HomeMy WebLinkAbout2005 S Purchasing - RFP - SportsPlex Management Agreement and Purchase Agreement Amendments.:
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MANAGEMENT AGREEMENT
BETWEEN
ORANGE COUNTY, NORTH CAROLINA
AND
RFP
Approved as of 12/15/05
- '~• MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") dated as of the 15`x'
of December 2005, by and between Orange County, North Carolina, P.O. Box 8181,
Hillsborough, NC 27278, a political subdivision of the State of North Carolina ("the County"),
and Recreation Factory Partners (a division of IV Sports Factory, LLC), 143-240 S. Main
Street, Wake Forest, NC 27587 ("RFP").
BACKGROUND
The County is the owner of the Recreation Complex and Ice Arena described in
the attached Schedule A, which Complex and Arena is located in Orange County, North Carolina
("Facility").
RFP is engaged, among other things, in the business of providing management
services, including operations services for public recreation and ice arena facilities.
The County desires to engage RFP, and RFP desires to accept such engagement,
to provide management services for the Facility on the terms and conditions set forth herein.
The County and RFP intend to work in mutual accord in order to ensure provision
of high quality management services, thereby enhancing the use and enjoyment of the Facility.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions
For purposes of this Agreement, the following terms have the meanings referred
to in this Section l:
"ADA" -the Americans with Disabilities Act, 42 U.S.C. Sections 12101-12213 as
amended by the Civil Rights Act of 1991 (42 U.S.C. Section 1981(a)), as it now exists and as it
maybe amended in the future by statute or judicial interpretation.
"Approved Budget" -any budget submitted by RFP and approved by the County
pursuant to Section 5 hereof.
"CERCLA" -the Comprehensive Environmental Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act.
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"Capital Equipment" -any and all furniture, fixtures, machinery or equipment,
either additional or replacement, having a per item original cost of $5,000 or more and an
expected useful life or more than one year.
"Capital Improvements" -any and all building additions, alterations, renovations,
repairs or improvements that have an initial dollar cost of not less than $20,000 per project.
"County" - as defined in the first paragraph of this Agreement.
"Contract Administrator" -the designated administrative official of County (as of
the date hereof, the County Manager) as from time to time appointed by County, or such
individual person(s) as may from time to time be authorized in writing by such administrative
official to act for him/her with respect to any or all matters pertaining to this Agreement.
"Employment Period" -for the Employees (as defined in Section 7.2), the period
beginning on the closing date and ending three months thereafter.
"Event Expenses" -any and all expenses incurred or payments made by RFP in
connection with the occurrence of events at the Facility, including but not limited to costs for
event staffmg including ushers, ticket takers, security and other event staff, and costs relating to
setup and cleanup.
"Facility" - as defined in the first paragraph of the Background section of this
Agreement.
"Facility Policy Manual" -the policy manual provided by RFP to the County, and
updated from time to time, containing certain operating and employment policies customarily
utilized by RFP in connection with the management of a public assembly facility such as the
Facility.
"Fiscal Year" - a one year period beginning July 1 and ending June 30.
"Laws" -all federal, state, local and municipal regulations, ordinances, statutes,
rules, laws and constitutional provisions.
"Losses" -any and all losses, liabilities, claims, damages and expenses (including
reasonable attorneys fees and costs).
"Management Term" - as defined in Section 3.2 hereof.
"Net Operating Loss/Profit" -with respect to a Fiscal Year, the excess, if any, of
Operating Expenses for such Fiscal Year over Operating Revenues to such Fiscal Year, in the
case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over Operating
Expenses for such Fiscal Year, in the case of a profit.
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"Operating Expenses" -any and all expenses and expenditures of whatever kind
or nature incurred by RFP in promoting, operating, maintaining and managing the Facility,
provided that the same have been budgeted, are otherwise contemplated by this Agreement (e.g.
an increase over budgeted Operating Expenses due to an increase in event activity) or such
expense is otherwise approved in writing by the County, including, but not limited to: employee
compensation and related expenses (e.g., base salaries, bonuses, severance and car allowances),
employee benefits, parking and other fringe benefits, supplies, material and parts costs, costs of
any interns and independent contractors, advertising, marketing and public relations costs and
commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and
membership costs related to operating the Facility, the costs of procuring, administering and
maintaining the insurance referred to in Section 8 below (including, without limitation, the
amount of any premium or deductible under any such policy), amounts expended to procure and
maintain permits and licenses, charges, taxes, excises, penalties (except where incurred due to
RFP's or its employees', agents', licensees', concessionaires', promoters', performers' or
contractors' negligent or intentional acts or omissions) and fees, professional fees, printing and
stationery costs, Event Expenses, postage and freight costs, equipment rental costs, computer
equipment leases and line charges, repairs and maintenance costs, security expenses, utility and
telephone charges, travel and entertainment expenses in accordance with RFP's policies (a copy
of which is included in the Facility Policy Manual), the cost of employee uniforms, if any, safety
and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance
of signage inventory and systems, the cost of annual independent audits of the Facility, the cost
of compliance with laws and regulations, costs incurred under agreements, commitments,
licenses and contracts executed by RFP as provided in Section 2.3(c) hereof, and the fixed
management fees payable to RFP pursuant to Section 4.1 below, all as determined in accordance
with generally accepted accounting principles and recognized on a modified accrual basis;
provided that Operating Expenses shall not include expenses or expenditures in connection with
Capital Improvements and Capital Equipment purchases and any expenses relating to RFP
personnel based in RFP's corporate headquarters or its regional field locations (including the
costs of travel by such corporate or regional personnel in connection with RFP's management of
the Facility).
"Operating Revenues" -any and all revenues of every kind or nature derived from
owning, operating, managing or promoting the Facility, including, but not limited to: license,
lease and concession fees and rentals, revenues from memberships and facility user fees,
revenues from merchandise sales, advertising and sponsorship sales and renewals, event
sponsorship revenues, equipment rentals, utility revenues, box office revenues, ticket surcharges
(if any), ticket service fees, parking revenues, food service and concession revenues (however, if
such revenues are collected in the first instance by and retained by the concessionaire, only the
amount of such revenues paid by the concessionaire to the Facility shall be included as Operating
Revenues), commissions or other revenues from decoration and set-up, security and other
subcontractors (however, if such revenues are collected in the first instance by and retained by
such subcontractors, only the amount of such revenues paid by such contractors to the Facility
shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated
from separate agreements with RFP Affiliates pertaining to the Facility, and interest revenues,
all as determined in accordance with generally accepted accounting principles and recognized on
a full accrual/cash basis. The parties acknowledge that revenues from the sale of tickets for
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events at the Facility are not Operating Revenues, but are instead revenues of the promoter
and/or performer of each such event. To the extent that RFP collects such ticket sale revenue on
behalf of such promoter and/or performer, such ticket sale revenue shall be the source of funds
from which RFP collects the rental charges and other event reimbursements due by such
promoter and/or performer for use of the Facility, which such charges and reimbursements are
Operating Revenues hereunder.
"Operating Revenue Benchmark" -shall be established annually in association
with the approved budget, beginning with the first full Fiscal Year of the Management Term,
subject to adjustment for material changes in the manner in which RFP operates food and
beverage services at the Facility or provides other programs and services, if such changes are
agreed upon by the parties hereto.
"Person" -any individual, general partnership; limited partnership, limited
liability partnership, partnership, corporation, joint venture, trust, business trust, limited liability
company, cooperative, or association, and the successors and assigns of any of the foregoing and,
unless the context otherwise requires, the singular shall include the plural, and the masculine
gender shall include the feminine and the neuter, and vice versa.
"Pre-existing Agreement" -each contract, license, agreement, option, lease and
commitment existing as of the date of this Agreement that grants any Person any right (i) to
license, use, occupy or rent all or any portion of the Facility, or (ii) to provide services to be used
in the management, operation, use, possession, occupation, maintenance, promotion or marketing
of all or any portion of the Facility.
"Renewal Term" -the additional period for which this Agreement maybe
renewed at the option of the County in accordance with Section 3.2 hereof beyond the
Management Term.
"RFP" - as defined in the first paragraph of this Agreement.
"Senior Center" - as described and/or referred to in Sections 2.3(q), 2.3(t), 2.6,
13.1 and 13.7 hereof.
2. Engagement of 12FP; Scope of Services.
2.1 Engagement.
(a) General Scope. The County hereby engages RFP to promote, operate and
manage the Facility during the Management Term and the Renewal Term, if any, upon the terms
and conditions hereinafter set forth, and RFP hereby accepts such engagement.
(b) Manager of the Facility. Subject to the terms of this agreement, RFP shall
be the sole and exclusive manager to manage, operate and promote the Facility during the
Management Term and the Renewal Term, if any. In such capacity, RFP shall have exclusive
authority over the day-to-day operation of the Facility and all activities therein; provided that
APPROVED 12/05/05
RFP shall follow all policies and guidelines of the County hereafter established or modified by
the County that the County notifies RFP in writing are applicable to the Facility (including
without limitation any methodology pertaining to the allocation of any costs and expenses by the
County to the Facility as permitted herein); provided further that to the extent that such policies
or guidelines hereafter established or modified by the County affect revenues or expenses at the
Facility, then and in that event, the Operating Revenue Benchmark shall be appropriately
adjusted so that it reflects the revenues resulting from such established or modified policies or
guidelines.
(c) Approval of the County. To the extent that the approval of the County is
required under the terms of this Agreement, the written approval of the Contract Administrator
shall constitute the approval of the County, except to the extent the approval of another party is
expressly required by the terms of this Agreement.
