Five Flags Management Agreement
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MEMORANDUM
June 16. 2004
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen. City Manager
SUBJECT: Five Flags Management Agreement
On May 17. 2004. the City Council voted to enter into a contract for private
management of the Five Flags Center and that the City Manager should negotiate a
contract with SMG.
Leisure Services Manager Gil Spence is recommending approval of the negotiated
contract.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
(I11~¡j {~jJ¿¡ZC
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl. Corporation Counsel
Cindy Steinhauser. Assistant City Manager
Gil D. Spence. Leisure Services Manager
(,:
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CITY OF DUBUQUE, IOWA
MEMORANDUM
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June 15, 2004
TO: Michael C. Van Milligen, City Manager
FROM: Gi! D, Spence. Leisure Services Manag~
SUBJECT: Five Flags Management Agreement
INTRODUCTION
The purpose of this memorandum is to request City Council approval of the Five Flags
Management Agreement with SMG.
DISCUSSION
On May 17, 2004 the City Council voted to enter into a contract for private management
of the Five Flags Center and that the City Manager should negotiate a contract with
SMG.
Attached is a copy of the Management Agreement negotiated with SMG. Input on this
agreement was provided by Leisure Services Manager Gil Spence, Corporation
Counsel Barry Lindahl, Finance Director Ken TeKippe, Personnel Manager Randy
Peck, and insurance advisors Frank O'Connor and Richard Friedman.
The following are the major points of the Management Agreement:
. Management Term is for five years beginning July 1, 2004 and includes a five-year
renewal term, at the option of the City Council.
. City employees will transition to SMG employment as follows:
./ Civic Center Manager and all part-time employees on October 1, 2004.
./ Events Coordinator, Technical Director, Concessions Manager and Building
Supervisor on January 1, 2005.
./ Two Utility Workers on January 1, 2006.
./ The two current vacant positions and all other new hires will become SMG
employees at the time of hire.
continued
Five Flags management agreement
page two
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. City will approve all booking/scheduling policies and fees and charges.
. Fixed fee is $75,000 per year which is adjusted upward annually by the percentage
change in the Consumer Price Index - All Urban Consumers (CPI-U) - U.S. City
Average - All Items.
. Incentive Fee shall be 50% of the amount the actual Net Operating Loss is less than
the Net Operating Benchmark.
. The Net Operating Benchmark will be calculated by using the average property tax
support for FY 2002, FY 2003 and FY 2004. It will be adjusted upward annually the
same way as the Fixed Fee.
. An annual plan and annual budget will be submitted for review by the Civic Center
Advisory Commission, City Manager and City Council.
. SMG will establish a $30,000 marketing fund for use by SMG to attract new events
to the facility.
. SMG will provide $75,000 for capital improvements and capital equipment
purchases relating to revenue generating projects for the facility.
. City and Dubuque Community School District non-ticketed events will remain rent
free, up to $11,000 in rental fees for such usages. Labor and other costs will be
charged to the user group.
. The City pays for all capital improvement and equipment costs.
Some work has been done to begin the transition of the operation. SMG will be present
at the June 21, 2004 City Council meeting to answer any questions and will begin
meeting with the present staff on June 22nd. It will take a few months to complete the
transition and get SMG up and running, but they are excited to get started.
ACTION STEP
The action requested is that the City Council approve the attached Management
Agreement with SMG for the Five Flags Center.
GDS:et
attachment
MANAGEMENT AGREEMENT
BETWEEN
CITY OF DUBUQUE, IOWA
AND
SMG
Dated as of June 21, 2004
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Doc. #361753v.3
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") dated as
of the 21st day of June, by and between the CITY OF DUBUQUE,
IOWA, an Iowa municipal corporation (the "City"), and SMG, a
Pennsylvania general partnership, whose current address is 701
Market Street, 4th Floor, Philadelphia, PA, 19106 ("SMG").
Whereas, the City is the owner and current operator
and manager of the Five Flags Center (the "Facility") located in
the City of Dubuque, Iowa; and
Whereas, SMG is engaged in the business of providing
management services, including operations and marketing services
for public assembly facilities; and
Whereas, the City desires to engage SMG, and SMG
desires to accept such engagement, to provide management
services for the Facility on the terms and conditions set forth
herein; and
Whereas, the City intends to work in mutual accord
with SMG 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:
"Affiliate" -- a person that directly or indirectly,
through one or more intermediaries, controls or is controlled
by, or is under common control with, a specified person. For
purposes of this definition, "control" means ownership of equity
securities or other ownership interests which represent more
than 40% of the voting power in the controlled person.
"Approved Budget" -- any budget submitted by SMG, as
approved by the City pursuant to Section 5 hereof.
"Capital Equipment" -- any and all furniture,
fixtures, machinery or equipment, either additional or
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Doc. #361753v.3
replacement, which according to the City's past practices is
defined as a capital item.
