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2015-14 FACILITY MANAGEMENT AND PROMOTION LICENSE AGREEMENT 714 THIS AGREEMENT, entered into this l day of lay►e...a3-3, 2015 by and between the City of Clermont, hereinafter referred to as "City," and E&M Theatricals Inc., a Florida For- profit corporation, hereinafter referred to as "Licensee," whose address is attn.: Ned McLeod, 3853 Watercrest Drive, Suite B, Longwood, FL 32779. WITNESSETH: WHEREAS, the City is the owner of a certain public facility located in Clermont, Florida, commonly known as Clermont Arts & Recreation Center (may be referred to as the "ARC"); and WHEREAS, Licensee desires to utilize certain facilities located at the Clermont Arts & Recreation Center for the purposes hereinafter set forth; and WHEREAS, the City, pursuant to its municipal authority as set forth in Chapter 166, Florida Statutes, may provide the general public with public performing arts and cultural facilities, including such programs as Licensee desires to promote: and WHEREAS, Licensee desires to enter into this Agreement for the purposes set forth herein and with the intent of demonstrating a professional program and staffing that can be ultimately assembled and operated by the City. NOW, THEREFORE, in consideration of the covenants herein contained, it is mutually agreed between the parties as follows: 1. Term and Termination. The term of this Agreement shall commence on February 1, 2015 and terminate on July 31, 2017 (the "Initial Term," prior to any extensions or renewals). The Agreement may be renewed for additional periods thereafter based on the mutual agreement of the parties after considering and reviewing Licensee's activities, programs and attendance statistics during the thirty (30) day review period commencing no later than May 15, 2017, such renewals and extensions (if any) comprising the "Term" of this Agreement. Either party may terminate this Agreement for cause at any time upon delivering written notice to the other party no later than thirty (30) days prior to the effective date of such termination. City, may, upon sixty (60) days written notice to Licensee, terminate the Agreement for any reason. Upon termination of the Agreement for any reason, the Licensee shall, as of the date of the notice of termination, refrain from further scheduling, booking, reserving or planning any use of the Facilities that will occur after the effective date of the termination. In any event of termination, any show, event, performance, production or other event scheduled by Licensee prior to the notice date of the termination and to occur after the effective date of the termination shall be permitted to occur, as scheduled, and in 1 accordance with the terms of this Agreement. 2. Use of Property. The City agrees to exclusively permit Licensee to utilize the Premises for the purpose of providing theatrical and musical shows and performances to the general public, including (without limitation) arts events such as arts festivals, workshops, speaking engagements, private functions and fundraisers for charitable organizations, concerts, arts competitions, film screenings, theatrical readings, children's programs and arts centered celebration events. The Premises and the specific area subject to the License granted herein shall be defined as the theaters, and related support facilities for the performing arts portions of the Premises, including agreed accessory areas such as meeting rooms/production offices, media rooms and equipment, lighting and sound equipment storage/control areas, waiting areas (or green rooms), rehearsal spaces, lobby areas, kitchen and food staging areas, parking, storage areas, back stage and connecting hallways, loading areas, , bathrooms and reasonable supply closets of the ARC. (See attached Exhibit "C," marking the identified areas.) Licensee's use of the Premises shall be in accordance with and subject to the terms and conditions set forth herein and as more particularly described in Exhibit"A" attached hereto and incorporated herein. 3. Non-Exclusive Rights Outside of Licensee's Use. City agrees that it shall not engage, hire or retain any promoter, manager or similar entity to schedule or promote any event in the Premises during the Term (or extensions or renewals thereof) that directly competes with the rights granted herein to Licensee. Notwithstanding the foregoing, nothing herein shall prohibit City from authorizing the use of, or renting the ARC areas not included in the Premises; or, utilizing the Premises, subject to prior schedule availability being determined with Licensee, to any individual or entity for purposes of any event not booked by Licensee, by example:, a wedding, local school event, or any non-professional theatrical or musical show or performance entirely presented by a citizens non-professional group, such as a local school, church or charity. Provided however, City expressly agrees that it will not book an event to occur on the Premises without first contacting Licensee to coordinate applicable scheduling. This Agreement is specifically conditioned upon Licensee use of the Premises in such a manner that Licensee's shows, performances and productions (etc.) hold priority in scheduling and are open to all members of the general public who wish to attend. 