(d) Standards for Measurement of RFP's Performance. The County is entering
into this Agreement in part based upon RFP's stated expertise and experience in managing and
promoting other facilities similar in nature to the Facility and that RFP will utilize all of its good-
faith commercially reasonable efforts to manage the Facility in afirst-class, high-quality, fiscally
responsible manner and in the County's best interest. It is the intention of the parties hereto that
RFP will use its good faith commercially reasonable efforts to accomplish the following
performance goals in its management of the Facility:
(i) Decreasing the yearly subsidy required by the County to the
expenses of the Facility from the County's General Fund; and
(ii) Improving the quality of operations and programming at the
Facility.
(e) It is the express intent of the parties hereto that this Agreement be
construed to the fullest extent possible in accordance with I.R.S. Revenue Procedures and
Rulings, including Revenue Procedure 97-13, relating to management contracts for facilities
financed with tax-exempt installment purchase financing and Certificates of Participation, and,
for purposes of determining the parties' compliance with such Revenue Ruling, all provisions
hereof shall be interpreted or applied in such a manner as to provide the greatest compliance with
the same. RFP acknowledges and agrees that it shall not be entitled to and does not intend to
claim any compensation whatsoever or howsoever measured or denominated hereunder which
does not comply with such Revenue Procedures and which could jeopardize tax-exempt status of
the interest paid as part of the County's financing of the purchase, up-fit, expansion or otherwise
of the Facility. Under no circumstances shall RFP enter into any agreement for use of the Facility
where such use exceeds thirty (30) days over such agreement's entire term (including renewal
terms), without the prior written consent of the County.
2.2 Scope of Services -- Generally.
RFP shall perform and furnish such management services and systems as are
appropriate or necessary to operate, manage and promote the Facility in a manner consistent with
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RFP's and the County's policies and procedures, and the operations of other similar first-class
facilities. RFP shall take all reasonable precautions to prevent damage to the Facility, from fire
or other causes, to prevent bodily and other personal injury, and to prevent loss from theft or
other causes. Such precautions shall include taking any action required by the County's or RFP's
insurance carriers.
2.3 Specific Services.
Without limiting the generality of the foregoing, and subject to the provisions
hereof, RFP shall provide, and shall have the authority to provide without (except as otherwise
expressly provided herein) any prior approval by the County, all of the following management
services for the Facility in consideration for the management fees specified in Section 4 hereof:
(a) employ (subject to Section 7.2), supervise and direct all necessary or
desirable employees and personnel consistent with the provisions of this Agreement;
(b) administer relationships with all subcontractors, concessionaires and all
other contracting parties to the Pre-existing Agreements, assume responsibility for any and all
negotiations, renewals and extensions (to the extent RFP deems any of the foregoing to be
necessary or desirable) relating to such Pre-existing Agreements, and enforce the Pre-existing
Agreements;
(c) negotiate, execute in its own name, deliver and administer any and all
licenses, occupancy agreements, rental agreements,. booking commitments, advertising
agreements, concession agreements, supplier agreements, service contracts (including, without
limitation, contracts for cleaning, decorating and set-up, snow removal, general maintenance and
maintenance and inspection of all systems, elevators, equipment, fire control panel and other
safety equipment, staffing and personnel needs, and other services which are necessary or
appropriate) and all other contracts and agreements in connection with the management,
promotion and operating of the Facility, provided that if any such license, agreement,
commitment or contract other than those involving the license, lease or rental of the Facility in
the ordinary course has a term that extends beyond the remaining Management Term or Renewal
Term, as the case maybe, such license, agreement, commitment or contract shall be approved
and executed by the County (which approval shall not be unreasonably withheld); provided,
however, that in ,the event that RFP desires to propose additional services by RFP, RFP shall
present all such proposals to the County for its approval;
(d) to the extent that Operating Revenues or funds supplied by the County are
made available therefor, maintain the Facility; provided that the County shall be responsible for
undertaking all Capital Improvements and Capital Equipment purchases as provided in Section
5.8;
(e) to the extent that Operating Revenues or funds supplied by the County are
made available therefor, rent, lease or purchase all equipment and maintenance supplies
necessary or appropriate for the operating and maintenance of the Facility, provided that the
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County shall be responsible for undertaking all Capital Improvements and Capital Equipment
purchases pursuant to Section 5.8;
(f) establish and adjust membership fees and user fees consistent with the
Facility Policy Manual, prices, rates and rate schedules for the aforesaid licenses, agreements and
contracts and any other commitments relating to the Facility to be negotiated by RFP in the
course of its management, operation and promotion of the Facility. In determining such fees,
prices and rate schedules, RFP shall evaluate comparable charges for similar goods and services
at similar and/or competing facilities and shall consult with the Contract Administrator about any
adjustments to the fees, prices and rate schedules at the Facility to be made by RFP;
(g) to the extent that Operating Revenues or funds supplied by the County are
made available therefor, pay, when due all Operating Expenses from accounts established
pursuant to Sections 5.6 and 5.7 of this Agreement;
(h) after consultation with the County, institute or defend, at the reasonable
expense of the County, with counsel agreed to by both parties, such legal actions or proceedings
as RFP shall deem necessary or appropriate in connection with the operation of the Facility,
including, without limitation, to collect charges, rents or other revenues due or to cancel,
terminate or sue for damages under, any license, use, advertisement or concession agreement for
the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire at the
Facility;
(i) maintain a master set of all booking records and schedules for the Facility;
(j) provide day-to-day administrative services in support of its management
activities pursuant to Approved Budgets and annual plans described herein, including, but not
limited to, the acquisition of services, equipment, supplies and facilities; internal budgeting and
accounting; maintenance and property management, personnel management; record-keeping;
collections and billing; and similar services;
(k) engage in such advertising, solicitation, and promotional activities as RFP
deems necessary or appropriate to develop the potential of the Facility and the cultivation of
broad community support (including without limitation selling advertising inventory and
securing product rights for the Facility). RFP shall work with the Orange County Economic
Development Commission and such Visitor's Bureau, Chamber of Commerce; alliance of
business groups and government groups as designated by County through the Contract
Administrator to market the Facility for conventions, trade shows and public entertainment
shows. In connection with its activities under this Agreement, including without limitation
advertising relating to the Facility, RFP shall be permitted to use the terms "Orange County
SportsPlex" and logos for such names in its advertising, subject to the approval of the County;
(1) Market and secure new commercial rights sales for the Facility;
(m) In consultation with the County, evaluate and adjust the operational
structure of the Facility as needed;
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(n) In consultation with the County, evaluate, and attempt to adhere to
contemporary, community standards in respect to all activities and events scheduled;
(o) As set forth herein, submit all financial and other reports detailing RFP's
activities regarding the Facility to the County in a timely manner;
herein;
(p) Prepare and submit proposed budgets and annual plans as further provided
(q) Assist with the marketing, promotion and operation of the Central Orange
Senior Center as further provided herein;
(r) The County will provide to the Facility such recycling facilities and
services as it provides to other County buildings for use by RFP for recyclable materials
generated at the Facility. RFP agrees to operate the Facility in conformance with the County's
recycling policies and procedures as communicated by the Contract Administrator;
(s) RFP, in consultation with the Contract Administrator, shall operate the
Facility using any and all reasonable energy conservation devices, techniques and policies;
(t) RFP agrees to cooperate in the design and development of the Central
Orange Senior Center. Cooperate means providing advice and counsel to the Senior Committee
and the County and its consultants. The intent of this cooperation is to deliver a Senior Center
that is the most efficient possible.
2.4 Right of Entry Reserved.
Representatives of the County designated in writing by the Contract
Administrator shall have the right, upon reasonable advance notice to RFP and at appropriate
times, to enter all portions of the Facility to inspect same, to observe the performance of RFP of
its obligations under this Agreement, to install, remove, adjust, repair, replace or otherwise
handle any equipment, utility lines, or other matters in, on, or about the premises, or to do any
act or thing which the County maybe obligated or have the right to do under this Agreement or
otherwise. Nothing contained in this Section is intended or shall be construed to limit any other
rights of the County under this Agreement. The County shall not unreasonably interfere with the
activities of RFP hereunder, and the County's actions shall be conducted such that disruption of
RFP's work shall be kept to a minimum. Nothing in this Section shall impose or be construed to
impose upon the County any independent obligation to inspect, construct or maintain or make
repairs, replacements, alterations, additions or improvements or create any independent liability
for any failure to do so.
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2.5 Confidentiality/Nondisclosure.
(aj Confidentiality/Nondisclosure. In connection with the performance of
RFP's services hereunder, the County acknowledges that RFP may provide the County and its
employees, agents and subcontractors (including without limitation any engineering firm that
maybe retained by RFP for the Facility) with Confidential Information (as defined below). In
addition, in connection with the performance of the services hereunder, RFP may provide to the
County and its employees, agents and subcontractors with materials that are protected by
copyright of RFP.
(i) The County agrees that it shall keep secret and confidential any
and all Confidential Information already disclosed and/or to be disclosed to it by RFP which has
been designated as confidential in writing by RFP, and the County shall not divulge any such
information, in whole or in part, to any third party except as is expressly permitted below in this
Section 2.5 or as maybe required by state or federal law.
(ii) The County shall not use any such information, except for the
express purpose of utilizing it in connection with the management of the Facility. The County
shall not directly or indirectly disclose or discuss any such information with any Person, other
than employees, agents and subcontractors of the County who are directly concerned with the
management of the Facility, provided, however, that in the event of any such disclosure to its
employees, agents and subcontractors, the County (i) shall first inform RFP of its desire to make
such disclosure, (ii) if requested by RFP, shall require such employees, agents or subcontractors
to execute and deliver to RFP prior to any disclosure by the County to him/her/it, an agreement
acknowledging a receipt of a copy of the provisions of this Section 2.5 and agreeing to be bound
by such provisions to the same extent as the County, and (iii) in any event, shall advise in writing
all such Persons of the existence of the provisions of this Section 2.5 and of their responsibility
to comply with such provisions.