"Capital Improvements" -- any and all building
additions, alterations, renovations, repairs or improvements
that have an initial dollar cost of not less than $3,000 per
project and an expected useful life of at least ten years.
"City" -- as defined in this first paragraph of this
Agreement.
"City Council" -- the City Council of the City of
Dubuque, Iowa.
"City Manager" -- the senior administrative official
of the City as from time to time appointed by the City Council,
or such person 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 (i) the Group 1 Employees
(as defined in Section 7.2), the three (3) month period
beginning on July 1, 2004 and ending at midnight on September
30, 2004, (ii) the Group 2 Employees (as defined in Section
7.2), the six (6) month period beginning on July 1, 2004 and
ending at midnight on December 31, 2004, and (iii) the Group 3
Employees (as defined in Section 7.2), the eighteen (18) month
period beginning on July 1, 2004 and ending at midnight on
December 31, 2005.
"Event Expenses" - any and all expenses incurred or
payments made by SMG 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, which consists of the Five
Flags Theater, the Five Flags Arena, three meeting rooms and
promenade space, office space and storage areas related thereto.
"Fiscal Year" -- a one year period beginning July 1
and ending the following June 30.
"Management Term" -- the period commencing on July 1,
2004 and ending at midnight on June 30, 2009.
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"Net Operating Loss" -- with respect to a Fiscal Year,
the excess of Operating Expenses for such Fiscal Year over
Operating Revenues for such Fiscal Year.
"Net Operating Loss Benchmark" -- as defined in
Section 4.2 hereof.
"Operating Expenses" - (a) any and all expenses and
expenditures of whatever kind or nature incurred, directly or
indirectly, by SMG in promoting, operating, maintaining and
managing the Facility, including, but not limited to: costs
associated with the operation of food and beverage concession
and catering services at the Facility, employee compensation and
related expenses (e.g., base salaries, bonuses, severance and
car allowances), employee benefits and related costs (e.g.,
relocation and other related expenses pursuant to SMG's
relocation policy (a copy of which shall be provided upon
request), parking and other fringe benefits), supplies, material
and parts costs, costs of any interns and independent
contractors, advertising, marketing and public relations costs
and commissions, janitorial and cleaning expenses, data
processing costs, dues, subscriptions and membership costs, the
costs of procuring and maintaining the insurance and surety and
performance and fidelity bonds referred to in Section 8 below,
amounts expended to procure and maintain permits and licenses,
charges, taxes, excises, penalties and fees, professional fees,
printing and stationery costs, Event Expenses, postage and
freight costs, equipment rental costs, computer equipment leases
and line charges, repairs and maintenance costs (e.g., elevators
and HVAC), security expenses, utility and telephone charges,
travel and entertainment expenses in accordance with SMG's
policies, the cost of employee uniforms, safety and medical
expenses, exterminator and waste disposal costs, costs relating
to the maintenance of signage inventory and systems, the cost of
compliance with laws and regulations, costs incurred under
agreements, commitments, licenses and contracts executed as
provided in Section 2.3(c) hereof, and the fixed management fees
payable to SMG pursuant to Section 4.1 below, all as determined
in accordance with generally accepted accounting principles and
recognized on a full accrual basis; provided that Operating
Expenses shall not include expenses or expenditures in
connection with Capital Improvements and Capital Equipment
purchases, the incentive fee payable pursuant to Section 4.2
below and any expenses relating to SMG personnel based in SMG's
corporate headquarters in Philadelphia, Pennsylvania or its
regional field locations (other than the reasonable costs of
travel by such corporate or regional personnel in connection
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DOC. #361753v.3
with SMG's management of the Facility, which costs shall be
Operating Expenses).
(b) Solely for purposes of (i) calculating Net
Operating Loss and SMG's incentive fee hereunder and (ii)
identifying Operating Expenses which shall be budgeted in
Approved Budgets, Operating Expenses shall include the amounts
paid by the City to cover the costs of the City's employees at
the Facility who remain on the City payroll during the
applicable Employment Periods and shall exclude (A) Event
Expenses which are deducted from the gross receipts of all event
activities at the Facility (in accordance with subparagraph (b)
of the definition of Operating Revenues), and (B) all
extraordinary expenses and all interest, income tax,
depreciation and amortization expenses.
"Operating Revenues" - (a) 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 merchandise
sales, advertising sales, equipment rentals, utility revenues,
box office revenues, parking revenues, food service and
concession and catering revenues, commissions or other revenues
from decoration and set-up, security and other subcontractors
(however, if such revenues are collected in the first instance
by and retained by such subcontractors, 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 SMG
Affiliates pertaining to the Facility, and interest revenues,
all as determined in accordance with generally accepted
accounting principles and recognized on a full accrual basis.
For the sake of clarity, the parties acknowledge that revenues
from the sale of tickets for events at the Facility are not
Operating Revenues, but are instead revenues of the promoter
and/or performer of each such event. To the extent that SMG
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 SMG 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.
