Terms_and_Conditions.pdf

00859800.docx

Terms and Conditions

The following terms and conditions will be included in the management agreement between the City and the selected Manager (referred to herein as the “management agreement”). This is not an exhaustive list of required provisions and the City, in its sole and absolute discretion, reserves the right to add or modify terms and conditions during negotiations with the selected Manager.

1. Definitions. The following terms have the meaning ascribed to them below and words in the singular form should be construed to include the plural and vice versa, unless the context otherwise requires:

“Bond Counsel” means Bryant Miller Olive, P.A. or their successors in their capacity as legal advisor to the City with respect to Bonds.

“Bonds” means all current and future bonds, notes and loan agreements the proceeds of which are utilized to finance construction of or improvements to the Mahaffey Theater Facility or any portion thereof.

“Booking Business Records” means booking business records, as defined in Section

255.047, Florida Statutes, related to the Mahaffey Theater Facility and prepared or developed by either the City or Manager.

“Capital Improvement” means a repair, renewal or replacement of the Mahaffey Theater Facility buildings, structures, equipment or fixtures which has an expected useful life greater than one year and a cost greater than $50,000.

“City Attorney” means the individual holding the position of City Attorney as that position is described in the City Charter or an Assistant City Attorney designated by the City Attorney.

“City Charter” means the City of St. Petersburg, Florida Municipal Charter.

“City Council” means the City Council of the City established pursuant to the City Charter.

“City Council Approval” or “Approved by City Council” means prior approval of City

Council by Resolution or ordinance in accordance with the procedures set forth in Section 166.041, Florida Statutes.

“Center for the Arts Plaza” means the area designated as Center for the Arts Plaza on

Exhibit A and all current improvements thereto.

“Costs of Maintenance and Repairs” means all costs of maintenance and repairs to the Mahaffey Theater Facility necessary to maintain the Mahaffey Theater Facility buildings, structures, equipment and fixtures in sound condition, excluding Capital Improvements. Costs of Maintenance and Repairs include but are not limited to costs of HVAC system repair, landscape maintenance, elevator service agreements, fire alarm testing, and minor parking lot repairs.

“Dali Grant Agreement” means the grant agreement between the City and the Museum Organization, dated December 8, 2010, as such agreement may be amended from time to time.

“Fiscal Year” means the period of time from October 1st to September 30th.

“Generally Accepted Accounting Principles” means those accounting principles promulgated by the Governmental Accounting Standards Board, Financial Accounting Standards Board, and other standard setting boards as mutually agreed upon by the parties from time to time, and any applicable standards required by applicable Laws.

“Laws” means all existing and future federal, state, and local statutes, ordinances, City

Charter, rules, regulations and resolutions, the federal and state constitutions, all orders and decrees of lawful authorities having jurisdiction over the matter at issue, and all City policies and procedures, including but not limited to statutes governing construction of public buildings and repairs upon public buildings and public works (including but not limited to the bonding requirements of Section 255.05, Florida Statutes, regardless of whether the contract for construction or repair is between Manager and the contractor or the contractor and the City), Chapter 119, Florida Statutes, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Chapter 448, Florida Statutes, Laws regarding E-Verify, Age Discrimination in Employment Act, Family Medical Leave Act, and permit and license requirements.

“Lease or License Agreement” means any agreement for the lease or license (i.e., use) of the Mahaffey Theater Facility, or any portion thereof, with a term (including any and all renewals and extensions) in excess one (1) year.

“Mahaffey Theater” means the area designated as Mahaffey Theater on Exhibit A (including but not limited to the main stage), and all current and future improvements thereto.

“Mahaffey Theater Facility” means the area designated as the Mahaffey Theater Facility on Exhibit A, including but not limited to the Mahaffey Theater, Parking Facilities, and the Center for the Arts Plaza. The City, in its sole and absolute discretion, has the right to add or delete property to the definition of Mahaffey Theater Facility pursuant to the terms of the management agreement.

“Mayor” means the Mayor of the City of St. Petersburg or Mayor’s designee, as authorized in writing.

“Mayor Approval” or “Approved by the Mayor” means prior written approval by the

Mayor or Mayor’s designee, as authorized in writing.

“Museum Lease Lot 3” means the Parking Lot as defined in the Museum Lease, which is currently depicted as Lot 3 on the Center for the Arts Plat recorded in Pinellas County Plat Book 134 at Page 98 and which may be amended in the Museum Lease from time to time.

“Museum Lease” means the amended and restated ground lease agreement between the City and Museum Organization, dated December 30, 2024, as such agreement may be amended from time to time.

“Museum Organization” means the Salvador Dali Museum, Inc., and its successors and assigns.

“Naming Rights Plan” means the naming rights plan developed by Manager and Approved by the Mayor.

“Parking Facilities” means the combination of surface parking and parking garage parking designated on Exhibit A.

“Race Promoters” means any and all third parties that the City contracts with currently or in the future for the conduct of racing events in downtown St. Petersburg, including but not limited to Green Savoree St. Petersburg, LLC.

