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HomeMy WebLinkAboutAgenda - 11-02-2005-9aORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 2, 2005 Action Agenda Item No. R-q SUBJECT: SportsPlex Facility Management Agreement DEPARTMENT: Manager/Attorney/Purchasing/ Finance PUBLIC HEARING: (Y/N) No ATTACHMENT(S): RFP Management Overview Facility Management Services Summary Proposed Agreement with RFP INFORMATION CONTACT: Rod Visser, 245-2308 Geof Gledhill, 732-2196 Pam .!ones, 245~~2652 Ken Chavious, 245-2453 PURPOSE: To review and approve an agreement between Orange County and Recreation Factory Partners, Inc. to provide overall facility management for the Triangle SportsPlex, upon the County's anticipated closing on the acquisition of that facility in December 2005, BACKGROUND: Since 2004, County staff have been working at the direction of the Board of Commissioners to perform due diligence analysis regarding the County's potential interest in acquiring the Triangle SportsPlex property. The County's interests relate not only to recreation opportunities, but also to a proposal to construct the new Central Orange Senior Center in conjunction with an expansion of the SportsPlex. The SportsPlex is an 82,000 square foot facility in the Meadowlands Business Park in Hillsborough that provides a regulation ice rink, three swimming pools, fitness equipment, and other recreation amenities, The County operates a small senior center in rented space on property immediately adjacent to the SportsPlex property, Co-location of the SportsPlex and new senior center offers the opportunity to: 1) keep a widely used community recreation facility in place; 2) mare quickly bring on line a new senior center that can be built at lower overall cost than a standalone facility; and 3) operate both the recreation facility and the senior center more cost effectively by spreading certain fixed casts aver several different operations In June 2005, the BOCC approved a contract to purchase the SportsPlex property subject to several contingencies, including Hillsborough approval of the senior center expansion development application, securing of bank financing for the acquisition, and North Carolina Local Government Commission (LGC) approval of the financing proposal, As reported at the October 18 BOCC meeting, the County has secured the approval of the Hillsborough Board of Adjustment for the senior center expansion and favorable short-term financing for the $6 million acquisition price from Bank of America at a variable interest rate estimated at about 3,15%, LGC review of the County's financing proposal is docketed for December 6, 2005, If that is approved, staff anticipate closing on the SportsPlex property no later than December 16, 2005, Consistent with previous direction from the Board that County employees not operate the SportsPlex, staff have been working to identify a recommended contractor to manage the overall SportsPlex facility. As discussed at the Board's September 16 meeting, staff are recommending that the County contract with Recreation Factory Partners (RFP), Inc, to accomplish this function. The Orange County Department on Aging will provide programming for the Senior Center, but RFP would manage/support/maintain the physical space that houses the Senior Center. At the outset of the County's ownership of the SportsPlex, RFP would provide programming for all other aspects of the facility (e.g, ice, aquatics, fitness, food service) using a combination of existing staff and management support from other RFP regional facilities. Over time, it is conceivable that other subcontractors might be sought to operate various programs within the SportsPlex with the review and concurrence of the County, The proposed contract period would run from the County's closing an the SportsPlex property through the end of June 2008. This two and a half year pilot facility management period would afford RFP adequate time to demonstrate its vision and ability to execute a strategic plan for the facility's service to the Orange County community, and would permit renewal of the agreement if the County and RFP are mutually satisfied with the arrangement through FY 2007-08, As suggested by the Board, staff considered management contracts from several other local government jurisdictions already engaged in the general recreation management field. The County Attorney drafted the attached management agreement with RFP while borrowing heavily from an existing well-conceived Cabarrus County contract. The County's project manager has prepared a summarized version of the major deal points of the management contract, which staff will review with the BOCC at this November 2 meeting. John Stock, principal and founding member of RFP (previously introduced to the Board as Ice Ventures), will attend the meeting and present background information about his company's approach, capabilities, achievements, and core competencies, as outlined in the attached management philosophy statement. RFP owns, operates, and/or manages seven ice-related facilities across North Carolina and offers an additional benefit to the SportsPlex operation through its ability to call on in-house specialist expertise as needed from elsewhere in its North Carolina operations. FINANCIAL IMPACT: The agreement provides for a monthly management fee of $6,250, or $75,000 per year, The recent Blackman & Sloop CPA audit of 5portsPlex revenues and expenses for the year ending May 31, 2005 reflected overall operating expenses of nearly $2..2 million, of which salary and payroll expenses constituted about $840,000, The cast of this agreement will be paid through the SportsPlex operating budget, which will be maintained in an enterprise fund that is separate from the County's General