4. Assignment. This Agreement may not be assigned or transferred in any manner by Licensee. 5. Indemnification. The City and Licensee will look entirely to the third-party producers with whom it transacts business for the use of the Premises to provide all necessary insurance and indemnities related to their use of the Premises. To the extent not covered by the indemnification and insurance provided by third-parties utilizing the Premises through the business transacted with Licensee, Licensee shall defend, indemnify and hold harmless the City from and against all claims, damages, lawsuits, liabilities, losses and expenses, including reasonable attorney's fees and costs, arising out of or directly resulting from the Licensee's use of the Premises. Such indemnification shall include all 2 claims of Licensee's employees, guests and participants. Nothing herein shall be construed or act as a waiver of any sovereign immunity that City may enjoy. 6. Insurance. Licensee shall cause all third-parties with whom it transacts business for the use of the Premises to present in advance adequate Certificates of Insurance and proof of event casualty and liability coverage,-including any potential risks arising from intellectual property or privacy claims, naming the City as an additional insured for events occurring in the Premises, , as set forth herein and in Exhibit "B" attached hereto and incorporated herein. All such insurance shall be evidenced by a Certificate of Insurance which must be submitted to, and approved by, the City prior to any use by Licensee of the Premises under this Agreement. The City shall be named as an additional insured on the insurance policy, which shall be noted on the Certificate of Insurance and the City shall be provided with a thirty (30) day, prior written notice in the event of cancellation, non-renewal or adverse change to such policies. Failure to comply with any insurance requirement, without timely cure, shall cause immediate cancellation of the event related to such third-party's use of the Premises. In addition, Licensee shall keep and maintain during the Term standard business liability insurance (including Workers Compensation) covering its representatives while working in the ARC. Nothing herein shall be construed or act as a waiver of any sovereign immunity that City may enjoy. 7. Communication. Licensee shall advise City in advance of the name and contact information for Licensee's designee for communication purposes between the City and the Licensee. All communication by the Licensee with the City must be made through the Licensee's designee. Communication, information or requests for service by Licensee must be made to the City's City Manager, or his/her designee. 8. Maintenance of Records; Audit. For a period ending three (3) years after the expiration or termination of this agreement, Licensee shall make all records and documents relating to this agreement available for inspection and copying upon reasonable notice by the City or any agent designated by the City at the offices of Licensee during its regular business hours. Notwithstanding anything to the contrary stated above, Licensee recognizes that certain documents that it may maintain in accordance with the use of the Premises and this Agreement may be Public Records under the law of the State of Florida and, therefore, Licensee agrees that it shall comply with all applicable terms of said law to the greatest extent possible. 9. Inspection Rights and General Right of Entry by City. The City shall have the unrestricted right at all times to enter On the Premises used by Licensee to inspect the premises to ensure Licensee's compliance with the terms and conditions contained herein. This right shall include, but not be limited to, the right to enter into any event or performance. 10. Maintenance The City will maintain and repair the Premises in accordance with the 3 City's routine maintenance policies and plans to keep the Premises habitable and its systems in good working order. Notwithstanding the foregoing, Licensee, at its expense, shall be responsible for regular cleaning of the Premises after any and all events or performances contemplated herein. 11. City's Right to Usage. [See Paragraphs 1, 2 and 3, above.] 12. Enforcement of Use Policies. All persons entering Premises are subject to the policies formally adopted and set forth by the City, which shall be distributed to Licensee in printed form. The Licensee is charged with requiring compliance to those policies by the participants in Licensee's programs and events. Uniformed law officers may be called upon to enforce applicable City ordinances. The City may ban any program participant or event attendee from admission to the Premises for such length of time as the City may deem necessary. 13. Compliance with Applicable Laws. Licensee will comply with all applicable laws, ordinances, rules, regulations, standards and lawful orders of any public authority. 