“Resolution” has the meaning contained in Section 166.041, Florida Statutes.

“Sign Guidelines” means the sign, logo and advertisement guidelines developed and submitted by Manager and Approved by the Mayor.

“Submittals” means any and all plans, reports and other documents required to be submitted by Manager to the Mayor or City Council pursuant to the management agreement.

“Use Agreement” means an agreement for use of the Mahaffey Theater Facility, or any portion thereof, with a maximum term (including any and all renewals and extensions) of one (1) year.

2. Manager’s Duties. Manager is responsible for the complete management, operation, maintenance and marketing of the Mahaffey Theater Facility and must carry out all provisions of the management agreement consistent with industry standards. Manager’s duties include, but are not limited to:

(i) marketing, advertising and promoting the Mahaffey Theater Facility;

(ii) booking events and activities at the Mahaffey Theater Facility to meet a minimum acceptable activity level which will be set forth as an exhibit in the management agreement;

(iii) providing or contracting for all goods and services necessary to manage, operate, maintain and market the Mahaffey Theater Facility;

(iv) hiring and training all employees so that the Mahaffey Theater Facility will be properly staffed with qualified personnel;

(v) coordinating news, entertainment and educational media;

(vi) providing effective inspections, operations and maintenance of the Mahaffey Theater Facility, including preventative maintenance, inspections for dangerous conditions, repairs, risk management, hurricane and emergency procedures, fire prevention, security, custodial services, energy conservation and landscape maintenance;

(vii) addressing all site coordination issues and parking and traffic access issues, including, but not limited to site coordination, parking and traffic access issues related to the Grand Prix Race Agreement, Salvador Dali Museum, and Florida Orchestra, Inc.;

(viii) compiling all accounting and reporting on an accrual basis and in accordance with Generally Accepted Accounting Principles;

(ix) notifying the City Attorney when Manager believes it is necessary for the City to initiate a legal action or proceeding against a third party related to the Mahaffey Theater Facility and, if directed by the City Attorney in writing, initiating a legal proceeding as agent for the City in accordance with the City Attorney’s instructions and the budget established by the City Attorney;

(x) acting in good faith consistent with the goals and terms of the management agreement;

(xi) utilizing sound business practices in the management, operation, maintenance and marketing of the Mahaffey Theater Facility;

(xii) communicating in a timely manner and establishing a cooperative relationship with the Mayor, lessees, licensees and users of the Mahaffey Theater Facility, entities conducting current programming at the Mahaffey Theater Facility and local cultural arts entities (e.g., Florida Orchestra, Salvador Dali Museum, and Palladium Theatre; and

(xiii) timely providing to the City all Submittals required by the City, including, but not limited to the following:

(1) Staff Plan. Manager must prepare and submit to the Mayor a staff plan for the management, operation, maintenance and marketing of the Mahaffey Theater Facility. The staff plan must include, but not be limited to, an organizational chart, job descriptions, qualifications, pay ranges and benefit programs. The staff plan also must include a description of any operational functions that may be subcontracted, with a narrative explanation supporting the recommendation to subcontract those functions.

(2) Maintenance Standards. Manager must prepare and submit to the Mayor maintenance standards which set forth specific maintenance requirements for the Mahaffey Theater Facility, including but not limited to preventative maintenance and specific maintenance procedures set forth in equipment and material warranties.

(3) Standard Operating Procedures Manual. Manager must prepare and submit to the Mayor standard operating procedures manuals for administration, marketing, emergency procedures, custodial procedures, security, and other management or operational functions specified by the Mayor.

(4) Booking Policy. Manager must prepare and submit to the Mayor the policies and procedures (including but not limited to scheduling procedures) used by Manager for programming and event management. The booking policy, must, at a minimum, address the following:

(a) Diversity of Programming. The booking policy must describe how Manager will achieve a diverse event programming (e.g., popular music, classical music, Broadway-type programming and family entertainment) that has broad appeal and set forth diversity goals and requirements.

(b) Quality of Programming. The booking policy must describe how Manager will achieve consistently high quality of programming and quality goals and requirements.

(c) At Risk Programming. The booking policy must describe goals and requirements for event programming that is a sole promotion or co-promotion of Manager funded in whole or in part by funds designated by the City as at-risk funds.

(5) Capital Improvement Plan. Each year of the term of the management agreement, Manager must prepare and submit to the Mayor a Capital Improvement plan for the following Fiscal Year of operation and for the remainder of the term which plan must contain Manager’s recommendations for Capital Improvements.

(6) Marketing Plan. Manager must prepare and submit to the Mayor a strategic marketing plan.

(7) Sign Guidelines. Manager must prepare and submit to the Mayor Sign Guidelines for signs, logos and advertisements to be placed on any portion of the Mahaffey Theater Facility (interior or exterior).

(8) Reporting.

