at law or in equity that may be available to it.
d) Neither party will be liable for incidental, special, or consequential damages.
S.15 CONTINUATION DURING DISPUTES. The parties agree that during any dispute
between the parties, each will continue to perform its obligations until the dispute is
settled, performance is enjoined or prohibited by judicial action, or the parties are
otherwise required or obligated to cease performance by other provisions in this
Agreement.
S.16 TERMINATION FOR CONVENIENCE. The City may terminate this Agreement on
thirty (30) days' written notice for any reason upon approval of the Clearwater City
Council at a duly constituted City Council meeting. The City shall provide Licensee no
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less than thirty (30) calendar days' written notice of the meeting of City Council to
determine termination of the Agreement. The Licensee may terminate the Agreement
upon six (6) months prior notice to the City for any reason or no reason.
S.17 TERMINATION FOR CONFLICT OF INTEREST - Florida Statutes Section 112.
Pursuant to F.S. Section 112, the City may cancel this Agreement after its execution,
without penalty or further obligation, if any person significantly involved in initiating,
securing, drafting, or creating the Agreement for the City becomes an employee or agent
of Licensee involved with the Venue.
S.18 PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of this
Agreement, Licensee will be entitled to payment for those services performed up to the
date of termination, any authorized expenses already incurred up to such date of
termination, any costs incurred by the Licensee in connection with cancellation of any
events and/or bookings as a result of the termination, the then -current fair market value
of the capital expenditures made for the Venue by Licensee, and other items as described
in Section 4.3 of the Agreement. The City will make final payment within thirty (30)
calendar days after the City has received Licensee's final invoice.
S.19 NON -WAIVER OF RIGHTS. There will be no waiver of any provision of this
agreement unless approved in writing and signed by the waiving party. Failure or delay
to exercise any rights or remedies provided herein or by law or in equity, or the acceptance
of, or payment for, any services hereunder, will not release the other party of any of the
warranties or other obligations of the Agreement and will not be deemed a waiver of any
such rights or remedies.
S.20 WARRANTY. Each party warrants that the services and materials will conform to the
requirements of the Agreement. Additionally, each party warrants that all services will be
performed in a good, workman -like and professional manner. If any materials or services
are of a substandard or unsatisfactory manner as determined by the other party, in good
faith, the providing party, at no additional charge to the other, will provide materials or
redo such services until in accordance with this Agreement and to the other party's
reasonable satisfaction. Unless otherwise agreed, the City and Licensee warrant that
materials used will be new, unused, of most current manufacture and not discontinued,
will be free of defects in materials and workmanship, will be provided in accordance with
manufacturer's standard warranty for at least one (1) year unless otherwise specified, and
will perform in accordance with manufacturer's published specifications.
S.21 THE CITY'S RIGHT TO RECOVER AGAINST THIRD PARTIES. Licensee will
do nothing to prejudice the City's right to recover against third parties for any loss,
destruction, or damage to City property, and will at the City's request and expense, furnish
to the City reasonable assistance and cooperation, including assistance in the prosecution
or defense of suit and the execution of instruments of assignment in favor of the City in
obtaining recovery.
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S.22 USE OF NAME. Licensee will not use the name of the City of Clearwater in any
advertising or publicity without obtaining the prior written consent of the City.
S.23 PROHIBITED ACTS. Pursuant to Florida Constitution Article II Section 8, a current or
former public officer or employee within the last two (2) years shall not represent another
organization before the City on any matter for which the officer or employee was directly
concerned and personally participated in during their service or employment or over
which they had a substantial or material administrative discretion.
S.24 RISK OF LOSS. Except as otherwise provided in the Agreement, each party agrees to
bear all risks of loss, injury, or destruction of goods or equipment incidental to providing
any services, to the extent such party provides the services, and such loss, injury, or
destruction will not release the party from any obligation hereunder.
S.25 SAFEGUARDING CITY PROPERTY. Except as otherwise provided in this
Agreement, Licensee will be responsible for any damage to City real property or damage
or loss of City personal property when such property is the responsibility of or in the
custody of Licensee or its employees to the extent that such damage is caused by gross
negligence of the Licensee or its employees.
S.26 WARRANTY OF RIGHTS. Each party warrants it has title to, or the right to allow the
other to use the materials and services being provided to the other and that the party
receiving materials or services may use same without suit, trouble or hindrance from
providing party or third parties.