14. License Only. This agreement is a license for temporary use only and creates no possession or ownership interest in the Licensee, or any use of the Premises beyond the scope herein granted by the City. The term "Licensee" is used in this document merely for descriptive convenience and in no way creates or implies any possessory interest whatsoever. 15. Signs/Banners. All signs and banners to be used by Licensee shall be approved in advance by City and installed, erected or hung in accordance with the City's specifications. Any unapproved signage may be immediately removed by the City. 16. Improvements. Licensee shall not make any alterations or improvements to the Premises, without prior written approval from the City. 17. Amendments. This agreement may be amended only through a written document subsequently executed by both parties. 18. Notice. All notices required to be given under this agreement shall be deemed sufficient to each party when delivered by United States Mail to the following: As to the City: 685 West Montrose Street Clermont, FL 34711 Attn.: Darren Gray, City Manager 4 As to the Licensee: E&M Theatricals, Inc. Jeanette C. Linders, President P.O. Box 917412 Attn.: Ned McLeod, managing director 19. Governing Law/Venue. This agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any action hereunder shall be exclusively in Lake County, Florida. 20. Signatory. Each signatory below represents and warrants that he or she has full power and is duly authorized by their respective party to enter into and perform this Agreement. Such signatory also represents that he or she has fully reviewed and understands the above conditions and that the entity on whose behalf they are signing intends to fully abide by the conditions and terms of this Agreement as stated. 21. City's Provision of ARC Theatre Operations Manager. The City affirms that the position of"Theatre Operations Manager" for the Premises is a key position, critical to the successful operations and relationship between the parties. Both parties must agree on the selection of that person, or Licensee may elect to terminate this Agreement and invoice the City for reimbursement of any expenses or deposits related to events detrimentally affected by the resulting vacancy of that key position. As of execution of this Agreement, the parties have agreed upon the engagement by the City of Gary DeMumbrum for this position commencing no later than March 2, 2015 on terms agreeable between DeMumbrum and the City. In support of this critical arrangement, Licensee agrees to make additional payments to the City for the use of the Premises that specifically cover the amount of DeMumbrum's actual gross salary during Licensee's use of the Premises, or otherwise upon such terms mutually and subsequently agreed by the parties. The scope of responsibilities of DeMumbrum in this position includes the description attached as Exhibit"B." 22. Entire Agreement. This agreement contains the entire agreement between the parties. No promises, representations, warranties or covenants not included herein has been or shall be relied upon by either party. Any modifications, additions, or amendments hereto must be in writing and subsequently signed by all parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this a 7 71f- day of 2015. ATTT: CITY OF . . RMONT A A/_ BY: -ol-r/ _�� / racy Ackroyd, City Clerk Gail L. Ash, Mayo DATE: , , , p 5 ATTEST: E&M Theatricals, Inc. AvIL.4 A / TITLE: Je. •tte C. 9/ ,/ )/e , 'r�i, ent DATE: ; E: 6 Exhibit A Facility Management and Promotion License Agreement between E&M THEATRICAL INC. and CITY OF CLERMONT("License Agreement") 1. E&M Theatrical Inc. (Licensee) shall, schedule, and oversee the presentation and production of shows and events at the Premises (the Shows, as set forth in the "Use of Premises" paragraph of the License Agreement). Licensee, shall be responsible for managing the operations of the Premises for the Shows and for determining, subject to City's prior approval, what Shows shall be presented on the Premises, when such Shows will be presented, how long each Show will run and such other customary and related activities in booking events in the Premises. 2. The Shows will be designed in conjunction with The City and other community events in order to best serve the needs of the City and Surrounding Communities. 3. The City shall provide a Theater Operations Manager, as detailed in the License Agreement and working under the supervision of the City, to work with Licensee to assist in the scheduling, production and operation of the Shows as contemplated herein. 