(b) Solely for purposes of (i) calculating Net
Operating Loss, (ii) identifying Operating Revenues which will
be budgeted in Approved Budgets, and (iii) calculating SMG's
incentive fee hereunder, Operating Revenues from all event
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activity at the Facility shall be calculated to encompass the
gross receipts from each such event, less Event Expenses.
"Pre-existing Agreement" -- each contract, license,
agreement, option, lease and commitment existing as of the date
of this Agreement that grants any person or entity 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 "A" hereto.
"Renewal Term" -- the five-year period from July 1,
2009 to midnight on June 30, 2014, for which this Agreement may
be renewed at the option of the City Council in accordance with
Section 3.1 hereof beyond the Management Term.
"SMG" -- as defined in the first paragraph of this
Agreement.
"SMG Capital Contribution" shall mean the sum of
$75,000 to be contributed by SMG to the Facility and to be
utilized, as provided in Section 5.12 hereof. The amount of the
SMG Capital Contribution may be contributed by SMG in cash
and/or in property purchased by SMG, provided, however, that if
any such contribution is in property, the value of such property
to be credited to the amount of SMG's contribution hereunder
shall be proposed by SMG and approved by the City (which
approval shall not be unreasonably withheld).
"Systems" -- all computer hardware, software
(commercial or custom), peripherals, technology products,
operational systems, including, without limitation, telephone
systems, HVAC systems, elevator and escalator systems, security
systems and all other automated systems and equipment, and all
components of any of the foregoing.
2.
Engagement of SMG; Scope of Services.
2.1
Engagement.
(a) General Scope. The City hereby engages SMG to
promote, operate and manage the Facility during the Management
Term and the Renewal Term, if any, upon the terms and conditions
hereinafter set forth, and SMG hereby accepts such engagement.
(b) Manager of the Facility. Subject to the terms of
this Agreement, SMG shall be, as agent for the City, the sole
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and exclusive manager of the City to manage, operate and promote
the Facility during the Management Term and the Renewal Term, if
any. In such capacity, SMG shall have exclusive authority over
the day-to-day operation of the Facility and all activities
therein; provided that SMG shall follow all policies and
guidelines of the City hereafter established or modified by the
City that the City notifies SMG in writing are applicable to the
Facility (including without limitation any methodology
pertaining to the allocation of any costs and expenses by the
City to the Facility as permitted herein); provided further that
to the extent that such policies or guidelines hereafter
established or modified by the City adversely affect revenues or
expenses at the Facility, then and in that event, the Net
Operating Loss Benchmark shall be correspondingly adjusted so
that it reflects the additional costs or reduced revenues
resulting from such established or modified policies or
guidelines.
2.2
Scope of Services -- Generally.
SMG 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 SMG's
policies and procedures and the operations of other similar
facilities.
2.3
Specific Services.
Without limiting the generality of the foregoing, SMG
shall have, without (except as otherwise expressly noted below)
any prior approval by the City, sole right and authority to:
(a) employ (subject to Section 7.2), supervise and
direct 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 SMG 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 name as agent for the
City, deliver and administer any and all licenses, occupancy
agreements, rental agreements, booking commitments, advertising
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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 HVAC systems,
elevators, stage equipment, fire control panel and other safety
equipment, staffing and personnel needs, including guards and
ushers, and other services which are necessary or appropriate)
and all other contracts and agreements in connection with the
management, promotion and operation of the Facility, provided
that (i) 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 may
be, such license, agreement, commitment or contract shall be
approved and executed by the City (which approval shall not be
unreasonably withheld) and (ii) with respect to the scheduling
and booking of events at the Facility, the provisions of Section
2.6 hereof shall also apply;
(d) to the extent that Operating Revenues or funds
supplied by the City are made available therefor, maintain the
Facility in the condition received, reasonable wear and tear
excepted; provided that the City shall be responsible for
undertaking all Capital Improvements and Capital Equipment
purchases as provided in Section 5.9;
(e) to the extent that Operating Revenues or funds
supplied by the City are made available therefor, rent, lease or
purchase all equipment and maintenance supplies necessary or
appropriate for the operation and maintenance of the Facility,
provided that the City shall be responsible for undertaking all
Capital Improvements and Capital Equipment purchases pursuant to
Section 5.9, subject to the SMG Capital Contribution as provided
in Section 5.12;
(f) recommend fees, rates and rate schedules for
users of the Facility, which fees, rates and rate schedules are
subject to approval by the City pursuant to the annual budget
process under Section 5 hereof. Notwithstanding the foregoing,
if SMG determines that such fees, rates and/or rate schedules
need to be modified for any event(s) that SMG believes in good
faith shall generate net revenues for the Facility, then SMG
shall be entitled to make such modification, provided that SMG
gives the City Manager advance notice of such modification. In
providing such recommendations and modifications, SMG shall
evaluate comparable charges for similar goods and services at
similar and/or competing facilities;
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DOC. #361753v.3
(g) pay, when due, on behalf of the City, all
Operating Expenses from accounts established pursuant to
Sections 5.7 and 5.8 of this Agreement;
(h) after consultation with the Corporation Counsel
or the Corporation Counsel's designee, institute as agent for
the City and at the reasonable expense of the City, with counsel
selected by SMG, such legal actions or proceedings as SMG shall
deem necessary or appropriate in connection with the operation
of the Facility, including, without limitation, to collect
charges, rents or other revenues due to the City or to cancel,
terminate or sue for damages under, any license, use,
advertisement or service agreement for the breach thereof or
default thereunder by any licensee, user, advertiser, or service
provider 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) manage and operate the food and beverage
concession and any catering services at the Facility, including
setting the prices for such concession items and catering
services with the approval of the City and in connection
therewith, SMG shall evaluate comparable prices for similar
items and services at similar and/or competing facilities; and
(I) engage in such advertising, solicitation, and
promotional activities as SMG 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). SMG shall work with the City's Convention Bureau to
market the Facility for public entertainment shows. In
connection with its activities under this Agreement, including
without limitation advertising relating to the Facility, SMG
shall be permitted to use the terms "Five Flags Center", "Five
Flags Theater" or "Five Flags Arena" and logos for such names in
its advertising, subject to the approval of the City Manager.