(a) Annual Report. On or before November 1 of each Fiscal Year during the term of the management agreement, Manager must prepare and submit to the Mayor and City Council a written report summarizing revenues and expenditures for the preceding Fiscal Year, events during the preceding Fiscal Year, total incentive fees earned (including names of acts) pursuant to the management agreement, total naming rights sold, accomplishments and plans related to advertising, marketing and programming, compliance with the minimum acceptable activity level set forth in the management agreement, and such other data and information as the Mayor and City Council may require.

Manager is also required to present this annual report in person and respond to any inquiries regarding the information presented at a City Council meeting in December of each Fiscal Year during the term unless otherwise agreed upon by the parties in writing.

The duties listed in red above are non-exhaustive and general in scope. Specific provisions outlining Manager’s duties, performance standards and payment-related terms will be developed and finalized upon completion of the RFP process.

3. Adding or Deleting Property to or from Mahaffey Theater Facility; Use of Museum Lease Lot 3.

A. Adding or Deleting Property to or from Definition of Mahaffey Theater Facility.

1. Upon notice to Manager at any time, the City, in its sole and absolute discretion, has the right to add property to the definition of Mahaffey Theater Facility. If the addition of property to the definition of Mahaffey Theater Facility will not materially or adversely increase Manager’s duties pursuant to the management agreement, that additional property is subject to the management agreement and

Exhibit A will be deemed amended accordingly. If the addition of property to the definition of Mahaffey Theater Facility will materially or adversely increase Manager’s duties pursuant to the management agreement, the parties must attempt to establish appropriate adjustments in the fees and other City contributions identified in the management agreement. If the City and Manager mutually agree to adjustments in the fees and other City contributions, such adjustments and any other necessary modifications to the management agreement (e.g., changes to Exhibit A) must be set forth in an amendment to the management agreement made in accordance with the management agreement and subject to City Council Approval. If the City and Manager do not agree on adjustments in the fees and other City contributions, Manager must continue to perform its duties and obligations pursuant to the management agreement and the definition of Mahaffey Theater Facility will remain unchanged but Manager will not be required to manage, operate, maintain or market any additional property.

2. Upon notice to Manager at any time, the City, in its sole and absolute discretion, has the right to delete property from the definition of Mahaffey Theater Facility. If the deletion of property from the definition of Mahaffey Theater Facility will not materially or adversely affect Manager’s duties pursuant to the management agreement, Exhibit A will be deemed amended accordingly. If the deletion of property from the definition of Mahaffey Theater Facility will materially or adversely affect Manager in the performance of its duties pursuant to the management agreement, the parties must attempt to establish an appropriate adjustment in the fees and other City contributions identified in the management agreement. If the City and Manager mutually agree to adjustments in the fees and other City contributions, such adjustments and any other necessary modifications to the management agreement (e.g., changes to Exhibit A) must be set forth in an amendment to the management agreement made in accordance with the management agreement and subject to City Council Approval. If the parties are unable to mutually agree to adjustments in the fees and other City contributions, either party may terminate the management agreement upon one hundred eighty

(180) days prior written notice to the other party.

3. Use of Museum Lease Lot 3. Subject to the Museum Lease (including those specific requirements and conditions set forth in section 3.8.1.3 of the Museum Lease), the City grants Manager the right to use Museum Lease Lot 3 for parking; provided, however that Manager will coordinate with the Museum Organization regarding Manager’s use of Museum Lease Lot 3. The City has the right to suspend or terminate Manager’s right to use Museum Lease Lot 3 at any time upon twenty-four (24) hours written notice to Manager. Manager’s duties and obligations related to use of the Mahaffey Theater Facility (including but not limited to insurance and indemnification obligations) also applies to Manager’s use of Museum Lease Lot

3. For purposes of this subparagraph, the City may send written notice to Manager via email to the contact in the Notices provision of the management agreement.

4. Sole and Absolute Discretion. The City has sole and absolute discretion to exercise its rights set forth in this paragraph.

4. Florida Orchestra. Recognizing the City’s intent for the Mahaffey Theater Facility to continue to be a location for Florida Orchestra, Inc. (the “Orchestra”), Manager agrees that such programming must be assigned to the highest category of booking priority. The City and the Orchestra are working collaboratively on the potential future development of an expansion on the Mahaffey Theater Facility property to support the Orchestra’s plan to develop a Center for Music Education and Innovation that will include a rehearsal space for the Orchestra.

5. Grand Prix Race Agreement.

A. Agreement Subject to Grand Prix Race Agreement. The management agreement is subject to current and future agreements with Race Promoters for the conduct of racing events in downtown St. Petersburg (any such agreement is hereinafter referred to as “Grand Prix Race Agreement”) and all rights (exclusive rights and other rights) and authority granted thereunder, including but not limited to rights related to use of Race Event Facilities which include the Mahaffey Theater Facility. Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained in the management agreement, Manager acknowledges and agrees that (i) the Mahaffey Theater Facility and Manager’s business operations will be impacted by Race Events and other activities that will occur before, during and after Race Events (e.g., construction, set-up and tear down activities), (ii) the Mahaffey Theater Facility will be closed to the general public for certain periods of time in connection with Race Events (although ticket holders for Race Events may have access to the Mahaffey Theater Facility), and (iii) Manager is not entitled to any compensation for any impact to business operations related to any Race Event (although there must be reimbursement for certain out-of-pocket costs and expenses incurred by Manager in connection with Race Events, as determined by the City). In the event of a conflict or ambiguity between the management agreement and any Grand Prix Race Agreement, the Grand Prix Race Agreement must control. As used herein, the terms “Race Event,” “Race Event Facilities” and “Race Area” has the meanings set forth in the Grand Prix Race Agreement.