Fund, The BOCC will approve an interim SportsPlex operating budget for the balance of FY 2005-06 in December, and approve an operating budget for the SportsPlex Fund for each subsequent year as part of the County's annual budget process, RECOMMENDATION(S): The Manager recommends that the Board approve the agreement with Recreation Factory Partners, Inc„ subject to final review by staff and the County Attorney, and authorize the Chair to sign it. 3 the '®" eaf sfmj • flay Recreation Factory Partners: RFP (formerly Ice Ventures) is the largest regional manager, developer and operator of ice and indoor soccer and related recreation based facilities. The company provides comprehensive recreational facilities as well as developmental, camp and specialty sports schools supported by fully trained professional staff. RFP is the leader in learn to skate, hockey and early childhood programs such as the proprietary Mice-on-Ice and Rink Rats schools and the Just for Kicks soccer development academies. RFP has carefully developed athletic and recreational programs designed to promote both excellence in achievement with equal emphasis on fun, recreation, safety and enjoyment. RFP is a division of IV Sports Factory and responsible for providing management services to ice and other recreation facility operations. RFP is recognized as a premier management company in this industry, Its professional staff delivers a tested management product that assures the maximization of facility revenue while offering extensive expense control. Additionally, RFP is recognized as the leader in specialized youth program development and continues to develop innovative methods to further maximize revenues while offering facility clients the best there is in program methods and training. Existing Facilities: • Cary Ice House (single ice surface, snack baz, restaurant. arcade, pro shop) • Gazner Ice House (single ice surface, snack bar, pro shop, conference rooms) • Pineville Ice House (single ice surface, training/fitness room, pro shop, snack bar) • Greensboro Ice House (single ice surface, snack bar, pro shop, arcade) • Eastland Mall Ice House (single surface, pro shop, arcade) • Wilmington Ice House (single surface, pro shop, snack baz, arcade, fitness room) • The Factory (two ice sheets, two soccer/in-line sheets, full service sports store, multiple concessions, outdoor synthetic soccer surface, private lounge, and multiple party rooms). In aggregate, these facilities make up 50% of the market share of all similar ice and indoor soccer facilities within North and South Carolina. Background: Initially founded as Ice Ventures over 10 years ago, The Company began as benevolent venture to protect the family values mission of the only private ice rink in Wake County NC: The Cary Ice House. After installing professional business practices and a new general manager (Brenda Stock, wife and business partner of .loin Stock, one of the Ice Ventures founders), The Cary House began to prosper and the partnership decided to build a second rink in Garner, NC. Six years ago the only two rinks in Charlotte were acquired as well as the only rink in Greensboro. Wilmington was built by affiliated partners. When the decision was made to acquire Charlotte/Greensboro in 1998, the major equity partner, John Stock left his other business interests to concentrate fully on developing Ice Ventures, as well as establishing a new division, Ice Ventures Partners, to seek out management contracts, consulting engagements and other new projects or acquisitions.. The preceding lead to the decision to invest in the building a new concept based on multi-venue recreation and related venues, The major capital required to acquire, renovate and up fit a 200,000 square foot building on 40 acres required a further restructure of the company. Ice Ventures continues as the affiliated operating arm of the original ice rinks and Recreation Factory Partners was established as the division to manage and oversee both the multi-venue Factory as well as new management engagements. All necessary support resources such as preventative admittance, finance, legal, logistics, strategy planning and day to day management have been incorporated into Recreation Factory Partners. Our People• Mana~in~ Partner and Chief Operating Officer John Stock: A Canadian economics and commerce graduate from the University of Western Ontario and University of Toronto respectively, .Iohn is also a Chartered Accountant. He began his career with Price Waterhouse in Toronto and quickly moved into their management consulting practice. After an eight year career with PW, John held senior finance position with Fortune 500 companies culminating in CFO assignments prior to moving into general management 20 years ago, He has served in chief operating officer capacities prior to being moved by his parent company to North Carolina 12 years ago as CEO of Emco Wheaton.. John served as a board member and advisor to Ice Ventures/RFP until he assumed managing partner responsibilities 6 years ago. He also serves as a board member of USA Hockey. Preventative Maintenance: Given the inherent complexities and risk associated with the complex refrigeration infrastructure required for ice rinks, the company utilizes internal support for weekly preventative visits to all installations. These intensive preventative maintenance visits are performed by Randy Lee and Sandy Lamarre who collectively have 18 years of management and ice rink maintenance experience and have EPA refrigeration certification, Certified Ice Technician (STAR) and are enrolled in continuing education for associates level degrees in refrigeration technology. Accounting: David Hushek, CPA: David provides CFO level support for all RFP locations.. Brenda Stock: Brenda has