4. Licensee is responsible for managing its own estimates of all (if any) advance costs for the shows and events it schedules, and the City has no responsibility for such costs. Licensee will also estimate the running costs during events that may need to be advanced by Licensee and will fund such costs. The City will have no responsibility for those costs, either. On its own internal books, Licensee will track its estimates of costs and seek to cover them solely from proceeds (which may include not only ticket revenues but also sponsorships or other event-specific sources); and, regardless, the City will not be requested to cover any shortfall the Licensee might bear (if any). The types of costs Licensee will cover will include items such as: a. Maintaining the books and records for each use of the Theatre/s; b. Personnel hired and paid by Licensee for Premises Shows; c. Booking of Shows and all business ancillary thereto; d. Operating the concession stands for the sale of food, beverages and merchandise as approved by the City, but only during events where City does not operate such concessions directly; e. Advertising and promotion as approved by and in collaboration with the City; f. Designing and Arranging for sponsorships as approved by the City; g. Design and management of Ticketing Operation including Collection of ticket sales, subscription fees, renovation fees and the like, booking fees, any commissions paid for theatre parties or benefits, such as group sales, credit card sales, etc. h. Any other cost reasonably related to the running of the Theatre or to the presentation of Shows/events. /I Mayor Gail L. Ash Initials: 4.142- Jeanette Linders Initials: t, 5. From each of the Shows presented in the Premises by Licensee, the City receives the following revenues a. the City's prorated portion of the costs of standard ARC overhead (i.e. utilities and Premises' staffing)and any additional Shows related costs; b. 100% of the Licensee's actual share of proceeds from concessions (typically 25% of gross revenues from merchandise sales; plus, a percentage to be determined of food and beverage after costs), the City being responsible for labor at the concession tables; c. the offset of Licensee's payments covering the costs of the Theatre Operations Manager [See Paragraph 3, above]; and, d. $1.00 per ticket sold to each of the Shows. Mayor Gail L. Ash Initials: A anette Linders Initials: �` SCOPE OF POSITION "DIRECTOR OF ARC THEATRE OPERATIONS" Overall Responsibilities The Director of ARC Theatre Operations (the"DO") will support the daily use of the ARC's theatre and performance venues by overseeing, coordinating and participating in the operation of events planned and staged in those venues and all of the appropriate supporting areas within ARC and its surrounding property. In close coordination with City managers, the DO will assist in the planning and running of the day-to-day activities related to the successful operations of venue events including; providing excellent customer service to clients and patrons, following and enforcing safety guidelines, detailed planning of events, materials purchasing or rental, delivery coordination, resource management, preparing estimates, coordinating with box office operations, as well as upholding departmental policies and procedures. The DO is responsible for the daily oversight of users, staff, contract workers, guests on-site in the venues, and will also have varying degrees of proficiency in theatrical equipment. The DO will provide a modest amount of physical labor(when needed) in support of the venues and general operations, as well as administrative tasks. Duties Participate in the day-to-day aspects of theatre operations and administrative support -to ensure effective administration of fiscal, personnel and operational procedures. Coordinate, operate, instruct, and manage others in a variety of technical and specialized equipment, materials and devices related to theatre technology including but not limited to mixing and recording AudioNideo elements, hanging and operating theatrical lights, building in metal and wood rigging, projection and video equipment, and machinery as required. The DO is responsible for overall ARC theatres operations management including artist and guest experience, event management and payroll. Responsible for any City house seats and City staff ticketing. Supervise house management team. Serve as key performance emergency manager. The DO will work closely with E&M and the Promoters and Producers staging events in the ARC venues for the planning of all shows and projects,both in season and out of season, and for outdoor events on ARC property. The DO is expected to work with clients as assigned and in coordination with the box office and booking team during pre-production planning as a consultant on various aspects of production; including preparing the City's allocation of estimated event costs,planning production schedules, ordering equipment or supplies as needed, and effectively communicate scheduling and event needs to management. The DO will also serve as technical manager on duty for events, supervise the completion of event reports, and review all event reports in order to follow-up on reported problems or repairs as needed. At all times,the DO shall maintain open communication with E&M, other managers and event space contractors,technical and box office staff regarding issues with both events and theatre maintenance. Attend department and production meetings as necessary. The DO is responsible for film and movie operations, including BluRay, DVD and 35mm film. Supervise projectionists for on-site film events, if needed. 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