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Doc. #361753v.3
Right of Entry Reserved.
2.4
Representatives of the City designated in writing by
the City Manager shall have the right, upon reasonable advance
notice to SMG and at appropriate times, to enter all portions of
the Facility to inspect same, to observe the performance of SMG
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 City may be 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 City under this Agreement. The
City shall not interfere with the activities of SMG hereunder,
and the City's actions shall be conducted such that disruption
of SMG's work shall be kept to a minimum. Nothing in this
Section shall impose or be construed to impose upon the City any
independent obligation to construct or maintain or make repairs,
replacements, alterations, additions or improvements or create
any independent liability for any failure to do so.
Confidentiality/Nondisclosure.
2.5
(a) Confidentiality/Nondisclosure. In connection
with the performance of SMG's services hereunder, each party
acknowledges that each of them (a "Disclosing Party") may
provide the other party and its employees, agents and
subcontractors (including without limitation any architectural
and engineering firm retained for the Facility) (collectively, a
"Recipient Party") with Confidential Information (as defined
below). In addition, in connection with the performance of the
services hereunder, a Disclosing Party may provide to a
Recipient Party with materials that are protected by copyright
of the Disclosing Party.
(i) Each Recipient Party agrees that to the
extent permitted by law, it shall keep secret and confidential
any and all Confidential Information already disclosed and/or to
be disclosed to it by a Disclosing Party, and each Recipient
Party 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.
(ii) Except as otherwise required by law, each
Recipient Party shall not use any such information, except for
the express purpose of utilizing it in connection with the
operation of the Facility. Except as otherwise required by law,
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Doc. #361753v.3
each Recipient Party shall (A) not directly or indirectly
disclose or discuss any such information with any person or
entity, other than employees, agents and subcontractors of the
Recipient Party who are directly concerned with the development,
construction and operation of the Facility, and (B) take all
steps it would normally take to protect its own confidential
information to ensure that the Confidential Information of the
Disclosing Party received by it shall be maintained in
confidence and not disclosed or used as provided herein.
Notwithstanding the foregoing, each Recipient Party shall be
liable to the Disclosing Party for any breaches or violations of
this Agreement by any director, officer, employee, subcontractor
or agent of the Recipient Party.
(iii)"Confidential Information" means to the
extent permitted by law any and all information disclosed
(orally, in writing, by inspection or otherwise) to a Recipient
Party by a Disclosing Party pursuant to this Agreement and any
information developed by a Recipient Party and based upon the
information disclosed to the Recipient Party pursuant to this
Agreement. Such information includes, but is not limited to,
plans, proposals, and lists of furniture, fixtures and
equipment. The restrictions upon confidentiality and use of
Confidential Information set forth in this Section 2.5 do not
apply to information which a Recipient Party can demonstrate was
publicly available or lawfully in its possession at the time of
its disclosure to the Recipient Party by the Disclosing Party;
however, Confidential Information shall not be deemed in a
Recipient Party's possession or publicly known simply because it
is embraced by more general information in a Recipient Party's
possession.
(iv) With respect to any information or material
which is protected by copyright of a Disclosing Party, no part
of such materials may be reproduced, stored in a data base and
retrieval system or transmitted in any form or by any means -
graphic, electronic, photocopying, recording, mechanical or
otherwise - without the prior written permission of the
Disclosing Party.
(b) Specific Performance. Each Recipient Party
agrees that the provisions of this Section 2.5 are reasonable
and necessary to protect the interests of the Disclosing Party
and that the Disclosing Party's remedies of law for a breach of
any of the provisions of this Section 2.5 shall be inadequate
and that, in connection with any such breach, the Disclosing
Party shall be entitled, in addition to any other remedies
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DoC. #361753v.3
(whether at law or in equity), to temporary and permanent
injunctive relief in accordance with applicable law.