maintained the books and records of all Ice House facilities for the past 8 years and will lend practical day to day support for all business processes.. s Marketing: Meredith Linden: Meredith is a graduate of,journalism and public relations from UNC Chapel Hill and provides guidance for all marketing communications of all RFP entities. Logistics/Consulting: Jerry Magin: Jerry is a private sector senior consultant whose practice has provided business process consulting services for companies all over the world, most recently Rolls Royce, Jerry is also an RFP partner and available to assist in all complex business process areas. Building Infrastructure: Jeff Ammons:.Ieff is an RFP partner and Factory owner who is also an equity partner in a commercial and home building builder. Of note his company built and still manages Springmoor Retirement Village in Raleigh. Legal: Chief Counsel: Ted Oliver, Manning Fulton and Skinner Internal Counsel: Mitchell Hatchett, attorney and RFP partner Programs; Brenda Stock: RFP partner who is a former teacher, Canadian national Figure skater, ice rink general manager, and developer of all RFP early childhood based programming. Brenda designed the proprietary Mice on Ice, Rink Rats and .Just for Kicks (Mini-Kickers) programs. Hockey: RFP partners: Glen Wesley- current player with Carolina Hurricanes Jeff Daniels- assistant coach with Carolina Hurricanes Steve Halko- farmer player with Carolina Hurricanes and now account executive with Merrill Lynch RFP advisors: Mark Hamlett- AHL Official and asst.. general manager Factory Ice House Blake Wesley- Okanagan Hockey Academy (oldest hockey academy in North America) Figure Skating: Valerie I{noptx former Disney on Ice performer, National level canpetitor performer, Gold certification at all levels, Member of Professional Skaters Association and LTSFS. Skating Director Jar 7 years. Brenda Stock: former Canadian National level competitor, curriculum writer for Ioc Cats, Mice on Ice and .Just for Kicls youth programs. Program Director for I 1 years. Advisor~Board: Greg Akers: Chief Technology Officer, Cisco Systems, and Factory shareholder Jerry Ma ig 11: Business Consultant Justus Everett: Raleigh business owner Our Flagship Facility: The Entertainment and Sports Factory ("Factory") is designed as a unique family oriented fitness, recreation and sports complex, It features: • 40 acres, including a 20 acre baseball/sof4ba11 complex and restaurant out parcels. • A 200,000 sq. ft. main building featuring twin NHL sized ice rinks, hockey, a full sized XI, Turf soccer field, youth and adult soccer, lacrosse, figure skating, batting cages, basketball, go-carts, health and fitness club, Raleigh's largest specialty hockey and soccer sports store, banquet hall, private party rooms, various retail outlets and restaurants. Complementing the sports & recreation theme, the complex features spacious common azeas and multiple entrances. The site provides ample parking for the 1.3 million anticipated annual visitors. Consultant Studies: The town of Wake Forest engaged Kimley-Hom to evaluate similar facilities around the country to assess economic impact and trip generation. They concluded that the most similar facility was in Orlando, Florida. This facility generated a daily vehicle generation to the site of 1,740. Many of the vehicles contained multiple passengers. It is therefore estimated that the facility would attract an average of 3,500 visitors a day or approximate 1,.3 million annually. This excludes the major additional impact of tournaments and competitions. These numbers are significant not only for' the core business, but also for ancillary revenue generation such as retail, snack bar, vending, banners, dasher board, sponsorships, etc. Maior partner in The Factory: Ammons Development Corporation: For over .30 years, the Ammons family has been developing and building in the Raleigh area, They have established a solid reputation for excellence, developing more than 3,000 acres and providing communities that still bear the family name. Their most recent project is Heritage Wake Forest, amixed-use community offering housing, commercial, and office space, all in close proximity. Heritage will consist of over 3,000 homes and a 100-acre business park. This concept is similar to other Ammons projects such as Greystone Village in North Raleigh, the Village at Nag's Head, and North Chase in Wihnington. Springmoor Retirement Village has become one of the nation's foremost life care retirement communities and continues to be managed by Ammons Development Corporation. They also manage the Heritage Golf and Country Club. Ammons Communities: • Lake Park (North Raleigh, 87 acres) • Hidden Valley II (North Raleigh, 65 acres) • Greystone Village (North Raleigh, 650 acres) • Greystone Parlc (North Raleigh, 20 acres) • Eagle Chase (East Raleigh, 600 acres) • East Park (East Raleigh, 600 acres) • Village at Nags Head (Nags head, 400 acres) • North Chase (Wilmington, 750 acres) • Springmoor Retirement Village (North Raleigh, 30 acres) • Heritage Wake Forest (Golf Club Community with 3,000 homes) • Franklin County (new Golf Club Community similar to Heritage) Recreation Factory Partners: Management Services Contracts Recreation Factory Partners (RFP) is a division of IV Sports Factory and responsible for providing management services to ice and other recreation facility operations, RFP is recognized as a premier management company in this industry. Its professional staff delivers a tested management product that assures the maximization of facility revenue while offering extensive expense control.. Additionally, RFP is recognized as the leader in specialized youth program development and continues to develop innovative methods to further maximize revenues