(iii) "Confidential Information" means any and all information
disclosed (orally, in writing, by inspection or otherwise) to the County by RFP pursuant to this
Agreement which information has been designated as confidential in writing by RFP. Such
information includes; but is not limited to, plans and proposals. The restrictions upon
confidentiality and use of Confidential Information set forth in this Section 2.5 do not apply to
information which the County can demonstrate was publicly available or lawfully in its
possession at the time of its disclosure to the County by RFP.
(iv) With respect to any information or material which is protected by
copyright of RFP, no part of such materials may be reproduced, stored in a data base and
retrieval system or transmitted in any form or by any means - .graphic, electronic, photocopying,
recording, mechanical or otherwise -without the prior written permission of RFP.
(b) ~ecific Performance. The County agrees that the provisions of this
Section 2.5 are reasonable and necessary to protect the interests of RFP and that RFP's remedies
at law for a breach of any of the provisions of this Section 2.5 will be inadequate and that, in
connection with any such breach, RFP will be entitled, in addition to any other remedies
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(whether at law or in equity), to temporary and permanent injunctive relief without the necessity
of proving actual damage or immediate or irreparable harm, or of the posting of a bond. Not-
withstanding the foregoing, if a court of competent jurisdiction shall determine any of the
provisions of this Section 2.5 to be unreasonable, RFP agrees to a reaffirmation of such
provisions or limits to such provisions which such court finds to be reasonable.
(c) The County acknowledges the Confidential Information claim of RFP
contained in this Section 2.5. The County agrees, consistent with the public records law of North
Carolina, to assert that claim. The County and RFP acknowledge that the County is a local
government and a political subdivision of the State of North Carolina and as such is subject to
the Public Records Laws of the State of North Carolina. The County's agreement contained in
this Section 2.5 to protect RFP's Confidential Information does not require the County to violate
any such laws and does not require the County to litigate and pay for the litigation of the right to
withhold access, copies, use 'or confidentiality of the. Confidential Information. The County
agrees to notify RFP of any claim it receives, under the Public Records Laws of North Carolina,
for access, copies or use of the Confidential Information and agrees that RFP may, at its election
and expense, defend the claim in the County's name provided RFP agrees in writing, before
undertaking such a defense, to indemnify and hold the County, its officials and employees,
harmless from any consequence of the defense. Nothing in this section requires the County, its
officials or employees, to subject itself and themselves to criminal liability and each may
independently act in good faith to protect itself and themselves from criminal liability. The
County is not responsible, in money damages, for the access, use, or copying of the Confidential
Information that is not authorized by the County. The County agrees, in good faith, to take all
reasonable steps to prevent the unauthorized use or transfer of the Confidential Information.
2.6 Central Orange Senior Center.
For purposes of this Agreement, all revenues generated by the Central Orange
Senior Center (the Senior Center) shall not be considered Operating Revenues hereunder. To the
extent that RFP employees employed at the Facility can provide management services as
described in Section 2.2 and, to the extent applicable, in Section 2.3, for the Senior Center within
their normal business day, such services shall be provided without extra charges or fees.
However, to the extent that RFP employees at the Facility cannot so perform or where RFP is
directed by the County to hire additional staff for the Senior Center, then any and' all new wages
or overtime payments incurred by the Facility in connection with (i.e. just before, during or just
after) the Senior Center shall be paid for by the County outside of the Facility budget. Any other
incremental (i.e. would not be incurred by the Facility but for the existence of the Senior Center)
charges that are identifiable and quantifiable in connection with the Senior Center shall also be
for the account of the County and not the Facility.
3. Term and Renewal.
3.1 Transition Period.
From the date of this Agreement through June 30, 2006, RFP and County shall,
prior to the date the County closes on the purchase of the Facility budget for the Transition
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Period and Compensation to RFP from the date of this Agreement through the date the County
closes on the Facility. The Transition Period Budget and compensation to RFP from the date of
this Agreement through the date the County closes on the Facility shall become an Addendum to
this Agreement upon their approval.
3.2 Management Term and Renewal Term.
(a) The "Management Term" of this Agreement shall commence on the date
the County closes on the purchase of the Facility and end at midnight on June 30, 2008 unless
earlier terminated pursuant to the provisions of this Agreement; provided, however, that the
County shall have the right, in its sole discretion without penalty or cause, to terminate the
Management Term effective as of the first anniversary of the date on which the Management
Term began by giving not less than one hundred fifty (150) days prior written notice of such
termination to RFP.
(b) The County may extend the term hereof on the same terms and conditions
for additional periods as agreed by County and RFP (each a "Renewal Term") commencing
immediately after the Management Term or any Renewal Term, as applicable, by giving not less
than one hundred fifty (150) days prior written notice of such extension to RFP; provided,
however, that the parties shall mutually agree on the amount, terms and conditions of
remuneration for RFP's services hereunder. For each Renewal Term, the County shall have the
right, in its sole discretion, to terminate the Renewal Term on the anniversary of the date on
which the Renewal Term began by giving not less than one hundred fifty (150) days prior written
notice of such termination to RFP hereof.
3.3 New Contract.
If (i) the County intends, upon termination or expiration of the Management Term
or Renewal Term, to continue to provide management at the Facility through a private provider
and (ii) this Agreement has not been terminated upon a default by RFP, then the County will
during the final year of the Management Term (unless the County exercises its option to renew
under Section 3.2) or Renewal Term, as the case maybe, negotiate and discuss in good faith a
new contract or arrangement with RFP for the provision of such services following the
completion of such term. The obligation to negotiate with RFP is not intended to guarantee any
contract rights for a future contract with RFP or any specific terms of a new contract. The
County may contract with RFP or extend a contract with RFP in its sole and absolute discretion.
4. RFP's Compensation.
4.1 Management Fee.
As base compensation to RFP for providing the services herein specified during
the Management Term, the County shall pay RFP during the Management Term a periodic fixed
fee of $6,250 per month plus reimbursable expenses substantiated by RFP in an amount not to
exceed $1,000 per month. The foregoing compensation shall be payable on or before the last day
of each month during the Management Term, and RFP, provided it is not in default (as described
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APPROVED 12/05/05
in Section 12.1) hereunder, shall be entitled to draw such amounts from the account described in
Section 5.6. In the event of a Renewal Term, the parties shall mutually agree upon the amount,
terms and conditions of RFP's remuneration under this Section 4 for its performance hereunder.
4.2 Fees Belong to County.
All revenues generated by, payable in connection with or in any way related to the
Facility shall be the sole property and revenue of the County. RFP's sole remuneration for its
performance under this Agreement shall be the Management Fee. RFP shall have no claim to any
revenues generated by, payable in connection with or in any way related to the Facility except
through the Management Fee.
5. Funding; Budgets; Bank Accounts.
5.1 Operatin Fg, unds.
Except as otherwise set forth herein and subject to Section 5.2, following the
approval of the annual operating budget for a Fiscal Year (including, without limitation, any
annual operating budget applicable to the first Fiscal Year during the term hereof), the County
shall make available to RFP all funds necessary to pay all approved expenses pursuant to the
approved, budgeted Operating Expenses incurred or accrued in such Fiscal Year, to the extent
Operating Revenues do not equal or exceed Operating Expenses. To the extent that Operating
Revenues during a calendar quarter period are insufficient, or are reasonably expected to be
insufficient, to cover Operating Expenses ("Cash Flow Shortfall") for such period, the County
shall deposit funds into the operating account as follows. Thirty (30) days prior to the beginning
of each calendar quarter during the Management Term and any Renewal Term, RFP will submit
to the County an invoice for the projected Cash Flow Shortfall for such quarter and the County
will transfer such funds to the operating account within five (5) days after the start of such
calendar quarter. Such funds shall be used to pay Operating Expenses. Should it thereafter be
determined that Operating Revenues for the quarter in question were in fact sufficient to cover
Operating Expenses for such quarter and that the deposit by the County was not in fact needed,
then such deposit shall, at the County's option, be either refunded to the County within ten (10)
days of its written request therefor, or shall be deposited into aninterest-bearing account to be
used only to cover any future Cash Flow Shortfalls. Any cash infusions by the County pursuant
to a Cash Flow Shortfall shall not constitute Operating Revenues.
5.2 Non-Funding.
(a) The County shall have no obligation to provide funds for the payment of
Operating Expenses incurred or committed for after the date RFP receives written notice (an
"Appropriation Deficiency Notice") of the fact that insufficient funds or no funds have been
appropriated, or are anticipated to be insufficient or unavailable in the future, for the Facility.
(b) If the Appropriation Deficiency Notice is of insufficient funds, the County
shall pay all Operating Expenses incurred or committed for after such date that are within the
aggregate level of appropriated funds specified in the Appropriations Deficiency Notice. The
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APPROVED 12/05/05
County shall pay all Operating Expenses incurred or irrevocably committed for prior to the date
RFP receives the Appropriation Deficiency Notice. Any failure by the County to provide funds
(beyond the aggregate level of appropriated funds) for the payment of Operating Expenses
incurred or committed for after RFP receives an Appropriation Deficiency Notice shall not be a
breach of or default under this Agreement by the County. Any failure by RFP to perform its
obligations under this Agreement after RFP's receipt of an Appropriation Deficiency Notice shall
not be a breach of or default under this Agreement if such breach or default directly results from
such Appropriation Deficiency, provided that the County has been first given reasonable prior
written notice by RFP that such specific breach or default by RFP was likely to result from such
Appropriation Deficiency.