Notwithstanding the foregoing, if a court of competent
jurisdiction shall determine any of the provisions of this
Section 2.5 to be unreasonable, each Recipient Party agrees to a
reaffirmation of such provisions by such court to any limits
which such court finds to be reasonable, and each Recipient
Party shall not assert that such provision shall be eliminated
in their entirety by such court.
2.6
Scheduling and Booking of Events.
(a) The goals and objectives of the City concerning
the management and operation of the Facility are as follows (the
"City's Goals"); (i) to hold the line on, or reduce, the level
of property tax support now provided to the Facility by
maintaining or reducing the level of Net Operating Loss, (ii) to
maximize the utilization of the Facility among all segments of
the local and regional population, and (iii) to maximize the net
revenue generated by or for the City from the operation of
Facility, within the requirements of the Booking Policy (as
defined below) .
(b) SMG shall develop a Booking Policy for the
Facility (the "Booking Policy") and shall deliver the same to
the City within ninety (90) days after the execution and
delivery of this Agreement, for the City's review and approval
(which approval shall not be unreasonably withheld or delayed).
The parties understand that the Booking Policy shall be
consistent with (i) the booking policies of similarly situated
facilities and (ii) the City's Goals. Notwithstanding anything
to the contrary contained herein, the parties acknowledge that
the Facility shall not compete for the same type of events that
can be held at the Grand River Center in Dubuque, Iowa, unless
the event comes through the Grand River Center. Those events
include, but are not limited to, conferences/conventions,
dinners/banquets, meetings, receptions, and flat floor events.
3.
Term and Renewal.
3.1
Management Term and Renewal Term.
The Management Term of this Agreement shall commence
on July 1, 2004 and end at midnight on June 30, 2009, unless
earlier terminated pursuant to the provisions of this Agreement.
The City Council may, in its sole discretion, extend the term
hereof on the same terms and conditions for an additional five-
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DOC. #361753v.3
year period commencing July 1, 2009 and ending at midnight on
June 30, 2014 by giving written notice not less than one
hundred eighty (180) days prior to the date of expiration of the
Management Term to SMG.
3.2
New Contract.
If (i) the City intends, upon termination of the
Management or Renewal Term to continue to provide management at
the Facility through a private provider and (ii) this Agreement
has not been terminated upon a default by SMG, then the City
shall during the final year of the Management Term, unless the
City exercises its option to renew under Section 3.1 or Renewal
Term, as the case may be, negotiate and discuss in good faith a
new contract or arrangement with SMG for the provision of such
services following the completion of such term. The obligation
to negotiate with SMG is not intended to guarantee any contract
rights for a future contract with SMG or any specific terms of a
new contract.
4.
SMG's Compensation.
4.1
Fixed Fee.
As base compensation to SMG for providing the services
herein specified during the Management Term and any Renewal
Term, the City shall pay SMG during the Management Term and the
Renewal Term, if any, an annual fixed fee of $75,000, which
amount shall be adjusted upward on the first day of each Fiscal
Year, other than the first Fiscal Year ending June 30, 2005,
during the term hereof by the percentage change in the Consumer
Price Index -- All Urban Consumers (CPI-U) -- U.S. City Average
-- All Items, during the one year period ending in May
immediately preceding such Fiscal Year, as published by the
Bureau of Labor Statistics of the U.S. Department of Labor, or
of any revised or successor index hereafter published by the
Bureau of Labor Statistics or other agency of the United States
Government succeeding to its functions. The foregoing annual
fixed compensation shall be payable in equal monthly
installments due on or before the last day of each month during
such Fiscal Year, and SMG shall be entitled to draw such amounts
from the account described in Section 5.7.
4.2
Incentive Fee.
(a) Amount. SMG shall be entitled to an annual
incentive fee with respect to each Fiscal Year during the
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Doc. #361753v.3
Management Term or Renewal Term which shall be equal to the
amount calculated in accordance with (i) below; provided,
however, that the fixed fee under Section 4.1 above and the
incentive fee for any Fiscal Year shall not exceed on an
aggregate basis the sum of $250,000, which amount shall be
adjusted upward on the first day of each Fiscal Year, other than
the first Fiscal Year ending June 30, 2005, in the same manner
as provided in Section 4.1 above.
(i) Subject to the immediately preceding
proviso, the annual incentive fee shall be an amount calculated
with respect to each Fiscal Year equal to fifty percent (50%) of
the amount by which the actual Net Operating Loss is less than
the Net Operating Loss Benchmark. The "Net Operating Loss
Benchmark" has been agreed by the parties to be an amount which
is equal to the average of the Net Operating Loss for each of
the Fiscal Years ending June 30, 2002, 2003 and 2004. The
parties acknowledge that such losses for Fiscal Years 2002 and
2003 were, respectively, $679,133 and $705,858. By August 15,
2004, the City shall calculate the Net Operating Loss for the
Fiscal Year ending June 30, 2004 and the parties shall promptly
thereafter calculate the Net Operating Loss Benchmark as
provided above. Such amount shall be adjusted upward on the
first day of each Fiscal Year, other than the first Fiscal Year
ending June 30, 2005, in the same manner as provided in Section
4.1 above. Additionally, the City acknowledges that certain
events outside of SMG's reasonable control may occur (such as,
the partial destruction of the Facility or material increases in
utility service charges at the Facility) which may affect SMG's
ability to generate savings for the City and to reduce the Net
Operating Loss. In such event, the parties shall meet to
discuss in good faith any adjustment to the Net Operating Loss
Benchmark to reflect the economic impact of such event on the
Facility.