B. Grand Prix Race Event. In the absence of a written agreement between Manager and the Race Promoter which specifically provides otherwise, Manager must comply with all regulations established by the City that are applicable to the Mahaffey Theater Facility during Race Events, including but not limited to the following:

(1) Temporary Outdoor Uses. Temporary outdoor uses are prohibited.

(2) Temporary Food and Retail Uses. All uses, including but not limited to retail and food uses, operating from temporary or portable structures or vehicles such as semi-trailers, step vans, recreational or other vehicles with cooking facilities, are prohibited.

(3) Outdoor Sales. Sale or distribution of food or any other item outside the lobby or atrium area of the Mahaffey Theater is prohibited.

(4) Temporary Structures. Temporary structures, including tents, are prohibited.

(5) Temporary Signage. Temporary signs, including signs on vehicles and buildings, visible from a street right-of-way and/or the Race Area are prohibited. Any sign erected must be a permanent sign which complies with the management agreement and has received all required permits.

(6) Streamers, Pendants and Banners. Streamers, pennants, banners and inflatables, located within the Mahaffey Theater Facility, which are visible from any street right-of-way and/or the Race Area, are prohibited.

6. Use Agreements.

A. Parties to Use Agreements. All Use Agreements must be entered into between Manager (in its own name) and the user (e.g., performer).

B. Negotiation and Terms and Conditions. Manager is responsible for negotiating the terms and conditions of all Use Agreements, provided that such terms and conditions are consistent with the management agreement, and further provided that Manager must ensure that all Use Agreements require the user to (i) name the Indemnified Parties (as hereinafter defined) as additional insureds on all insurance required to be obtained by the user pursuant to the Use Agreement, (ii) defend and indemnify the Indemnified Parties against any and all Claims (as hereinafter defined) related to the user’s use of the Mahaffey Theater Facility, and (iii) acknowledge that the City is not liable in the event Manager defaults on any Use Agreement.

C. City Tickets. All Use Agreements for publicly ticketed events must contain a provision requiring the user to provide ten (10) tickets to the City for the event, at no cost to the City, for the promotion and development of the City, but not for resale. The City will inform Manager if the City requires less than ten (10) tickets for an event.

D. Use Agreements Assignable to City. All Use Agreements must be assignable to the City, at the City’s option. All Use Agreements must incorporate language to carry out this provision. Notwithstanding the foregoing, Manager may utilize a standard form Use Agreement that must provide for automatic assignment of such Use Agreement to the City upon expiration or earlier termination of the management agreement, provided that Manager obtains Mayor Approval and City Attorney approval of such standard form Use Agreement and further provided that Manager does not modify such standard form Use Agreement without Mayor Approval and City Attorney approval. Except as provided herein, Manager must not enter into a Use Agreement that provides for automatic assignment of such Use Agreement to the City upon expiration or earlier termination of the management agreement.

E. Approval. Except as otherwise set forth in the management agreement and provided that the Use Agreements are in accordance with the terms and conditions of the management agreement, Manager is not required to obtain Mayor Approval or City Council Approval of Use Agreements. Notwithstanding the foregoing, Manager must obtain Mayor Approval of each Use Agreement extending beyond the expiration date of the management agreement.

F. Other Agreements. Manager has no right or authority to enter into any agreement for the use of the Mahaffey Theater Facility or any portion thereof except as specifically provided in this paragraph.

7. Lease or License Agreements. Manager is not permitted to enter in any Lease or License

Agreements without Mayor Approval and City Council Approval.

8. Use of Mahaffey Theater Facility at Direction of Mayor.

A. Use By Local Civic and Nonprofit Organizations. At the direction of the Mayor or upon resolution of City Council, upon advance notice and subject to availability, Manager must provide use of the Mahaffey Theater Facility, or any portion thereof, to local civic and nonprofit organizations at reduced rates, which will not exceed $_____________ per Fiscal Year. All event related expenses, including but not limited to ushers, ticket-takers and security, must be paid by the organization using the Mahaffey Theater Facility, unless the City notifies Manager in writing that the City is paying for such event related expenses.

B. City Use. The City has the right to use the Mahaffey Theater Facility, or any portion thereof, upon advance notice and subject to availability, for governmental purposes including but not limited to meetings, seminars, and training classes, without the payment of any rental or use fee, except that direct out-of-pocket expenses incurred in connection with such uses (not including expenses already incurred in connection with the daily operation of the Mahaffey Theater Facility, e.g. ordinary utilities) will be paid to Manager by the City within thirty (30) days after receipt of an invoice from Manager.