(c) If the County appropriates funds at (or reduces appropriated funds to) a
level that, in RFP's reasonable, good faith judgment, renders the management of the Facility or
any part of the Facility by RFP unsafe as a public assembly facility, RFP shall provide its
concerns in writing to the County and (i) RFP and the County shall, as soon as practicable and in
no event later than the date that RFP has identified as the last date beyond which RFP has
determined that it is unsafe to operate the Facility or any part of the Facility (the date of which
shall have been included in RFP's notice referenced immediately above), agree on the manner in
which the Facility shall be operated or on the increased amount of funding necessary to render
the operation of the Facility safe or (ii) RFP may terminate this Agreement pursuant to Section
12.2 (with the effect set forth in Section 12.3). In the event of a termination under this Subsection
5.2(c) and if RFP's concerns are addressed within the twelve (12) month period following such
termination, then RFP shall have the right to resume management of the Facility by giving
written notice within thirty (30) days of the date such concerns are addressed, provided that this
right to resume management shall expire if not exercised in writing within such thirty (30) day
period.
5.3 Annual Budget; Cash Flow Budget.
(a) As part of the annual plan described in Section 6.2 herein, on or before
one hundred twenty (120) days prior to the end of each Fiscal Year, RFP will prepare a proposed
annual operating budget for the next Fiscal Year to meet the scope of services and objectives
under this Agreement. Such budget shall contain appropriate line items for revenues and
expenses and the project net operating deficit or surplus.
(b) RFP shall prepare and submit to the Contract Administrator on or before
one hundred twenty (120) days prior to the end of each Fiscal Year a proposed annual cash flow
budget for the succeeding Fiscal Year.
(c) The annual budgets referred to in subparagraphs (a) and (b) above shall be
reviewed and are subject to approval by the County. On or before the date of the Orange County
Commissioners' last regularly-scheduled meeting prior to the end of each Fiscal Year, the
County shall notify RFP of any changes to the annual operating budget and the cash flow
funding budget for the succeeding Fiscal Year proposed by RFP and with such changes, if any,
as are made by the County. In the event that RFP agrees to such changes, which agreement shall
not be unreasonably withheld, conditioned or delayed, such budgets shall be the Approved
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APPROVED 12/05/05
Budgets for the upcoming Fiscal Year and, if the parties cannot agree on Approved Budgets for
the upcoming Fiscal Year, then the previous Fiscal Year's Approved Budgets shall be the
Approved Budgets for such upcoming Fiscal Year until a new budget is agreed upon by the
parties.
5.4 Budget Modifications Initiated b~RFP.
RFP may submit to the Contract Administrator at any time prior to the close of a
Fiscal Year a supplemental or revised annual operating budget or cash flow budget for such
Fiscal Year. Upon the approval of the County of such supplemental or revised budget, the
Approved Budgets for such Fiscal Year shall be deemed amended to incorporate such
supplemental or revised budget. The Approved Budgets may only be amended as set forth in
Section 5.5 below or in the two preceding sentences except that RFP shall have the right to
propose amendments to the Approved Budgets for approval by the County as may be necessary
or appropriate as the result of the scheduling by RFP of additional programs and activities at the
Facility (and the incurrence of additional Operating Expenses arising from the scheduling of
additional programs and activities at the Facility) as long as prior to the scheduling of such
activities, RFP had a reasonable good faith belief that the projected Net Operating Loss for the
Fiscal Year as set forth in the Approved Budgets would not be increased as a result of such
additional programs and activities.
5.5 Budget Modifications Initiated by the County.
In the event that it appears reasonably likely, in any year during the term hereof,
that the actual Net Operating Loss/Profit for such Fiscal Year will be larger or smaller as the case
maybe than projected in the annual operating budget for such Fiscal Year, the County may
request from RFP a plan for reduction of Operating Expenses to a level consistent with the
budgeted Net Operating Loss/Profit amount. RFP shall forthwith comply with any such expense
reduction requested by the County, whether such reduction was included in RFP's proposed plan
for reduction or not, and the approved budgets for such Fiscal Year shall be modified
accordingly, provided that if the County's requested reductions, in RFP's reasonable good faith
judgment, could materially interfere, impede or impair the ability of RFP to manage and operate
the Facility, RFP shall have the right to terminate this Agreement pursuant to Section 12.2 (with
the effect set forth in Section 12.3); and, provided further, RFP shall not be construed to have
breached its obligations under this Agreement if such alleged breach has been directly caused by
the reductions requested by the County, provided that the County has been first given reasonable
prior written notice by RFP that such specific breach or default by RFP was likely to result from
such reduction.
5.6 Receipts and Disbursements.
RFP shall establish and maintain, in one or more depositories designated by the
County, one or more operating, payroll and other bank accounts for the promotion, operation and
management of the Facility, in the name of the County, with RFP having signature authority in
such employees of RFP as RFP shall reasonably determine provided such employees are
properly bonded as specified herein. All revenues collected by RFP from the operation of or in
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APPROVED 12/05/05
any way related to the Facility shall be deposited into such accounts and Operating Expenses
shall be paid by RFP from such accounts. All revenues collected by RFP arising from, related to
or payable in connection with the Facility, including but not limited to revenues from
membership fees, user fees, box office sales, facility or equipment rentals, utility rental
agreements, food and beverage concessions, naming or pouring rights, licensing agreements,
sales, marketing, leasing or other commissions, or any other source, are the. sole property of the
County, held in trust by RFP for the County for application as provided herein. Any amounts
remaining in such accounts upon termination or expiration of this Agreement for any reason,
after payment of all outstanding Operating Expenses, shall be the sole property of the County
and shall be promptly paid by RFP to the County.
5.7 Ticket Sales Revenues.
RFP shall hold in a separate interest-bearing account in a banking institution
depository designated by the County any ticket sale revenues which it receives with respect to an
event to be held at the Facility pending the completion of the event. Such monies are to be held
for the protection of ticket. purchasers, the County and RFP, and to provide a source of funds, as
required for such payments to performers and promoters and for such payments of Operating
Expenses in connection with the presentation of events as maybe required to be paid
contemporaneously with the event. Following the satisfactory completion of the events, RFP
shall make a deposit into the operating .account(s) established pursuant to Section 5.6 above of
the amount in such account and shall pay from the operating account Event Expenses and
provide the County with a full event settlement report along with, upon request of the County,
copies of paid receipts from all vendors, promoters, performers and other payees of any portion
of the ticket sale revenues, and/or other details of such payments. Interest which accrues on
amounts deposited in the operating account(s) referred to in Section 5.6 and the ticket account
referred to above shall be considered Operating Revenues. Bank service charges, if any, on such
account(s) shall be considered Operating Expenses.
5.8 Capital Improvements; Capital Equipment.
The obligation to pay for, and authority to perform, direct and supervise Capital
Improvements and Capital Equipment purchases shall remain with the County and will not be
considered Operating Expenses. The annual plan submitted pursuant to Section 6.2 shall include
RFP's recommendation for Capital Improvements and Capital Equipment purchases to be
accomplished during the Fiscal Year and shall be accompanied by an estimate of the cost of all
such items and projects and a request that the County budget funds therefor. The County shall
retain the sole discretion to determine whether and to what level to fund Capital Improvements
and Capital Equipment purchases to the Facility.
5.9 Funding of Facility.
The parties agree that RFP shall not be considered to have a funding obligation
{e.g. to fund the operation of the Facility in the event that the County cannot appropriate funds
for its operation); provided, however, that this agreement does not in any manner negate any
payment obligations of RFP set forth in this Agreement.
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5.10 Funds for Emergency Repairs.
RFP shall have the right to act, with the consent of the County, in situations which
RFP determines to be an emergency with respect to the safety, welfare and protection of the
general public, including spending and committing funds held in the operating account(s) of the
Facility, even if such expenses are not budgeted, provided that use of such funds is reasonably
related to addressing the immediate emergency condition only; provided, however, RFP shall
have no obligation under any circumstance to spend or commit funds other than funds then
available in such accounts for any such purpose. RFP shall contact the Contract Administrator or
other responsible party at the County prior to taking such actions, and, immediately following
such action, RFP shall inform the County of the situation and the action(s) taken, and the County
shall pay into such account(s) the amount of funds, if any, reasonably spent or committed by
RFP pursuant to this Section 5.10 in excess of budgeted amounts.
6. Records, Audits and Reports.
6.1 Records and Audits.
(a) RFP shall keep full and accurate accounting records relating to its
activities at the Facility in accordance with generally accepted United States accounting
principles. RFP shall maintain a system of bookkeeping adequate for its operations hereunder
and sufficient to allow the County to determine RFP's compliance with this Agreement and the
Facility's complete financial status and performance at any time. RFP shall adjust its accounting
procedures upon request by the County to conform with any applicable requirements of state or
federal law or with the reasonable recommendations of the County's Finance Director or
financial advisors. RFP shall give the County's authorized representatives access to such books
and records at any reasonable time. RFP shall keep and preserve for at least three (3) years
following each Fiscal Year all sales slips, rental agreements, purchase order, sales books, credit
card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues
and Operating Expenses for such period. In addition, on or before ninety (90) days following
each Fiscal Year for which RFP is managing the Facility hereunder, RFP shall furnish to the
County a balance sheet, a statement of profit or loss and a statement of cash flows for the Facility
for the preceding Fiscal Year, prepared in accordance with generally accepted United States
accounting principles to be audited by the County's independent auditor or other independent
auditor chosen by the County. The audit shall contain an opinion expressed by the independent
auditor of the accuracy of financial records kept by RFP and of amounts due to the County. The
audit shall also provide a certification of Operating Revenues and Operating Expenses as defined
in this Agreement for such Fiscal Year. The costs of such audit shall be deemed Operating
Expenses.