(b) Payment. The incentive fee determined pursuant
to Section 4.2(a) above shall be payable to SMG within 30 days
after the City's receipt of an invoice from SMG accompanied by
an annual statement certified by one of its officers setting
forth the Operating Revenues and Operating Expenses for the
previous Fiscal Year and showing the calculation of the
incentive fee payable with respect to such Fiscal Year. SMG
shall thereupon be entitled to deduct the amount of such fee
from the account described in Section 5.7 below, provided that
to the extent that SMG projects that such a deduction would
leave insufficient funds in such account to cover Operating
Expenses for the remainder of the then-current fiscal quarter,
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SMG shall be entitled not to deduct all or a portion of such fee
from such account, and, upon notice thereof from SMG, the City
shall promptly pay SMG the amount of the fee that has not been
deducted from such account. Promptly following the availability
of the audited annual financial statements described in Section
6.1 hereof for a Fiscal Year, SMG shall recalculate the
incentive fee payable for that Fiscal Year; in the event that
the amount of the incentive fee which was paid based on SMG's
invoice differs from such recalculated amount, SMG shall
promptly remit to the City any excess amount which was paid, or
the City shall promptly pay (or SMG shall be entitled to deduct
from any account specified in Section 5.7) the shortfall, as the
case may be.
5.
Funding; Budgets; Bank Accounts.
5.1
Operating Funds.
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 City shall make
available to SMG all funds necessary to pay all Operating
Expenses incurred or accrued in such Fiscal Year. To the extent
that Operating Revenues during a calendar quarter period are
insufficient, or expected to be insufficient, to cover Operating
Expenses plus, with respect to the first quarter of a Fiscal
Year, the amount of the projected incentive fee payable pursuant
to Section 4.2(b) for the prior Fiscal Year ("Cash Flow
Shortfall") for such period, the City shall advance funds to SMG
as follows. Thirty (30) days prior to the beginning of each
calendar quarter during the Management Term and any Renewal
Term, SMG shall submit to the City an invoice for the projected
Cash Flow Shortfall for such quarter and the City shall transfer
such funds to SMG within five (5) business days after the start
of such calendar quarter. Such funds shall be deposited by SMG
in the operating or payroll account(s) established pursuant to
Section 5.7 and used to pay Operating Expenses. For sake of
clarity, the costs of the City employees at the Facility who
remain on the City payroll during the applicable Employment
Periods are not an Operating Expense for purposes of determining
the Cash Flow Shortfall.
5.2
Non-Funding.
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Doc. #361753v.3
(a) The City shall have no obligation to provide
funds for the payment of Operating Expenses incurred or
committed for after the date SMG receives written notice (an
"Appropriation Deficiency Notice") of the fact that insufficient
funds or no funds have been appropriated for the Facility.
(b) If the Appropriation Deficiency Notice is of
insufficient funds, the City 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 City shall pay all
Operating Expenses incurred or committed for prior to the date
SMG receives the Appropriation Deficiency Notice. Any failure
by the City to provide funds (beyond the aggregate level of
appropriated funds) for the payment of Operating Expenses
incurred or committed for after SMG receives an Appropriations
Deficiency Notice shall not be a breach of or default under this
Agreement by the City. Any failure by SMG to perform its
obligations under this Agreement shall not be a breach of or
default under this Agreement if such breach or default results
from the City's failure to appropriate sufficient funds for the
management, operation and promotion of the Facility.
(c) If the City appropriates funds at (or reduces
appropriated funds to) a level that, in SMG's judgment, renders
the management of the Facility not feasible, SMG may, at its
option, either (i) continue management of the Facility at a
reduced level consistent with anticipated Operating Revenues and
available funding or (ii) terminate this Agreement pursuant to
Section 12.2 (with the effect set forth in Section 12.3).
Following such termination, SMG shall have the right to resume
management of the Facility at such time as the City shall first
restore appropriated funds to reasonable levels, but only if the
City restores such funds during the remainder of the Management
Term or the Renewal Term, if applicable. In such event, SMG
shall have the right to resume management of the Facility for
the period of time that was remaining under the Management Term
or the Renewal Term, if applicable, at the time SMG exercised is
rights under clause (ii) above.
5.3
Annual Budget; Cash Flow Budget.