C. Scheduling. Except as otherwise provided in the management agreement, the City may not schedule use of the Mahaffey Theater Facility pursuant to subparagraph A. or B.

above if such use will conflict with paying events previously booked by Manager or dates of pending booking offers made by Manager prior to the City’s attempt to schedule use of the Mahaffey Theater Facility. Manager must not allow a booking offer to remain open for more than sixty (60) days from the offer date.

9. Inspections, Repairs, Maintenance and Improvements.

A. Inspections, Repairs and Maintenance. Manager must make ongoing inspections of the Mahaffey Theater Facility and perform all necessary repairs and maintenance, provided that the parties respective obligations for Costs of Maintenance and Repairs must be as set forth in the management agreement. In the event that Manager discovers any dangerous condition during any inspection, Manager must immediately repair or correct such dangerous condition or, if Manager believes it is not required to repair or correct such dangerous condition pursuant to the management agreement, Manager must immediately notify the Mayor of such dangerous condition. Without limiting the generality of Manager’s indemnification obligations, Manager’s failure to comply with this subparagraph A. constitutes a breach of the management agreement and Manager must defend and indemnify the Indemnified Parties (as hereinafter defined) for all Claims (as hereinafter defined) alleged or claimed to have arisen out of or in connection with such breach.

B. Repairs. Manager may authorize and contract for repairs to the Mahaffey Theater Facility in accordance with the terms and conditions of the management agreement.

C. Capital Improvements. Subject to City Council Approval, the City will fund an average of $__________________ each Fiscal Year during the management agreement term for Capital Improvements at the Mahaffey Theater Facility. The Mayor will notify Manager on or before October 1 each year during the management agreement term that City Council Approved funding for Capital Improvements at the Mahaffey Theater Facility as required above for the following Fiscal Year. Manager must provide input on Capital Improvement projects, provide contractors with the required access to the Mahaffey Theater Facility, assist the City in scheduling Capital Improvement projects, and conduct site coordination activities for Capital Improvement projects.

D. Structural Modifications and Repairs. All structural modifications and repairs to the Mahaffey Theater Facility are subject to Mayor Approval or City Council Approval, as required.

E. Structural Soundness and Sound Operating Condition. In addition to Manager’s other obligations related to inspections, maintenance, repair and improvements, Manager must immediately notify the Mayor of any condition of which it becomes aware which may impair or threatens to impair the structural soundness or sound operating condition of the Mahaffey Theater Facility.

F. Laws Related to Public Buildings and Public Works. Manager acknowledges that there are Laws applicable to the construction of public buildings and repairs upon public buildings and public works, including but not limited to Laws requiring execution and delivery of a performance and payment bond (e.g., Section 255.05, Florida Statutes).

Without limiting the generality of the Compliance with Laws provision in the management agreement, Manager must comply and cause its subcontractors to comply with such Laws and obtain and cause its subcontractors to obtain all required performance and payment bonds (regardless of whether the contract for construction or repair is between Manager and the contractor or the contractor and the City).

10. Contracts and Leases Assignable to City. All contracts and leases for goods or services between Manager and the contracting party must be assignable to the City, at the City’s option. All such contracts and leases must incorporate language to carry out this provision.

Manager must not enter into a contract or lease for goods or services that provides for automatic assignment of such contract or lease to the City upon expiration or earlier termination of the management agreement, unless Manager obtains Mayor Approval and City Attorney approval of such contract or lease. Manager must not enter into any contracts and leases for goods or services extending beyond the expiration date of the management agreement

11. Employees.

A. Staff. Manager must hire such staff as is necessary and proper to carry out the terms and conditions of the management agreement. Manager acknowledges and agrees that such staff will not (i) be considered employees of the City for any purpose; (ii) have any authority to act on behalf of the City or as the City’s agent; or (iii) receive any payment or benefit, monetary or non-monetary, including but not limited to worker's compensation benefits from the City.

B. Background Checks. Manager is responsible for conducting all necessary background checks (including but not limited to criminal background checks) on its employees and for directing its subcontractors to conduct all necessary background checks on subcontractors’ employees. Manager should consider the results of background checks in all employment decisions, which employment decisions will be at Manager’s discretion (provided such decisions are in accordance with the management agreement).

12. Books and Public Records.

A. Definitions. For purposes of this paragraph, the following terms have the meaning ascribed to them below:

(i) “City Designated Records” means books and records or portions thereof that the City has designated in writing as confidential or proprietary and therefore exempt from disclosure under Florida Public Records Laws.

(ii) “Manager Designated Records” means books and records or portions thereof that Manager has designated in writing as a trade secret as defined by Florida Public Records Laws or as confidential or proprietary and therefore exempt from disclosure under Florida Public Records Laws.

(iii) “Florida Public Records Laws” means the Florida laws regarding public records, including but not limited to Chapter 119, Florida Statutes.