while offering facility clients the best there is in program methods and training. For new facilities, RFP may be the design and construction entity becoming involved from the architectural and engineering phase. As the operating management entity RFP typically commences this phase of its engagement six months prior to the opening of a facility and is extensively involved in consulting and start-up. For existing operations where RFP is engaged as the new management company changeover can be accomplished within a relatively short time frame as the facility transitions to making RFP responsible for all aspects of facility operation. For new operations, the transition from the consulting phase to the management phase is seamless as RFP is responsible for getting the building operational while RFP focuses on initial and continuing operation and programming, For a period of six months prior to opening, the entire organization is vigorously focused on assuring facility ownership that the building is operating at full potential on the first day of operation. The ongoing management program offered by RFP is fully comprehensive of all facility and business operations, RFP views its role in two distinct and critical phases, Phase One is the pre-opening phase and Phase Two is the continued operation phase. Phase One -Pre-Opening (PO) Prior to the start of operation there is an extensive punch list of tasks that must be done. The ~j PO program is focused on staffing, initial programming and marketing. During this phase RFP is responsible for accomplishing the following: • Interviewing and Hiring o General Manager ^ Assistant General Manager ^ Office Manager • Director of Hockey Instruction ^ Director of Figure Skating Instruction ^ Maintenance Manager ^ Pro Shop Manager (unless subcontracted) ^ Concession Manager • Other key managerial/supervisory personnel • Hiring and training all other staff in all phases of facility operation as necessary. • Establishment of cash collection and control procedures, • Training of all staff on systems and practices including the POS front-end system and the accounting package. • Establish pro-shop processes and inventory, pricing and setup with staff training, • Establish food service and or snack bar inventory, pricing, and setup with staff training. • Establish all rink inventory control procedures. • Development & implementation of all programs including formats and schedules for skating school, pre-school, private lessons, group functions, private ice use, specialty programming, special events and exhibitions, • Develop a complete marketing and advertising plan, promotions and public relations, both prior to opening and on-going marketing strategies. This shall include community interactions and public relations with the elementary, middle and high schools, daycares and churches. • Assist in the preparation and execution of a plan for opening and operating the facility.. • Finalize staffing plan for initial operation. • Finalize emergency plan. • Set-up payroll procedures and payment procedures (either in-house or subcontracted), • Set up banking relationships and accounts as necessary. • Setup credit card servicing relationships as necessary. • Finalize liability and property insurance commitments and binders. • Finalize health insurance plan and register all participants. • Complete necessary registrations with appropriate state and federal business authorities. • Complete necessary registrations with appropriate state and federal taxing authorities. • Preparation and execution of long-term user agreements. • Registration with overseeing bodies of hockey and figure skating, • Registration of programs with appropriate leagues as necessary. • Prepare punch lists of necessary items for programming and secure these items. • Establish necessary relationships with supply vendors o Cleaning o Blade Sharpening o Refrigeration Maintenance o Payroll o Office Supplies o Utilities o Waste Disposal o Food Supply o Vending o Snow Removal o Lawn Maintenance o Postal/Mailing o Advertising o Operating Supply o Elevator Maintenance o Electrician o Plumbing This process assures that the facility is in full operation on opening day, It is essential that a facility has completed all necessary tasks prior to opening to assure that revenues generated as of day one are maximized and that the operation is presented to the public in the most professional and customer service focused manner., As the management company, RFP is fully responsible for every aspect of the operation on behalf of the ownership, Owner participation in reviewing the plan and providing observations and input is most welcome. Overall we view every member of ownership and management as a team that will have a profound influence on the success of the facility. Phase Two -Continued Operation Once operational, every facility is in constant need of supervision and guidance. This is the nuts and bolts of the operation where the year of experience provided by RFP's senior management is essential to ensure the execution and success of the plan that ownership and management have agreed to. Most importantly, in this phase RFP constantly analyzes the performance of the facility against both budgeted expectations and versus our extensive base of comparable facilities. This allows the highest degree of control possible and assures ownership that their investment is being closely managed and supervised. Additionally, through this method we are able to identify specific trends in the recreation industry and adapt future programming to maximize revenues based on the actual demographics of the market. This ability to analyze and adapt and modify the longer term strategic plan is the best insurance of successful future performance ~~ Continued