(a) As part of the annual plan described in Section
6.2 herein, on or before April 1 of each year (beginning
April 1, 2005), SMG shall prepare an annual operating budget for
the next Fiscal Year to meet the scope of services and
objectives under this Agreement. Such budget shall contain
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Doc. #361753v.3
appropriate line items for revenues and expenses and the
projected net operating deficit or surplus.
(b) SMG shall prepare and submit to the Civic Center
Commission, the City Manager and the City Council by April 1 of
each year during the term hereof (beginning April 1, 2005) an
annual cash flow budget for the succeeding Fiscal Year.
Additionally, SMG shall submit with such annual budgets its
recommendations for fees, rates and rate schedules for users of
the Facility who are booked in the upcoming Fiscal Year.
(c) The annual budgets referred to in subparagraphs
(a) and (b) above, as well as the proposed user fees and rates,
shall be reviewed and are subject to review by the Civic Center
Commission and the City Manager and approval by the City
Council. By June 1 of each year during the term of this
Agreement, beginning June 1, 2005, the City Manager shall notify
SMG of any changes to the annual operating budget, the cash flow
funding budget and the user fees and rate schedule for the
succeeding Fiscal Year proposed by SMG and with such changes, if
any, as are made by the City prior to June 1, such budgets shall
be the Approved Budgets for the following Fiscal Year and such
fee/rate schedules shall be the fee/rate schedule for the
following Fiscal Year, provided that if the annual operating
budget, the annual cash flow budget or the fee/rate schedule as
proposed by SMG are modified by the City in a manner which, in
SMG's judgment, could materially interfere, impede or impair the
ability of SMG to manage, operate or promote the Facility, SMG
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 that if the approved annual operating budget,
annual cash flow budget or the fee/rate schedule departs from
the budgets or schedule proposed by SMG, SMG shall not be
construed to have breached its obligations under this Agreement
if the alleged breach has been caused by the limitations in the
Fiscal Year's budgets.
5.4
Budget Modifications Initiated by SMG.
SMG may submit to the City Council 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 City Council of such supplemental or revised
budget, the Approved Budgets for such Fiscal Year shall be
deemed amended to incorporate such supplemental or revised
budget. The Approved Budgets may only be amended as set forth
in Section 5.5 below or in the two preceding sentences except
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DOC. #361753v.3
that SMG shall have the right to amend the Approved Budgets as
may be necessary or appropriate as the result of the scheduling
by SMG of additional events or activities at the Facility (and
the incurrence of additional Operating Expenses arising from the
scheduling of additional events or activities at the Facility)
as long as prior to the scheduling of such events or activities,
SMG had a 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 events or
activities.
Budget Modifications Initiated by the City.
5.5
In the event that it appears reasonably likely, in any
year during the term hereof, that the actual Net Operating Loss
for such Fiscal Year shall be larger than projected in the
annual operating budget for such Fiscal Year, the City Manager
may request from SMG a plan for reduction of Operating Expenses
to a level consistent with the budgeted Net Operating Loss
amount. SMG shall forthwith comply with any such expense
reduction requested by the City Manager and the approved budgets
for such Fiscal Year shall be modified accordingly, provided
that if the annual operating budget or annual cash flow budget
is modified in a manner which, in SMG's judgment, could
materially interfere, impede or impair the ability of SMG to
manage, operate or promote the Facility, SMG 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 that
SMG shall not be construed to have breached its obligations
under this Agreement if such alleged breach has been caused by
the limitations in the Fiscal Year's budgets.
5.6
Marketing Fund.
SMG shall establish a Thirty Thousand Dollar ($30,000)
marketing fund, which shall be used by SMG to attract new events
to the Facility.
5.7
Receipts and Disbursements.
SMG shall establish and maintain in one or more
depositories designated by the City's Treasurer one or more
operating, payroll and other bank accounts for the promotion,
operation and management of the Facility, in the name of the
City, with SMG as agent and with signature authority in such
employees of SMG as SMG shall determine. All revenues collected
by SMG from the operation of the Facility shall be deposited
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Doc. #361753v.3
into such accounts and Operating Expenses (other than Operating
Expenses to be paid from an account described in Section 5.8)
shall be paid by SMG as agent for the City from such accounts.
All revenues collected by SMG arising from operation of the
Facility, including revenues from box office sales, facility or
equipment rentals, utility rental agreements, food and beverage
concessions, or any other source, are the sole property of the
City, held in trust by SMG for the City for application as
provided herein. Any amounts remaining in such accounts upon
termination of this Agreement for any reason, after payment of
all outstanding Operating Expenses, shall be promptly paid by
SMG to the City.
5.8
Ticket Sales Revenues.
SMG shall hold in a separate interest-bearing account
in a banking institution depository in Dubuque, Iowa 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 City and SMG, 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 may be required to be paid
contemporaneously with the event. Following the satisfactory
completion of the events, SMG shall make a deposit into the
operating account(s) established pursuant to Section 5.7 above
of the amount in such account and shall pay from the operating
account Event Expenses and provide the City with a full event
settlement report. Interest which accrues on amounts deposited
in the operating account(s) referred to in Section 5.7 and the
ticket account referred to above shall be considered Operating
Revenues. Bank service charges, if any, on such account(s)
shall be considered Operating Expenses.