B. Manager Obligations regarding Books and Public Records. Manager must keep and maintain and make available for examination and audit (including but not limited to independent auditors retained by the City), accurate books and records, including financial records related to the management agreement, in accordance with the management agreement and generally accepted accounting principles.

Additionally, Manager must comply with Florida laws regarding public records, including but not limited to Chapter 119, Florida Statutes (collectively, “Florida Public Records Laws”). Without limiting the generality of the foregoing, Manager must:

(i) keep and maintain public records related to the management agreement for the retention periods set forth in the most recent General Records Schedule GS1-SL for State and Local Government Agencies, or the retention period required pursuant to Florida Public Records Laws, whichever is longer,

(ii) subject to subparagraph D. below, make all public records related to the management agreement open to inspection or copying by the City and its professional advisors within a reasonable time after a request not to exceed three (3) business days,

(iii) at the City’s request, provide all electronically stored public records to the City in a format approved by the City,

(iv) ensure that the City Designated Records and Manager Designated Records are not disclosed except as required by applicable Laws for the management agreement term and following the expiration or earlier termination of the management agreement, and

(v) comply with all other applicable requirements of Florida Public Records Laws.

C. Informational Statement. IF MANAGER HAS QUESTIONS

REGARDING THE APPLICATION OF FLORIDA PUBLIC

RECORDS LAWS AS TO MANAGER’S DUTY TO PROVIDE

PUBLIC RECORDS RELATING TO THIS AGREEMENT,

CONTACT THE CITY CLERK’S OFFICE (THE CUSTODIAN

OF PUBLIC RECORDS) AT (727) 893-7448,

CITY.CLERK@STPETE.ORG, OR 175 FIFTH ST. N., ST.

PETERSBURG FL 33701.

D. Manager Designated Records.

(i) Manager must act in good faith when designating records as Manager Designated

Records.

(ii) At the time of disclosure of Manager Designated Records to the City, Manager must provide the City with a general description of the information contained in the Manager Designated Records and a reference to the provision of Florida Public Records Laws which exempts such Manager Designated Records from disclosure.

(iii) Except in the case of a public records request as provided in subparagraph D(iv) below, the City will not make copies of Manager Designated Records or disclose Manager Designated Records to anyone other than City employees, officials and professional advisors with a need to know the information contained in the Manager Designated Records.

(iv) If the City receives a public records request for any Manager Designated Records, the City will notify Manager of such request and will not disclose any Manager Designated mailto:City.Clerk@stpete.org

Records if the City Attorney or their designee reviews the Manager Designated Records and determines the Manager Designated Records appear to be exempt from disclosure pursuant to Florida Public Records Laws. If the City Attorney or their designee believes that any Manager Designated Records appear not to be exempt from disclosure under Florida Public Records Laws, the City Attorney or their designee will notify Manager of such belief and allow Manager an opportunity to seek a protective order prior to disclosure by the City. Within a reasonable time not to exceed five (5) business days after receiving such notification from the City Attorney or designee, Manager must either notify the City Attorney or designee that it withdraws the designation and does not object to the disclosure, or Manager must file the necessary documents with the appropriate court seeking a protective order. If Manager does not seek a protective order within the required time frame or if the protective order is denied, the City Attorney or their designee will have the sole and absolute discretion to disclose the requested Manager Designated Records as the City Attorney or their designee deems necessary to comply with Florida Public Records Laws.

(v) By designating books and records as Manager Designated Records, Manager agrees to defend at its expense, indemnify, and hold harmless the City Indemnified Parties from and against any and all Claims, demands and actions (whether or not a lawsuit is commenced), including but not limited to any award to a plaintiff for damages and costs and attorneys’ fees incurred by a plaintiff, and for costs and attorneys’ fees (including those of the City of St. Petersburg City Attorney’s Office) incurred by the City, arising out of or in connection with Manager designation of books and records as Manager Designated Records.

E. Survival. Manager’s obligations under this paragraph survive the expiration or earlier termination of the management agreement.

13. Performance Audit. The Mayor or City Council may at any time request an independent management audit or review and inspection of the Mahaffey Theater Facility and Manager.

14. Bond Restrictions and Compliance with Federal Tax Law.

A. Bonds Govern and Control. Manager acknowledges that, to the extent applicable, the Bonds govern the management, operation, maintenance and marketing of the Mahaffey Theater Facility.

B. Manager’s Compliance with Instructions. Manager agrees to follow the written instructions of Bond Counsel with respect to the operation of the Mahaffey Theater Facility to ensure that no use of the Mahaffey Theater Facility will be made which will cause the interest on any Bonds to be included in gross income for purposes of federal income taxation.

15. Termination.

A. Without Cause for Destruction or Damage; Lack of Funds. The Mayor (subject to

City Council Approval) or Manager may terminate the management agreement without penalty to the City or Manager, without cause, upon thirty (30) days prior written notice, in the following instances:

(1) Destruction or Damage. The Mayor or Manager may terminate the management agreement if the Mahaffey Theater Facility or any portion thereof is damaged or destroyed at any time during the term by fire, casualty or other cause, to such an extent that it will be either impossible or impracticable, in the Mayor’s judgment, to continue to operate the Mahaffey Theater Facility for its intended purposes; or

(2) Funds. The Mayor or Manager may terminate the management agreement if sufficient funds are not available for fees owed pursuant to the management agreement, or any other financial obligation of the City contemplated by the management agreement.