Operation also requires constant review, supervision and participation in key decision making with on-site management and ownership regarding the following: • Quality of Programs Offered • Quality of Overall Services at the Facility • Staffing -both management and support • Overall Financial Performance • Revenue Analysis • Expense Breakdown -Comparison and General Analysis • Cash Control Procedures • Forward Planning (Short term plan and Long term Strategic Plan) Operating Procedures By utilizing a local General Manager and specific staff with supervision from RFP we are able to remain at arms length and objectively review each business.. Our corporate office is staffed with seasoned professionals in all areas of facility management as follows: o Pro Shops o Maintenance o Food Concessions o Marketing o Advertising o Hockey Development o Figure Skating Development o Finance o Chief Executive and Chief Operating functionality These professionals constantly review the performance of the facility within their own areas of expertise and provide corrective action and training as required. This provides for constant evaluation at the operating level against the plan and operating budget as well as extensive senior level support and guidance.. This is the RFP formula that has provided success for other facilities in the recreation business, It is a formula that spreads the accountability and risk amongst both on-site management and central office and ensures that any staff turnover does not disntpt operations at the facility and ensures continued future growth and success.. Turnover at recreation facilities tends to be quite high when compared to most other industries due to the both the seasonal nature of the sector and the extensive use of student and athlete labor.. Our program anticipates this factor and allows for seamless continuation of operations. RFP regards its primary role to act on behalf of and in the best interests of ownership, in essence in a manner that the owners would themselves. We have industry core competence and as the experts, view that role very seriously. We are therefore confident that RFP is the best insurance ownership can provide to protect its significant investment in a unique and specialized business. Sportsplex Agreement: Orange County/RFP ~' SPORTSPLEX FACILITY MANAGEMENT SERVICES SUMMARY Prepared 10/26/05 1, Purpose. This summary outlines the major "deal points" contemplated in a comprehensive agreement ("Agreement") between Orange County, North Carolina ("the County") and Recreation Factory Partners ("RFP",) presented for approval at the November 2°d, 2005 BOCC meeting, The proposed Agreement for approval is attached to this summary, 2. Subject Matter. RFP will act as the County's contract facilities manager for the Triangle Sportsplex and Central Orange Senior Center ("Facility'). RFP will provide these services for a period beginning at the Closing of the facility, currently scheduled to occur on or about December 16th, 2005, through June 30`h, 2008 ("Management Term"), RFP will perform these services for a fixed rate of $6,250,00 per month, ($75,000 per year). This management fee will be included as a line item in the interim FY05/06 operating budget for the Facility that will be presented to BOCC on December 13`h, 200.5. RFP duties in managing the facility are as follows: a) To promote, operate and manage the Facility during the Management Term to include but not be limited to: 1, performing as the sole and exclusive Manager; 2, having the authority over day-to-day operations of the Facility and all activities therein, provided that RFP follows all policies and guidelines of the County (These policies and guidelines could include, for example, a requirement that RFP pay its full time staff members working at the Sportsplex a wage or salary equal to or greater than the County's "living wage,"); 3, performing to a standard that includes 1) decreasing the County's General Fund yearly subsidy to the Facility; 2) Increasing the efficiency of events and programming occurring at the Facility; and 3) Improving the quality of the events and programming occurring at the Facility; 4, Formulate and gain approval from the County an annual operating budget that will serve as the benchmark for performance and accountability for the Facility, as well as a benchmark for Programming coordination for the various activities using the Facility. b) Specific Services will include: 1. Employing desirable and adequate personnel as members of RFP; 2. Administering relationships with all subcontractors, concessionaires and all other contracting parties to any future or pre-existing agreements; 3, Managing all "plant and facility" issues to include but not be limited to grounds, major mechanical, electrical and plumbing systems; normal maintenance and cleanliness, and preventative maintenance; 4. Establish rates and programming and event schedule coordination with the programming providers ("Programmers") in the areas of water programming and events, ice programming and events, fitness, food and beverage, including Sportsplex Agreement: Orange County/RFP .a programming of Senior Center use of the water, ice, fitness and food and beverage venues; 5, To fully support the Programmers in their endeavors to provide the highest quality programming in their individual areas; 6. To report to the County Administrator on a scheduled basis an operations summary, Although RFP will not have responsibility for capital improvements to the Facility, RFP will consult with the County within this operations summary reporting protocol on needed capital improvements and the budgeting process for this. c) All revenue from the operation of the Facility, including County appropriations, and all expenses incurred in the operation of the Facility, will be accounted for by RFP. 3, Other Matters. The term is finite, Renewal, if chosen by the County, will be negotiated within a reasonable amount of time of the expiration of the initial term, All revenues generated by the Facility will be the property of the County, All records pertaining to the Facility are the property of the County. 