(b) The County shall have the right at any time, and from time to time, to
cause its independent auditor or another of its choosing to audit all of the books of RFP relating
to Operating Revenues and Operating Expenses, including, without limitation, cash register
tapes, credit card invoices, duplicate deposit tapes, and invoices. No costs incurred by the County
in conducting such audit shall be considered an Operating Expense. If any such audit
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APPROVED 12/05/05
demonstrates that the Operating Revenues or Operating Expenditures reflected in any financial
statements prepared by RFP and audited as specified in the foregoing subparagraph (a) are
understated (in the case of Operating Expenses) or overstated (in the case of Operating
Revenues), in either case by more than five percent (5%), or that there were material
inaccuracies or omissions of any other nature which were intentional or grossly negligent by
RFP, RFP shall pay to the County the reasonable cost of such audit. The County's right to have
such an audit made with respect to any Fiscal Year and RFP's obligation to retain the above
records shall expire three (3) years after RFP's statement for such Fiscal Year has been delivered
to the County.
6.2 Annual Plan.
(a) RFP shall provide to the County on or before one hundred twenty (120)
days prior to the end of each Fiscal Year, an annual management plan, which shall include the
annual operating budget described in Section 5.3 for the next Fiscal Year. The annual plan shall
include information regarding RFP's anticipated operations for such Fiscal Year, including
planned operating maintenance activities by RFP, requested Capital Improvements and Capital
Equipment purchases and an anticipated budget therefor, anticipated programs, activities and
events at the. Facility, anticipated advertising and promotional activities, and planned equipment
and furnishings purchases. The annual plan shall be subject to review, revision and approval by
the County. Following review and revision by the County; RFP shall have thirty (30) days to
incorporate the County's revisions into its plan and resubmit the revised plan for approval. Upon
approval by the County, such annual plan shall constitute the operating program for RFP for the
following Fiscal Year.
6.3 Monthly Reports.
Prior to the Orange County Commissioners' second regularly monthly meeting of
each month during the term of this Agreement, RFP shall provide to the County a written
monthly report in a form approved by the County and similar to that used in other RFP managed
facilities setting out the Facility's anticipated programs, activities and events for the upcoming
month and reporting on the prior month's activities and finances; provided, however, that it shall
not be a breach of this agreement if .such regular meeting is scheduled on a date too early in a
month for RFP to deliver such report, provided that no date on or after the third Monday of any
month maybe considered "too early." RFP shall include in such report a balance sheet, income
statement, and other financial reports (such as a departmental expense report and event
accounting).
7. Employees.
7.1 RFP Employ.
(a) Subject to Section 7.2, RFP-shall select, train and employ at the Facility
such number of employees as RFP deems necessary or appropriate to satisfy its responsibilities
hereunder; RFP shall use its best efforts to recruit employees who will. be proficient, productive,
and courteous to patrons, and, subject to Section 7.2, RFP shall have the authority to hire,
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APPROVED 12/05/05
terminate and discipline any and all personnel working at the Facility. All employees shall be
informed of the standards set forth in Section 2.1(d) hereof.
(b) After the parties' agreement regarding the selection process, and the
County's opportunity to interview general manager candidates and upon consultation with the
County, RFP shall assign to the Facility a competent, full-time general manager. Prior to RFP's
appointment of such general manager, RFP shall consult with the Contract Administrator with
respect to the qualifications of the general manager proposed by RFP.
(c) RFP employees at the Facility shall not for any purpose be considered to
be employees or agents of the County, and RFP shall be solely responsible for their supervision
and daily direction and control and for setting, and paying as an Operating Expense, their com-
pensation (and federal income tax withholding) and any employee benefits, and all costs related
to their employment shall be an Operating Expense.
7.2 RFP Employees.
As of the date hereof, there are approximately 18 permanent full-time R.T.
Holdings employees at the Facility, none of whom are union employees, and approximately 117
seasonaU part-time employees (collectively, the "Employees"). RFP agrees to evaluate all R.T.
Holdings employees during the Employment Period and after the expiration of the Employment
Period, continued employment thereof shall be at the sole discretion of RFP.
7.3 Termination Effect on Contracts. All contracts relating to the Facility (including
all contracts approved by the. County and all license, lease or rental contracts pertaining to the
Facility) which RFP executed in its own name shall be automatically assigned to, and deemed to
be assumed by, the County (without further action by any party) upon termination or expiration
of this Agreement and the County shall, to the extent permitted by North Carolina law,
indemnify, defend and hold harmless RFP from and against any Losses in respect of any liability
under such contracts arising from any act or omission by any party to such contracts (other than
due to the gross negligence or intentional acts or omissions of RFP) occurring on or after the
effective date of termination or expiration of this Agreement.
8. Indemnification and Insurance.
8.1 Indemnification.
(a) RFP shall indemnify, defend and hold harmless the County, its elected and
appointed officials, officers, agents and employees from and against any and all Losses arising
from any material default or breach by RFP of its obligations specified herein or other Losses
incurred by or threatened against County arising from or in connection with a third party law suit
alleging wrongdoing by RFP in connection with RFP's management of the Facility; provided,
however, that the foregoing indemnification shall not extend to Losses to the extent such Losses
(i) arise from any breach or default by the County of its obligations under Section 8.1(b) below,
(ii) arise out of a failure by the County to maintain reasonable commercial insurance covering
the Facility and its premises for physical damage or other Loss, (iii) are caused by or arise out of
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APPROVED 12/05/05
the services provided by the architects, engineers and other agents (other than RFP) retained by
the County in connection with Capital Improvements or Capital Equipment purchases at the
Facility, or (iv) where RFP is not found to have committed the wrongdoing alleged in a third
party law suit (and such Losses would become Operating Expenses (as defined above and
reimbursable to RFP)).
(b) The County shall, to the extent permitted by North Carolina law and, with
respect to personal injury liability and property damage liability, to the extent covered by
liability insurance maintained by the County from time to time, indemnify, defend and hold
harmless RFP, its partners, officers, agents and employees from and against any and all Losses
arising from (i) any material default or breach by the County of its obligations specified herein,
(ii) the fact that at any time prior to the commencement of the Management Term hereunder the
Facility has not been operated, or the Facility and its premises are not or have not been, in
compliance with all Laws, including, but not limited to, the ADA, (iii) the fact that prior to, as of,
or after the commencement of the Management Term hereunder there is any condition on, above,
beneath or arising from the premises occupied by the Facility which might, under any Law, give
rise to liability or which would or may require any "response," "removal" or "remedial action"
(as such terms are defined under CERCLA), (iv) any structural defect with respect to the Facility
or the premises occupied by the Facility prior to, as of or after the commencement of the
Management Term hereunder, or (v) any non-compliance with any Pre-existing Agreement on or
prior to the commencement of the Management Term, or (vi) any act or omission carried out by
RFP at the specific written direction or written instruction of the County and where RFP follows
such written direction, its agents or employees; provided, however, that the foregoing
indemnification shall not extend to Losses to the extent such Losses arise from any default or
breach by RFP of its obligations specified herein.
(c) The provisions set forth in subparagraphs (a) and (b) above shall survive
termination of this Agreement; provided, however, that a claim for indemnification pursuant to
Section 8.1 shall be valid only if the party entitled to such indemnification provides written
notice thereof to the other party prior to three (3) years following the date of termination or
expiration of this Agreement.
(d) The terms of all insurance policies referred to in Section 8, including
without limitation (i) the property insurance policies of the County, and (ii) the policies of any
independent contractors retained by the County or hired by RFP (such as, the food and beverage
concessionaire retained by the County and emergency medical technicians who are not employed
by RFP), shall preclude subrogation claims against RFP, its partners, the County and their
respective officers, directors, employees and agents. RFP and the County hereby release each
other from and against any and all loss or damage to property arising out of or incident to any
peril required to be insured against herein. The effect of such release is not limited to the amount
of insurance actually carried or required to be carried, to the actual proceeds received after a loss
or to any deductibles applicable thereto. Each party shall have the insurance company include an
endorsement acknowledging this waiver, if necessary. Either party's failure to carry the required
insurance shall not invalidate this waiver.
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APPROVED 12/05/05
8.2 Liability Insurance.
(a) RFP shall secure and deliver to the Contract Administrator prior to the
commencement of the Management Term hereunder and shall keep in force at all times during
any period in which RFP has operations at the Facility, a commercial liability occurrence
insurance policy, including public liability and property damage, covering the premises and the
operations hereunder, in the amount of One Million Dollars ($1,000,000.00) for bodily injury
and One Million Dollars ($1,000,000.00) for property damage, including products and completed
operations and independent contractors.
(b) RFP shall also maintain Comprehensive Automotive Bodily Injury and
Property Damage Insurance for business use covering all vehicles operated by RFP officers,
agents and employees in connection with the Facility, whether owned by RFP, the County, or
otherwise, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per
occurrence (including an extension of hired and non-owned coverage).
(c) RFP shall also maintain Umbrella liability insurance from these limits up
to no less than a limit of Five Million Dollars ($5,000,000). RFP shall be the named insured
under all such policies. The County shall be an additional insured under the foregoing insurance
policies, as its interests may appear, and said policies shall contain a provision covering the
parties' indemnification liabilities to each other.
(d) Certificates of insurance naming County and evidencing all the policies
required of RFP hereunder along with copies of the paid receipts therefor shall be delivered to
the Contract Administrator prior to the commencement of this Agreement. Notwithstanding the
provisions of this Section 8.2, the parties hereto acknowledge that the above policies may contain
exclusions from coverage which are reasonable and customary for policies of such type. Each
such policy or certificate shall contain a valid provision or endorsement stating, "This policy will
not be canceled or materially changed or altered without first giving thirty (30) days' written
notice thereof to Orange County, North Carolina, Attention: [Contract Administrator], P.O. Box
8181, Hillsborough, NC 27278, sent by certified mail, return receipt requested."