B. Without Cause After Three Years. The Mayor (subject to City Council Approval) may terminate the management agreement at any time after the end of the third year of the term of the management agreement. In the event of such termination, the City will accept assignment of each Use Agreement entered into between Manager and a user prior to the effective date of termination provided that such Use Agreement is in accordance with the terms and conditions of the management agreement and further provided that such Use Agreement does not impose any obligation or liability (financial or otherwise) upon the City other than the obligation to provide user with the use of a portion of the Mahaffey Theater Facility (as identified in the Use Agreement) on the date and time set forth in the Use Agreement.

C. With Cause/Cure. The Mayor (subject to City Council Approval) or Manager may terminate the management agreement for cause if the other party materially breaches any term or condition of the management agreement and does not cure such breach within thirty (30) days following notice specifying the breach. Without limiting the generality of the foregoing, each of the following must constitute a material breach of the management agreement:

(1) If Manager fails to submit any Submittal required pursuant to the management agreement which is in substance and form acceptable to the Mayor on or before the time stated in the management agreement or otherwise Approved by the Mayor; or

(2) If Manager fails to meet the minimum acceptable activity level.

D. With Cause/No Cure. The Mayor (subject to City Council Approval) may terminate the management agreement for cause with no right of Manager to cure, for failure of Manager to comply with paragraphs 5, 14, 22, 25, 34, 36, 49, 50 herein or for material misrepresentation, theft, criminal misconduct amounting to a felony, gross negligence, willful or wanton misconduct, fraud, or breach of fiduciary responsibility. Notwithstanding the foregoing, the Mayor may grant Manager a period to cure a breach of one the above-referenced paragraphs if the Mayor determines a cure period is reasonable under the circumstances, in which case Manager must cure the breach within the period established by the Mayor. If the Mayor establishes a cure period as provided above and Manager does not cure the breach within such period, the Mayor (subject to City Council Approval) may terminate the management agreement.

16. Obligations Upon Termination or Expiration. Upon expiration or earlier termination of the management agreement, Manager must:

A. Vacate. Vacate the Mahaffey Theater Facility.

B. Inventory. Provide a complete Inventory Inspection and Status Report.

C. Settle Accounts. Settle all accounts and outstanding bills.

D. Surrender of Records, Accounts and Property. Except as provided below, peaceably surrender and transfer to the City, even though property of the City, all books, records, reports, and documents (including but not limited to all contracts, subcontracts, accounting and financial records, Booking Business Records, marketing databases, ticket sales databases, and box office databases), and all property, tangible or intangible, used in the operation of the Mahaffey Theater Facility or purchased or leased with proceeds of the Bonds or with funds of the City.

Manager is not required to surrender or transfer to the City any corporate manuals or materials of Manager that are not developed specifically for the Mahaffey Theater Facility, nor any licenses, equipment, tangible or intangible property that Manager acquired solely with Manager’s funds and that are not attached to the Mahaffey Theater Facility.

17. No Payment of Fees During Breach. During any period of time in which Manager is in breach of the management agreement and has been given notice to cure, the City may postpone the payment of all fees. The postponed fees will be paid when the breach has been cured, provided such fees are otherwise due and required to be paid by the City pursuant to the management agreement.

18. Insurance.

A. Purchase of Insurance. Manager must obtain and maintain continuously in effect at all times the minimum insurance as set forth below. All insurance policies must be satisfactory to the Mayor. At a minimum, policies must be written by insurance companies authorized and licensed to conduct business in the State of Florida and rated at least an “A-, VIII” by A.M. Best or another similar rating agency Approved by the Mayor. The following types and amounts of insurance are the minimum requirements established by the Mayor. The City does not represent that such types and coverage amounts are sufficient to protect the Manager’s interests or liabilities and that these insurance requirements should in no way be interpreted to limit Manager’s liability under the management agreement. The types of insurance coverages and limits of coverages are subject to change as the Mayor may require.

(1) Commercial General Liability. Commercial General Liability Insurance in an amount of at least $5,000,000 per occurrence with a $5,000,000 general aggregate. Policy must be in occurrence form and include coverage for bodily injury and property damage liability for premises (entire Mahaffey Theater Facility and Museum Lease Lot 3), contractual liability assumed under the management agreement.

(2) Automobile Liability. Automobile Liability Insurance in an amount of at least $1,000,000 combined single limit. Coverage must include bodily injury and property damage liability arising out of ownership or use of any automobile, including both owned and non-owned and hired automobiles and employee non-ownership use.

(3) Workers’ Compensation and Employers Liability. Workers’ Compensation Insurance in compliance with the Florida Statutes. Employers Liability coverage with minimum limits of $100,000 each accident, $100,000 each employee, and $500,000 policy limit for disease.