4, Independent Contractor. Each party is, and shall remain, an independent contractor with respect to all services performed under this Agreement, Nothing is intended or should be construed in any manner as creating or establishing the relationship of co-partners between the parties or as constituting either party as the agent, representative, or employee of the other for any purpose or in any manner whatsoever, Each party represents that it has or will secure at its awn expense all personnel required in performing their respective services under this Agreement, Any and all personnel of either party or other persons engaged in the performance of any work or services under this Agreement shall have no contractual relationship with the other party, and shall not be considered an employee of any other party, Any and all claims that might arise under the lJnemployment Compensation Act, the Workers' Compensation Act of the State of North Carolina, or any other applicable Federal or State law, rule, or regulation on behalf of said personnel, arising out of employment or alleged employment, including, without limitation, claims of discrimination against either party, its officers, agents, contractors, or employees shall in no way be the responsibility of the other party. To the extent permitted by law, each party shall defend, indemnify, and hold the other party, its officers, agents, and emplayees harmless from any and all such claims, Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the other party, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Re-Employment Insurance, disability, severance pay, or PERA. 5, No Assignment. The County and RFP agree that neither party may assign or transfer any rights nor obligations under this Agreement, directly or indirectly except upon the prior written consent of the other party, Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns, 6. Timeline. The following timeline and text illustrates the critical points in establishing RFP in its role and the necessary budget process: -3 E E E N N O Z' d O N .. d U N II O O "a N GO W 2 J W F W W U J ~ O I- d W N a W m ~ m a~ W a ~ W d Q ~ O U c o j ~ ~a U U + U ~ ~ e ~ M (p i tD a z' ? t" U d r i n K z r ~ _' s Y , . O ~ O Z u ~ ~ N aaa LL LL LL ~ ~ ~ .~ ~ ~ ~ .~ In m : m mNN N UI N l d U O ` a U ~ U d d m m 0 1- N c ~ c ~ v ~ E N C N d ' O 1~ m = N ~ Q U C9 ~ N m N ~ va~ me ~ w ma O -m~E v U ~ ~ c mm °I o m a a m ' m~ ~ C O o rn ' c m '. U m a°i o a c o : ~ l E m~ U a .. c0 N a a i y '. O Ot N G C m N m m > o o m w ~ ~ N~ m N ,.;a h ~ Q N 4 d ,.; > o ~'¢ G oU~' o ~~¢ a` ~U . r- U'~ o '.~ y .. IJ.N <OI m O U U Q J d Q c O a U A 0 V A u a v V i~- MANAGEMENT AGREEMENT BETWEEN ORANGE COUNTY, NORTH CAROLINA AND RFP Dated as of ~5 MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (this "Agreement") dated as of the 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 N Sports Factory, LLC), 14.39-200 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 1: "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. ~~ "Capital Equipment" -any and all furniture, fixtures, machinery or equipment, either additional or replacement, having a per item original cost of 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 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; 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 and ending 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 staffing 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 maziual provided by RFP to the County containing certain operating and employment policies customarily utilized by RFP in connection with the management of a public assembly facility such as the Facility, which manual has been mazked as last revised on ~ l~ "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. 1~ "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 cwnrnissions,,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 height 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 arry, 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 23(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 hnprovements and Capital Equipment purchases and any expenses relating to RFP personnel based in RFP's corporate headquarters or its regional f eld 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 surchazges (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, ifsuch revenues are collected in the frst 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 aclmowledge that revenues from the sale of tickets for 4 IS events at the Facility are not Operating Revenues, btrt 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 Benclunar'k" -shall equal ( )for 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 products at the Facility, if such changes ar'e agreed upon by the parties hereto. The Operating Revenue Benchmark shall automatically adjust on the first day of each subsequent Fiscal Year to equal the amount of three (.3) year average of the total Operating Revenues for the previous three Fiscal Years; provided, however, in no event shall the Operating Revenue Benchmark for any Fiscal Year hereunder be less than "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, and that are listed on Exhibit hereto. "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 1.3.7 hereof: 2. Engagement of RFP; 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 Tenn, if any, upon the terms and conditions hereinafter set