(e) With respect to policies procured by it, RFP shall deliver to the Contract
Administrator satisfactory evidence of such renewal of such policies prior to a policy's expiration
date except for any policy expiring on the termination or expiration date of this Agreement or
thereafter.
(f) Except as provided in Sections 8.5(b) and 8.6, all insurance procured by
RFP in accordance with the requirements of this Agreement shall be primary over any insurance
carried by the County and shall not require contribution by the County.
8.3 Worker's Compensation Insurance.
RFP shall at all times maintain worker's compensation insurance (including
occupational disease hazards) with an authorized insurance company or through the North
Carolina State Compensation Insurance Fund or through an authorized self-insurance plan
21
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APPROVED 12/05/05
approved by the State of North Carolina insuring its employees at the Facility in amounts equal
to or greater than required under law.
8.4 Fidelity Insurance.
RFP shall maintain during the term of this Agreement Fidelity Insurance covering
all of RFP's personnel under this Agreement in the amount of Five Hundred Thousand Dollars
($500,000.00) for each loss, to reimburse the County for losses experienced due to the dishonest
acts of RFP's employees.
8.5 Property Insurance.
RFP shall maintain sufficient property damage or loss insurance to cover personal
property owned by RFP at the Facility and shall maintain such insurance beginning as of the date
hereof and continuing throughout all periods in which RFP has any operations at the Facility.
The County shall maintain property insurance covering the premises of the Facility. Certificates
evidencing the existence of the policies shall be delivered to RFP and to the Contract
Administrator prior to the commencement of the Management Term. Notwithstanding the
provisions of this Section 8.5, the parties hereto acknowledge that the above policies may contain
exclusions from coverage which are reasonable and customary for policies of such type. With
respect to policies procured by it, the Contract Administrator on behalf of the County shall
deliver to RFP satisfactory evidence of such renewal of such policies at least twenty (20) days
after a policy's expiration date except for any policy expiring on the termination date of this
Agreement or thereafter.
8.6 Certain Other Insurance.
(a) If any of the Pre-existing Agreements consist of agreements with
independent contractors to provide services in respect of the Facility, the County shall use its
best efforts to cause such contractors to name RFP as an additional insured under any insurance
maintained by such contractors pursuant to the terms of such Pre-existing Agreements and in
such event to deliver to RFP promptly after request therefor a certified copy of such policy and a
certificate evidencing the existence thereof. In addition, if RFP enters into any agreements during
the Management Term and any Renewal Term with any independent contractors for the
provision of services hereunder, RFP shall have the right to require such contractors to name
RFP as an additional insured under any insurance required by RFP thereunder and to deliver to
RFP prior to the performance of such services a certified copy of such policy, plus a certificate
evidencing the existence thereof, which policy contains the same type of endorsements and
provisions as provided in Sections 8.2(c) and 8.2(d). If RFP does require such contractors to
name RFP as an additional insured under any insurance required by RFP, it shall also require
such contractors to name the County as an additional insured and such policies shall contain the
same type of endorsements and provisions as provided in Sections 8.2(c) and 8.2(d).
(b) RFP shall, within ninety (90) days of the date of this Agreement and at
least yearly thereafter, review the insurance carried by the County and RFP covering the Facility
or any of RFP's or the County's operations at the Facility, or required of third parties using the
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APPROVED 12/05/05
Facility, with regard to RFP's experiences at other similar facilities, and shall within fifteen (15)
days of such review advise the County in writing of the results of its review and of any changes,
additions or increases to the insurance requirements hereunder or applicable to third parties
which are advisable under best facility management practices.
(c) The parties hereto shall each immediately notify the other, along with any
applicable insurance carrier(s), in writing of any occurrence or discovery which could result in
an insurance claim hereunder.
(d) RFP shall require reasonable liability insurance from all third-party users
of the Facility and shall enforce the provisions contained in all third party contracts entered into
in connection with the Facility, including the insurance requirement contained in all County
approved event license, concessionaire, subcontractor and other similar agreements.
9. Ownership of Assets.
9.1 Ownership.
The ownership of buildings and real estate, technical and office equipment and
facilities, furniture, displays, fixtures, vehicles and similar tangible property located at the
Facility shall remain with the County. Ownership of and title to all intellectual property rights of
whatsoever value, related to the Facility in any way shall remain the sole property of the County,
with the exception of any proprietary software developed by RFP prior to the date of this
Agreement. The ownership of consumable assets (such as office supplies and cleaning materials)
purchased with Operating Revenues or County funds shall remain with the County, but such
assets maybe utilized and consumed by RFP in the performance of services under this
Agreement. The ownership of data processing programs and software owned by the County shall
remain with the County, and the ownership of data processing programs and Software owned by
RFP shall remain with RFP. RFP shall not take or use, for its own purposes or for those of third
parties, member, user or exhibitor lists or similar materials developed by or provided to the
County for the use of the Facility, unless written consent is granted by the County. Ownership of
equipment, furnishings, materials or fixtures not considered to be real property and other
personal property purchased by RFP with County funds for use at and for the Facility shall vest
in the County automatically and immediately upon purchase or acquisition. The assets of the
County as described herein shall not, by RFP or anyone other than the County, contracting with
RFP, be pledged, liened, encumbered or otherwise alienated or assigned other than in the
ordinary course of business of the Facility.
9.2 CountYObli atg ions.
Except as herein otherwise set forth, throughout the term of this Agreement, the
County will maintain full beneficial use and ownership of the Facility and will pay, keep,
observe and perform all payments, terms, covenants, conditions and obligations under any bonds,
debentures or other security agreements or contracts relating to the Facility to which the County
may be bound, and RFP shall reasonably cooperate with the County in this regard.
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APPROVED 12/05/05
10. Assignment; Affiliates.
10.1 Assi ment.
Neither this Agreement nor any of the rights or obligations hereunder maybe
assigned by either party hereto without the prior written consent of the other party hereto, which
consent shall be given or not within the sole and absolute discretion of the party from whom
consent is sought. The party being asked to consent shall not delay in its response to the request
for consent. The parties acknowledge that the foregoing does not preclude the assignment by
1tFP of its rights to receive its management and incentive fees hereunder to its lender(s) as
collateral security for 1tFP's obligations under any credit facilities provided to it by such
lender(s), provided that such collateral assignment shall not in any event cover RF'P's rights to
manage, promote or operate the Facility hereunder.
10.2 Conflicts of Interest.
The County acknowledges that RFP manages other public assembly facilities
which may, from time to time, be in competition with the Facility. The management of
competing facilities will not, in and of itself, be deemed a conflict of interest or breach of 1tFP's
duties hereunder; provided, however, in all instances in which the Facility is in competition with
other public assembly facilities managed by RFP for the solicitation of members, users or an
event, RFP shall, before soliciting members or users of the Facility or selecting a site for the
event, confer with the Contract Administrator, making such information available to the Contract
Administrator as is reasonably requested by the Contract Administrator regarding the solicitation
or the selection of the site for the event.
11. Laws and Permits.
11.1 Permits, Licenses, Taxes and Liens.
RFP shall procure any permits and licenses required for the business to be
conducted by it hereunder. The County shall cooperate with RFP in applying for such permits
and licenses, but the County itself shall not necessarily be a licensee or permitee unless required
by the applicable license or permit or unless required by the County for other reasons. RFP shall
deliver copies of all such permits and licenses to the Contract Administrator. RFP shall pay
promptly, out of the accounts specified in Section 5.6, all taxes, excises, license fees and permit
fees of whatever nature arising from its operation, promotion and management of the Facility.
RFP shall use reasonable efforts to prevent mechanic's or materialman's or any other lien from
becoming attached to the premises or improvements at the Facility, or any part or parcel thereof,
by reason of any work or labor performed or materials furnished by any mechanic or
materialman, so long as the work, labor or material was provided at RFP's direction and the
County has supplied funds for the payment of charges therefor in accordance with this
Agreement:
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APPROVED 12/05/05
11..2 Governmental Compliance.
1tFP, its officers, agents and employees shall comply with all Laws applicable to
RFP's management of the Facility hereunder. With respect to the ADA, RFP will comply with
Title III of the ADA and the provision of such auxiliary aids or alternate services as maybe
required by the ADA. Nothing in this Section 11.2 or elsewhere in this Agreement shall,
however, require RFP to undertake any of the foregoing compliance activity, nor shall RFP have
any liability under this Agreement therefor, if (a) such activity requires any Capital
Improvements or Capital Equipment purchases, unless the County provides funds for such
Capital Improvements and Capital Equipment purchases pursuant to Section 5.8 hereof, or (b)
any Pre-existing Agreement fails to require any licensee, lessee, tenant, promoter or user of any
portion of the Facilities to comply, and to be financially responsible for compliance, with Title
III of the ADA in connection with any activities of such licensee, lessee, tenant, promoter or user
at the Facilities. Furthermore,ltFP shall have the right to require any licensee, lessee, tenant,
promoter or user of any portion of the Facility to comply, and to be financially responsible for
compliance, with Title III of the ADA in connection with any activities of such licensee, lessee,
tenant, promoter or user at the Facility.
11.3 No Discrimination in Employment.
In connection with the performance of work under this Agreement, RFP shall not
refuse to hire, discharge, refuse to promote or demote, or discriminate in matters of
compensation against, any Person otherwise qualified, solely because of race, color, religion,
gender, age, national origin, military status, sexual orientation, marital status or physical or
mental disability.