S.27 PROPRIETARY RIGHTS INDEMNIFICATION. Without limiting the foregoing,
each party (the "Indemnifying Party") will without limitation, at its expense defend the
other party (the "Indemnified Party") against all claims asserted by any person that
anything provided by Indemnifying Party infringes a patent, copyright, trade secret or
other intellectual property right and must, without limitation, pay the costs, damages and
attorneys' fees awarded against the Indemnified Party in any such action, or pay any
settlement of such action or claim. Each party agrees to notify the other promptly of any
matters to which this provision may apply and to cooperate with each other in connection
with such defense or settlement. If a preliminary or final judgment is obtained against the
Indemnified Party's use or operation of the items provided by Indemnifying Party
hereunder or any part thereof by reason of any alleged infringement, Indemnifying Party
will, at its expense and without limitation, either: (a) modify the item so that it becomes
non -infringing; (b) procure for the Indemnified Party the right to continue to use the item;
(c) substitute for the infringing item other item(s) having at least equivalent capability; or
(d) refund to the Indemnified Party an amount equal to the price paid, less reasonable
usage, from the time of installation acceptance through cessation of use, which amount
will be calculated on a useful life not less than five (5) years, plus any additional costs the
Indemnified Party may incur to acquire substitute supplies or services.
S.28 CONTRACT ADMINISTRATION. The agreement will be administered by the
Purchasing Administrator and/or an authorized representative from the using department.
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All questions regarding the agreement will be referred to the administrator for resolution.
Supplements may be written to the agreement for the addition or deletion of services.
Payment will be negotiated and determined by the contract administrator(s).
S.29 FORCE MAJEURE. Failure by either party to perform its duties and obligations will be
excused by unforeseeable circumstances beyond its reasonable control, including acts of
nature, acts of the public enemy, hostilities (whether declared or not), invasion, riots, civil
unrest, embargos or blockades, national or regional emergency, strikes, labor stoppages
or slowdowns or other industrial disturbances, telecommunication breakdowns, power
outages or shortages, inability or delay in obtaining supplies of adequate or suitable
materials, fire, explosion, other catastrophe or disaster, including epidemics, legislation,
and governmental regulation. The party whose performance is so affected will within five
(5) calendar days of the unforeseeable circumstance notify the other party of all pertinent
facts and identify the force majeure event. The party whose performance is so affected
must also take all reasonable steps, promptly and diligently, to prevent such causes if it is
feasible to do so, or to minimize or eliminate the effect thereof. The delivery or
performance date will be extended for a period equal to the time lost by reason of delay,
plus such additional time as may be reasonably necessary to overcome the effect of the
delay, provided however, under no circumstances will delays caused by a force majeure
extend beyond one hundred -twenty (120) calendar days from the scheduled delivery or
completion date of a task unless agreed upon by the parties.
S.30 COOPERATIVE USE OF CONTRACT. The City has entered into various cooperative
purchasing agreements with other Florida government agencies, including the Tampa Bay
Area Purchasing Cooperative. Under a Cooperative Purchasing Agreement, any contract
may be extended for use by other municipalities, school districts and government agencies
in the State of Florida with the approval of Licensee. Any such usage by other entities
must be in accordance with the statutes, codes, ordinances, charter and/or procurement
rules and regulations of the respective government agency. Orders placed by other
agencies and payment thereof will be the sole responsibility of that agency. The City is
not responsible for any disputes arising out of transactions made by others.
S.31 NOTICES. All notices to be given pursuant to this Agreement must be delivered to the
parties at their respective addresses. Notices may be (i) personally delivered; (ii) sent via
certified or registered mail, postage prepaid; (iii) sent via overnight courier; or (iv) sent
via facsimile. If provided by personal delivery, receipt will be deemed effective upon
delivery. If sent via certified or registered mail, receipt will be deemed effective three (3)
calendar days after being deposited in the United States mail. If sent via overnight courier
or facsimile, receipt will be deemed effective two (2) calendar days after the sending
thereof.
S.32 GOVERNING LAW, VENUE. This Agreement is governed by the laws of the State of
Florida. The exclusive venue selected for any proceeding or suit in law or equity arising
from or incident to this Agreement will be Pinellas County, Florida.
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S.33 INTEGRATION CLAUSE. The Agreement, including all attachments and exhibits
hereto, supersede all prior oral or written agreements, if any, between the parties and
constitutes the entire agreement between the parties with respect to the work to be
performed.
S.34 PROVISIONS REQUIRED BY LAW. Any provision required by law to be in this
Agreement is a part of this Agreement as if fully stated in it.
S.35 SEVERABILITY. If any provision of this Agreement is declared void or unenforceable,
such provision will be severed from this Agreement, which will otherwise remain in full
force and effect. The parties will negotiate diligently in good faith for such amendment(s)
of this Agreement as may be necessary to achieve the original intent of this Agreement,
notwithstanding such invalidity or unenforceability.
S.36 SURVIVING PROVISIONS. Notwithstanding any completion, termination, or other
expiration of this Agreement, all provisions which, by the terms of reasonable
interpretation thereof, set forth rights and obligations that extend beyond completion,
termination, or other expiration of this Agreement, will survive and remain in full force
and effect. Except as specifically provided in this Agreement, completion, termination, or
other expiration of this Agreement will not release any party from any liability or
obligation arising prior to the date of termination.
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