forth, and RFP hereby accepts such engagement. IG (b) Manager of the Facility. Subject to the ternrs of this agreement, RFP shall be the sole and exclusive manager to manage, operate and promote the Facility during the Management Ternr 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 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 firrther that to the extent that such policies or guidelines hereafter established or modified by the County adversely affect revenues or expenses at the Facility, then and in that event, the Benchmark shall be appropriately adjusted so that it reflects the reduced revenues resulting from such established or modified policies or guidelines. (c) Anproval 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 L.R.S. Revenue Procedures and Rulings, including Revenue Procedure 97-1.3, 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. a~ 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 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'tlre 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 nanie, 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; a~ (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 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; as (m) In consultation with the County, evaluate and adjust the operational structure of the Facility as needed; (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; (p) Prepaze and submit proposed budgets and annual plans as further provided herein; (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 thatrs 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 arty independent liability for any failure to do so. 9 ~3 2.5 Confidentiality/Nondisclosure. (a) 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 al] 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 hiformation 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 maybe 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 pernission of RFP, (b) Snecific 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 10 a ~- (whether at law or in equity), to temporary and permanent injunctive relief without the necessity of proving actual darnage 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 reaffirnration 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 carmot 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, 200(. RFP and County shall, prior to the date the County closes on the purchase of the Facility budget for the Transition I1 a5 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 approvah 3.2 Management Terrn and Renewal Term. (a) The "Management Term" of this Agreement shall commence nn 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 ]ras 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 Terns 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 Tenn, and RFP, provided it is not in default (as described 12 a~ 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 comrection 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 Onerating_Funds. 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 al] 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 an interest-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 13 a~ 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 1tFP 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 leas 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 ternrinate 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 14 ag 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 Modifcations Initiated by 1ZFP. 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 an~ended 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 lazger or smaller as the case may be 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/Pr'ofit 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 IZFP'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. Al] revenues collected by RFP from the operation of or in 15 ~G 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 comrection 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, ifany, 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 Co determine whether and to what level to fund Capital Improvements and Capital Equipment purchases to the Facility. 59 Funding ofFacility. 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 mamrer negate any payment obligations of RFP set forth in this Agreement. 16 ;~v 5.10 Funds for Emer~ency 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 suclr 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 tlris 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, barilc 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 demonstrates that the Operating Revenues or Operating Expenditures reflected in any financial 17 ~i statements prepared by RFP and audited as specif ed 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 Monthl}_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 may be 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 Employees. (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, 18 3~ terminate and discipline any and all persormel 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 al] costs related to their employment shall be an Operating Expense. 7.2 RFP Employees. As of the date hereof, there are full-time R.T.. Holdings employees at the Facility, none of whom aze union employees, and 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 hazniless 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, offcers, 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 19 33 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. 20 .