12. Termination.
12.1 Termination Upon Default.
Either party may terminate this Agreement upon a default by the other party
hereunder. A party shall be in default hereunder if (i) such party fails to pay any sum payable
hereunder within fifteen (15) days after same is due and payable, or (ii) such party fails in any
material respect to perform or comply with any of the other terms, covenants, agreements or
conditions hereof and such failure continues for more than thirty (30) days after written notice
thereof from the other party. In the event that a default (other than a default in the payment of
money) is not reasonably susceptible to being cured within the thirty (30) day period, the
defaulting party shall not be considered in default if it shall within such thirty (30) day period
have commenced with due diligence and dispatch to cure such default and thereafter completes
with dispatch and due diligence the curing of such default. RFP acknowledges and agrees that
neither it nor any concessionaire, vendor, promoter, licensee or other party with whom RFP may
deal in connection with the Facility is a tenant of the Facility or has any leasehold or other
similar interest in the land of or in the Facility itself, and summary ejectment procedures shall
not be applicable to any termination of RFP's rights to manage the Facility hereunder.
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APPROVED 12/05/05
12.2 Termination Other than Upon Default.
(a) RFP shall have the right to terminate this Agreement upon sixty (60) days
written notice to the County (i) under the circumstances described in Section 5.2(c) or 5.5 hereof,
or (ii) as otherwise set forth herein.
(b) Either party shall have the right to terminate this Agreement under the
circumstances specified in Section 13.6(d).
12.3 Effect of Termination.
In the event this Agreement expires or is terminated, (i) all Operating Expenses
incurred or irrevocably committed for prior to the effective date of expiration or termination,
except any such expenses which are incurred due to a default by RFP which resulted in such
termination, shall be paid using funds on deposit in the account(s) described in Sections 5.6 and
5.7 and to the extent such funds are not sufficient, the County shall pay all such Operating
Expenses and shall, to the extent permitted by North Carolina law, indemnify and hold RFP
harmless therefrom, (ii) the County shall promptly pay RFP all fees earned to the effective date
of expiration or termination (subject to proration), provided that the County shall be entitled to
offset against such unpaid fees any damages directly incurred by the County in remedying any
default by RFP hereunder which resulted in such termination (other than the fees or expenses of
any replacement manager for the Facility), and (iii) with the cooperation of RFP, the County
shall, or shall cause another management company retained by it to, accept the assignment of
RFP's rights, and assume and perform all of RFP's obligations, arising after the date of expiration
or termination of this Agreement, under any licenses, occupancy agreements, rental agreements,
booking commitments, advertising agreements, concession agreements, and any other contracts
relating to the Facility which have been executed by RFP hereunder, except (A) to the extent that
any such license, agreement, commitment or contract was executed by RFP in violation of any of
the restrictions applicable to RFP's right to execute such licenses, agreements, commitments or
contracts contained in this Agreement, and (B) for any such license, agreement, commitment or
contract to which the consent of the other party thereto is required for such assignment and
assumption unless such consent is obtained (in the case of any such consent, RFP will use
commercially reasonable efforts to obtain such consent and the County will cooperate in any
reasonable manner with RFP to obtain such consent). Upon the expiration of this Agreement or a
termination pursuant to Section 12.1 or 12.2, all further obligations of the parties hereunder shall
terminate except for the obligations in this Section 12.3 and in Sections 7.3, 8.1 and 12.4;
provided, however, that if such termination is the result of an intentional or grossly negligent
default, the nondefaulting party exercising its right to terminate this Agreement shall be entitled
to recover damages for breach arising from such willful default. Except with respect to losses
arising from personal or bodily injury, in no event shall either party be liable or responsible for
any consequential, indirect, incidental, punitive, or special damages (including, without
limitation, lost profits), 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 or threatened against the other party.
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APPROVED 12/05/05
12.4 Surrender of Premises.
Upon termination of this Agreement (termination shall, for all purposes in this
Agreement, include termination pursuant to the terms of this Section 12 and any expiration of the
term hereof), RFP shall surrender and vacate the Facility upon the effective date of such
termination. The Facility and all equipment and furnishings shall be returned to the County in
good repair, reasonable wear and tear excepted, to the extent funds were made available therefor
by the County. All reports, records, including financial records, and documents maintained by
RFP at the Facility relating to this Agreement other than materials containing RFP's Confidential
Information shall be immediately surrendered to the County by RFP upon termination.
13. Miscellaneous.
13.1 Use of Facility at~Direction of County.
(a) At the direction of the Contract Administrator, upon reasonable advance
notice and subject to any pre-existing commitments, RFP shall provide use of the Facility or any
part thereof to civic and nonprofit organizations located in the locale of the Facility at reduced
rates. All event-related expenses, including but not limited to ushers, ticket-takers, security and
other expenses incurred in connection with the use of the Facility by such organizations, if not
reimbursed to the Facility operating account by the organization using the Facility, shall be
reimbursed by the County to the operating accounts specified in Section 5.6. Within thirty (30)
days of the execution of this Agreement, and thereafter yearly as part of the annual plan to be
provided pursuant to Section 6.2 hereof, RFP shall supply to the County a schedule listing RFP's
standard charges for all regular event-related expenses, and such charges shall be the agreed
charges, to the extent applicable, for use of the Facility in the circumstances described in this
Section.
(b) The County shall have the right to use the Facility or any part thereof,
upon reasonable advance notice and subject to any pre-existing commitments, for such purposes
as meetings, seminars, training classes or other uses without the payment of any rental or use fee,
except that direct out-of-pocket expenses incurred in connection with such uses shall be paid by
the County. -
(c) Except for use of the Facility by the Central Orange Senior Center, the
County shall not schedule use of the Facility pursuant to subparagraphs (a) and (b) above if such
use will conflict with paying events booked by RFP and shall in all instances be subordinate
thereto in terms of priority of use of the Facility. In all instances when the Facility, or part
thereof, is to be used at the County's request or by the County pursuant to subparagraph (a) or (b)
above, a rent or use fee which otherwise would be chargeable for such event shall be deemed to
have been paid and such deemed payment shall constitute Operating Revenues for the purpose of
calculating the Operating Revenue Benchmark.
(d) The parties acknowledge that certain of the real property owned by the
County on or adjacent to the Facility is planned for construction of a Central Orange Senior
Center for use by the County and that the construction, use and existence of such shall not
27
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APPROVED 12/05/05
constitute a breach hereunder by the County. Except as otherwise provided in this Agreement,
RFP has no responsibility whatsoever for such Senior Center.
13.2 Cooperation/Mediation.
(a) The parties desire to cooperate with each other in the management and
operation of the Facility pursuant to the terms hereof. In keeping with this cooperative spirit and
intent, any dispute arising hereunder will first be referred in writing to the parties' respective
agents or representatives prior to either party initiating a legal suit, who will endeavor in good
faith to resolve any such disputes within the limits of their authority and within forty-five (45)
days after the commencement of such discussions. If and only if any dispute remains unresolved
after the parties have followed the dispute resolution procedure set forth above, the matter will be
resolved pursuant to Section 13.2(b) below.
(b) The parties may agree to mediate any dispute arising hereunder. The
parties agree that any mediation proceeding (as well as any discussion pursuant to Section
13.2(a) above) will constitute settlement negotiations for purposes of the federal and state rules
of evidence and will be treated as non-discoverable, confidential and privileged communication
by the parties and the mediator. No stenographic, visual or audio record will be made of any
mediation proceedings or such discussions. All conduct, statements, promises, offers and
opinions made in the course of the mediation or such discussion by any party,- its agents,
employees, representatives or other invitees and by the mediator will not be discoverable nor
admissible for any purposes in any litigation or other proceeding involving the parties and will
not be disclosed to any third party.
(c) The parties' efforts to reach a settlement of any dispute will continue until
the conclusion of any mediation proceeding. The mediation proceeding will be concluded when:
(i) a written settlement agreement is executed by the parties, or (ii) the mediator concludes and
informs the parties in writing that further efforts to mediate the dispute would not be useful, or
(iii) the parties agree in writing that an impasse has been reached. Notwithstanding the foregoing,
either party may withdraw from a mediation proceeding without liability therefor in the event
such proceeding continues for more than forty-five (45) days from the commencement of such
proceeding. For purposes of the preceding sentence, the proceeding will be deemed to have
commenced following the completion of the selection of a mediator.
(d) If any dispute has not been resolved pursuant to the foregoing, either party
may terminate this Agreement as provided in Section 12 hereof and/or may file suit in the North
Carolina state courts sitting in Orange County to enforce its rights hereunder.
(e) The procedure specified in this Section 13.2 shall be the sole and
exclusive procedures for the resolution of disputes between the parties arising out of or relating
to this Agreement; provided, however, that a party, without prejudice to the above procedures,
may file a complaint to seek a preliminary injunction or other provisional judicial relief, if in its
sole discretion such action is necessary to avoid irreparable damage or to preserve the status quo
("Equitable Litigation"). Despite such action, the parties will continue to participate in good faith
in the procedures specified in this Section 13.2.
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APPROVED 12/05/05
(f) Any interim or appellate relief granted in such Equitable Litigation shall
remain in effect until any alternative dispute resolution procedures described in this Section 13.2
concerning the dispute that is the subject of such Equitable Litigation result in a settlement. Any
such written settlement agreement shall be the final, binding determination on the merits of such
dispute, shall supersede and nullify any decision in the Equitable Litigation, and shall preclude
any subsequent litigation on such merits (except to enforce the settlement agreement),
notwithstanding any determination to the contrary in connection with any Equitable Litigation
granting or denying interim relief or any appeal therefrom.
(g) All applicable statutes of limitation and defenses based upon the passage
of time shall be tolled while the procedures specified in this Section 13.2 are pending. The
parties will take such action, if any, required to effectuate such tolling.