(4) Professional Liability. Professional Liability Insurance with coverage limits of at least $1,000,000. If coverage is on a “Claims Made” basis, it must include a retroactive date of coverage beginning no later than the date the management agreement is executed.

(5) Fidelity/Crime Insurance. Fidelity/Crime insurance with a minimum limit of $1,000,000, including coverage for employee theft, computer fraud, and other aspects of Manager’s operations. The City must be named as a loss payee if insuring through a Fidelity Bond.

(6) Cyber Liability. Cyber Liability (Network Security/Privacy Liability) Insurance with a minimum limit of $1,000,000 per occurrence. Coverage must include (i) cloud computing and mobile devices; (ii) protection of private or confidential information, whether electronic or non-electronic; and (iii) network security and privacy. Coverage must also include liability for (i) system attacks; (ii) digital asset loss, denial, or loss of service; (iii) introduction, implantation, or spread of malicious software code (iv) security breach; and (v) unauthorized access and use. Coverage must also include all related expenses for regulatory action, notification, and credit monitoring expenses. Policy must provide coverage for media liability, including infringement of copyright, trademark, and trade dress.

(7) Liquor Liability. Liquor liability insurance of at least $1,000,000.

B. Additional Insureds. Manager’s insurance policies, except for Workers’ Compensation insurance, professional liability insurance and crime insurance, must be endorsed to name the Indemnified Parties (as hereinafter defined) as additional insureds.

C. The manager may, at its option, provide the limits of liability as set out herein by a combination of the policies described herein, including Umbrella or Excess Liability Insurance Policy. Any Excess or Umbrella policy must provide coverage on at least a following form basis.

D. If the insurance carried by the Manager has broader coverage than required in the management agreement, then that broader coverage, including but not limited to additional insured requirements, is the requirement in the management agreement. If the Manager’s insurance limits are greater than the minimum limits set forth herein, then the Manager’s insurance limits are the required limits in the management agreement.

E. Evidence of Insurance. Upon issuance, Manager must provide the Mayor with original certificates of insurance on standard ACORD forms, or certified copies thereof, naming the Indemnified Parties as additional insureds. Manager must retain custody of the originals of all insurance policies and endorsements. Upon request, Manager must provide the Mayor with certified copies of complete insurance policies with all endorsements.

F. Notice. Insurance must be documented in certificates of insurance which provide the Mayor at least thirty (30) days advance written notice of cancellation, non-renewal or material change in coverage. Renewal certificates must be provided to the Mayor annually.

G. Waiver of Subrogation. Manager hereby waives any right to recover against the Indemnified Parties for Claims covered by the insurance required to be maintained by Manager pursuant to the management agreement. This provision is intended to waive fully, and for the benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier. Manager must cause each required insurance policy to be written to provide that the insurance company waives all rights of recovery by way of subrogation against the Indemnified Parties.

H. Claims. Manager must promptly investigate or cause to be investigated all accidents and claims for personal injury or damage relating to or arising out of the management, operation or maintenance of the Mahaffey Theater Facility, and must report to the City’s Risk Management Department all such accidents and claims. Manager also must investigate or cause to be investigated all physical damage to the Mahaffey Theater Facility and must report to the Mayor all such damage, together with the estimated cost of repair. Unless otherwise directed by the Mayor, Manager must make all necessary repairs to the Mahaffey Theater Facility (not including Capital Improvements except to the extent provided in the management agreement). In addition, Manager must prepare or cause to be prepared any and all reports or other documentation required by any insurance company or the Mayor as a result of any accident, claim or damage, and must submit the same to the Mayor.

I. Primary and Noncontributory. All Manager’s insurance must be on a primary and noncontributory basis.

J. Property and Equipment of Manager. Manager is solely responsible to obtain insurance coverage for any and all property and equipment of Manager used, stored, or otherwise located at the Mahaffey Theater Facility.

K. The City reserves the right to change or alter the above insurance requirements as it deems necessary.

19. Release and Indemnification.

A. Manager voluntarily assumes all risks or accidents, injury and damage to persons and property and hereby releases and discharges and City and its employees, agents, officers, elected and appointed officials, and volunteers (collectively, “Indemnified Parties”) from every claim, liability, and demand of any kind. Further, Manager must defend at its expense, pay on behalf of, hold harmless and indemnify the Indemnified Parties from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and damages (collectively, “Claims”), whether or not a lawsuit is filed, including but not limited to costs, expenses and attorneys’ and experts’ fees at trial and on appeal and Claims for damage to property or bodily or personal injuries, including death at any time resulting therefrom, sustained by any person or entities, which Claims are alleges to have arisen out of or in connection with, in whole or in part, Manager’s management, operation, maintenance and marketing of the Mahaffey Theater Facility or performance of the management agreement, notwithstanding that such Claims were caused by or alleged to have been caused by, in whole or in part, the negligence of any of the Indemnified Parties.

B. Without limiting the generality of the foregoing, Manager specifically…