~ 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 Dollazs ($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 appeaz, 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 insurazrce company or tluough the North Carolina State Compensation brsurance Fund or through an authorized self-insurance plan 21 3S 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 anrount 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 acid 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 22 ~ (o 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 aninsurance 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 softwaze 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 may be 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 irrunediately 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 County Obligations., Except as herein otherwise set forth, tlnoughout 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 wlrich the County may be bound, and RFP shall reasonably cooperate with the County in t}ris regard, 23 3~ 10. Assignment; Affiliates. 10..1 Assi~rrrnent, 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 RFP's obligations under any credit facilities provided to it by such lender(s), provided that such collateral assignment shall not in any event cover ItFP'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 RFP'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'mernbers, users or an event, }2FP 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 12FP in applying for such permits and licenses, but the County itself shall not necessazily 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.,12FP 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 }3FP's direction and the County has supplied funds for the payment of charges therefor in accordance with this Agreement. 24 3£?, 11.2 Governmental Compliance„ 1ZFP, its officers, agents and employees shall comply with all Laws applicable to RFP's management of the Facility hereunder. With respect to the ADA,1tFP 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 12FP 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, RFP 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 comrection 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 srunmary ejectment procedures shall not be applicable to any termination of RFP's rights to manage the Facility hereunder. 25 ~~ 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 terninate 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 12FP'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 73, 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. 26 ~-o 12.4 Surrender of Premises. Upon ternination 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 oilier than materials containing RFP's Confidential Information shall be immediately surrendered to the County by RFP upon termination. 13. Miscellaneous. 1:3.1 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 chazges, to the extent applicable, for use of'tlre 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 incurredrn 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 ofpriority 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 41 constitute a breach hereunder by the County. Except as otherwise provided in this Agreement, RFP has no responsibility whatsoever for such Senior Center. 1.3.2 Cooperation/Mediation. (a) The parties desire to cooperate with each other in the management and operation of the Facility pursuant to the ternrs 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 rnatter will he resolved pursuant to Section 1.3.2(b) below. (b) The parties may agree to mediate any dispute arising hereunder, The pazties 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 he 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, 28 4a (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 1.3,2 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 detern~ination 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 1.3,2 are pending, The parties will take such action, if any, required to effectuate such tolling, 1.3,3 No Ageney, 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 off cers, agents or employees of RFP shall be or be deemed to be employees or agents of the County for any purpose whatsoever.. 1.3..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 teen "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 43 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. Irr 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 conhol 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 Assi~rrs; 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. 30 ~-9" (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 ofthis 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 pazty may designate by written notice given to the other party in accordance herewith. To the County: Cowrty 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, L,LC) 1439-200 S. Main Street Wake Forest NC 27587 Attention: LLC Manager 'Telecopy: 31 q-S With a copy (which shall not constitute notice) to: Attention: Telecopy: 1.3,9 Section Headines 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, 1.1.10 Counter~azts, 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 pazts 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 pazty 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. 1.3.14 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 frill legal right, power and authority to enter 32 4{0 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 may be 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 Iras 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. 33 ~i-7 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 By: ATTEST: Donna S. Baker, Clerk to the Board of Commissioners This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Director Moses Carey, Jr., Chair Orange County Board of Commissioners Recreation Factory Partners (a division of N Sports Factory, LLC) By: Name: Title: LLC Manager, IV Sports Factory, LLC 34