13.3 No Agency, Partnership or Joint Venture.
RFP is an independent contractor, hereunder, and is not intended to be or to act as
the agent of the County for purposes of the law of agency. 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 the County and RFP. None of the officers, agents or employees of RFP shall be
or be deemed to be employees or agents of the County for any purpose whatsoever.
13.4 Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreement and understandings with respect
thereto. No other agreements, representations, warranties or other matters, whether oral or
written, will be deemed to bind the parties hereto with respect to the subject matter hereof, unless
in writing executed by the parties after the date hereof and referring to this Agreement.
13.5 Written Amendments.
This Agreement shall not be altered, modified or amended in whole or in part,
except in a writing executed by each of the parties hereto.
13.6 Force Majeure.
(a) No party will be liable or responsible to the other party for any delay,
damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is provided to
the other party within ten (10) days of date on which such party gains actual knowledge of the
event of "Force Majeure" that such party is unable to perform. The term "Force Majeure" as used
in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire,
storm, flood, inability to obtain materials or supplies due to a Force Majeure, epidemics,
landslides, earthquakes, civil disturbances, breakage or accident to machinery or lines of
equipment, temporary failure of equipment, freezing of equipment, terrorist acts, and any other
cause whether of the kinds specifically enumerated above or otherwise which is not reasonably
29
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APPROVED 12/05/05
within the control of the party whose performance is to be excused and which by the exercise of
due diligence could not be reasonably prevented or overcome.
(b) Neither party hereto shall be under any obligation to supply any service or
services if and to the extent and during any period that the supplying of any such service or
services or the provision of any component necessary therefor shall be specifically prohibited or
rationed by any Law.
(c) Except as otherwise expressly provided in this Agreement, no abatement,
diminution or reduction of the payments payable to RFP shall be claimed by the County or
charged against RFP, nor shall RFP be entitled to additional payments beyond those provided for
in this Agreement for any inconvenience, interruption, cessation, or loss of business or other loss
caused, directly or indirectly, by any present or future Laws, or by Force Majeure.
(d) In the event of damage to or destruction of the Facility by reason of fire,
storm or other casualty or occurrence of any nature or any regulatory action or requirements that,
in either case, is expected to render the Facility materially unusable, notwithstanding the
County's reasonable efforts to remedy such situation, for a period estimated by an Architect
selected by the County at the request of RFP of at least one hundred eighty (180) days from the
happening of the fire, other casualty or any other such event, either party may terminate this
Agreement upon written notice to the other. In the event that the Facility becomes either wholly
or partially unusable as a result of any of the foregoing, appropriate pro rata adjustments to the
Benchmark shall be made.
(e) RFP may suspend performance required under this Agreement, without
any further liability, in the event of any Force Majeure, which act or occurrence is of such effect
and duration as to effectively curtail the use of the Facility so as to effect a substantial reduction
in the need for the services provided by RFP for a period in excess of ninety (90) days; provided,
however, that for the purposes of this subsection, RFP shall have the right to suspend
performance retroactively effective as of the date of the use of the Facility was effectively
curtailed. "Substantial reduction in the need for these services provided by RFP" shall mean such
a reduction as shall make the provision of any services by RFP economically impractical. No
payments of the management fees otherwise due and payable to RFP shall be made by the
County during the period of suspension. In lieu thereof, the County and RFP may agree to a
reduced management fee payment for the period of reduction in services required.
(f) In the event of a substantial decrease in the Operating Revenues not
reasonably within the control of either party, the parties shall mutually negotiate in good faith an
adjustment to the Benchmark to take into account such decreased Operating Revenues.
13.7 Binding Upon Successors and Assigns; No Third-Party Beneficiaries;
Subordination.
(a) This Agreement and the rights and obligations set forth herein shall inure
to the benefit of, and be binding upon, the parties hereto and each of their respective successors
and permitted assigns.
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APPROVED 12/05/05
(b) This Agreement shall not be construed as giving any Person, other than
the parties hereto and their successors and permitted assigns, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any of the provisions herein contained, this
Agreement and all provisions and conditions hereof being intended to be, and being, for the sole
and exclusive benefit of the parties hereto and their successors and permitted assigns and for the
benefit of no other Person.
(c) This Agreement shall, at all times, be and remain subordinate to any deed
of trust or other security interest which uses the Facility and the land upon which the Facility is
located as security for funds borrowed by the County for the purchase or any addition to or
expansion of the Facility, including that related to the Central Orange Senior Center, and the land
upon which the Facility is located; or borrowed for any other public purpose of the County, now
or in the future. RFP agrees to execute any acknowledgement of this subordination reasonably
requested by a County lender.
13.8 Notices.
Any notice, consent or other communication given pursuant to this Agreement
must be in writing and will be effective either (a) when delivered personally to the. party for
whom intended, provided a delivery receipt is secured by the deliverer, (b) on the second
business day following mailing by an overnight courier service that is generally recognized as
reliable, (c) on the fifth day following mailing by certified or registered mail, return receipt
requested, postage prepaid, or (d) on the date transmitted by telecopy as shown on the telecopy
confirmation therefor as long as such telecopy transmission is followed by mailing of such notice
by certified or registered mail, return receipt requested, postage prepaid, in any case addressed to
such party as set forth below or as a party may designate by written notice given to the other
party in accordance herewith.
To the County:
John M. Link, Jr.
County Manager
P.O. Box 8181
Hillsborough, NC 272728
With a copy (which shall not constitute notice) to the then-County Attorney.
To RFP:
Recreation Factory Partners (a division of N Sports Factory, LLC)
1439-200 S. Main Street
Wake Forest NC 27587
Attention: LLC Manager
Telecopy:
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APPROVED 12/05/05
With a copy (which shall not constitute notice) to:
Attention:
Telecopy:
13.9 Section Headings and Defined Terms.
The section headings contained herein are for reference purposes only and shall
not in any way affect the meaning and interpretation of this Agreement. The terms defined herein
and in any agreement executed in connection herewith include the plural as well as the singular
and the singular as well as the plural, and the use of masculine pronouns shall include the
feminine and neuter. Except as otherwise indicated, all agreements defined herein refer to the
same as from time to time amended or supplemented or the terms thereof waived or modified in
accordance herewith and therewith.
13.10 Counterparts.
This Agreement maybe executed in two or more counterparts, each of which
shall be deemed an original copy of this Agreement, and all of which, when taken together, shall
be deemed to constitute but one and the same agreement.
13.11 Severability.
The invalidity or unenforceability of any particular provision, or part of any
provision, of this Agreement shall not affect the other provisions or parts hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable provisions or
parts were omitted.
13.12 Non-Waiver.
A failure by either party to take any action with respect to any default or violation
by the other of any of the terms, covenants, or conditions of this Agreement shall not in any
respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with
respect to any prior, contemporaneous, or subsequent violation or default or with respect to any
continuation or repetition of the original violation or default.
13.13 Consent. Wherever the consent or approval of a party is required under the terms
of this Agreement, the party whose consent or approval is required shall not unreasonably
withhold, condition or delay such consent or approval.
13.14 Certain Representations and Warranties.
(a) The County represents and warrants to RFP the following: (i) all required
approvals have been obtained, and the County has full legal right, power and authority to enter
32
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APPROVED 12/05/05
into and perform its obligations hereunder, and (ii) this Agreement has been duly executed and
delivered by the County and constitutes a valid and binding obligation of the County,
enforceable in accordance with its terms, except as such enforceability maybe limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by
general equitable principles.
(b) RFP represents and warrants to the County the following: (i) all required
approvals have been obtained, and RFP has full legal right, power and authority to enter into and
perform its obligations hereunder, and (ii) this Agreement has been duly executed and delivered
by RFP and constitutes a valid and binding obligation of RFP, enforceable in accordance with its
terms, except as such enforceability maybe limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable principles.
13.15 No Representation as to Operation Results. The County recognizes that Operating
Revenues for the Facility are incapable of being estimated with reasonable certainty given that
the recreation industry as a whole fluctuates based upon general economic conditions, current
trends in recreation, available income of patrons, competitive facilities, and a variety of rapidly
changing factors beyond the control of RFP. RFP has made no and disclaims any purported or
actual representation or warranty as to the results which can be expected from the ownership and
operation of the Facility including, without limitation, the Operating Revenues, or Operating
Expenses or the accuracy of its projections and estimates thereof. The County recognizes and
accepts that all budgets and projections represent RFP's estimate of the expected expenditures
and revenues and that RFP is in no way responsible or liable if the actual expenditures and
revenues are more or less than that projected (unless and only to the extent such situation is the
result of a breach of this Agreement by RFP).
13.16 Governing Law; Consent to Venue and Jurisdiction.
This Agreement will be governed by and construed in accordance with the
internal laws of the State of North Carolina, without giving effect to otherwise applicable
principles of conflicts of law. The parties hereby expressly agree that this Agreement is made
and is to be performed solely in Orange County, North Carolina, and hereby consent to the
subject matter and personal jurisdiction of the North Carolina state courts sitting in Orange
County, North Carolina and to venue in Orange County, North Carolina.
SIGNATURES ARE ON THE FOLLOWING PAGE.
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APPROVED 12/05/05
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Orange County, North Carolina
f _,
~z~~~~
p
~`'~ ~aco~t°
ATTEST: F1
By: '~~~"
Barry Jacobs,
Orange Couy7'
Donna S. Baker, Cl~'k'to the Board of
Commissioners
This instrument has been pre-audited
in the manner required by the Local
Government Budget and Fiscal Control
Act.
`/G
Finance Director
Recreation Factory Partners (a division of
IV Sports Factory, LLC)
By:
Name: ~ .
Title: LL anager, IV Sports Factory, LLC
34