5.9
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 City, except as otherwise
provided in Section 5.12, and shall not be considered Operating
Expenses. The annual plan submitted pursuant to Section 6.2
shall include SMG's recommendation for Capital Improvements and
Capital Equipment purchases to be accomplished during the year
and shall be accompanied by an estimate of the cost of all such
items and projects and a request that the City budget funds
therefor. The City shall retain the discretion to determine
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Doc. #361753v.3
whether and to what level to fund Capital Improvements and
Capital Equipment purchases to the Facility, except as otherwise
provided in Section 5.12.
5.10
Limitation of SMG Liability.
Notwithstanding any provision herein to the contrary
and except for SMG's express indemnification undertakings in
Section 8.1 and its express reimbursement undertakings in
Section 6.1(b), SMG shall have no obligation to fund any cost,
expense or liability with respect to the operation, management
or promotion of the Facility.
5.11
Funds for Emergency Repairs.
SMG shall have the right to act, with the prior
consent of the City Manager, in situations which SMG 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,
however, SMG shall have no obligation under any circumstance to
spend or commit funds other than funds then available in such
accounts for any such purpose. Immediately following such
action, SMG shall inform the City Manager of the situation and
the action(s) taken, and the City shall pay into such account(s)
the amount of funds, if any, spent or committed by SMG pursuant
to this Section 5.11 in excess of budgeted amounts.
5.12
SMG Capital Contribution.
(a) SMG shall provide to the Facility the aggregate
sum of Seventy-Five Thousand Dollars ($75,000) for Capital
Improvements and Capital Equipment purchases relating to
mutually agreed upon revenue generating projects for the
Facility. Such contribution shall be made at the commencement
of such project(s). If appropriate (i.e., such improvements and
purchases are for several different items), SMG shall work with
the City to prepare, and mutually agree upon, a budget of the
Capital Improvements and Capital Equipment purchases to be
funded with such contribution, along with the scope of work to
be performed thereunder, the supervision of tasks and the
estimated time frames for the projects listed in such budget.
Such budget shall take into account the Capital Improvements and
Capital Equipment purchases to be funded by the City pursuant to
Section 5.9.
@ 1995-2003. SMG. All rights reserved
19
DOC. #361753v.3
(b) Amortization of the SMG Capital Contribution.
The amount of the SMG Capital Contribution shall be amortized
over a period of sixty (60) months during the Management Term
and the Renewal Term, if any, on a straight-line basis. In the
event of the expiration or termination of this Agreement for any
reason, the City shall pay, or cause any successor management
company to pay, to SMG unconditionally and without set-off the
unamortized amount of the SMG Capital Contribution existing as
of such expiration or termination. The payment of any such
unamortized amounts shall be made to SMG no later than the
effective date of such expiration or termination.
6.
Records, Audits and Reports.
6.1
Records and Audits.
(a) SMG shall keep full and accurate accounting
records relating to its activities at the Facility in accordance
with generally accepted United States accounting principles.
SMG shall maintain a system of bookkeeping adequate for its
operations hereunder. SMG shall give the City's authorized
representatives access to such books and records maintained at
the Facility during reasonable business hours and upon
reasonable advance notice. SMG shall keep and preserve for at
least three (3) years following each Fiscal Year all sales
slips, rental agreements, purchase order, sales books, credit
card invoices, bank books or duplicate deposit slips, and other
evidence of Operating Revenues and Operating Expenses for such
period. In addition, on or before November 1 following each
Fiscal Year for which SMG is managing the Facility hereunder
(beginning November 1, 2005), SMG shall furnish to the City 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 and accompanied by an independent
auditor's report of a nationally recognized, independent
certified public accountant. The audit shall contain an opinion
expressed by the independent auditor of the accuracy of
financial records kept by SMG and of amounts due to the City.
The audit shall also provide a certification of Operating
Revenues and Operating Expenses as defined in this Agreement for
such Fiscal Year. The audit shall be conducted by a reputable
firm selected by the City and the costs of such audit shall be
paid by the City.
(b) The City shall have the right at any time, and
from time to time, to cause nationally recognized independent
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20
Doc. #361753v.3
auditors to audit all of the books of SMG 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 City 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 statements
prepared by SMG and audited as specified in the foregoing
subparagraph (a) are understated (in the case of Operating
Expenses) or overstated (in the case of Operating Revenues), in
either case by more than five percent (5%), SMG shall pay to the
City the reasonable cost of such audit and shall promptly refund
to the City any portion of the incentive fee paid for such
Fiscal Year which is attributable to the overstatement or
understatement, as the case may be. The City's right to have
such an audit made with respect to any Fiscal Year and SMG's
obligation to retain the above records shall expire three (3)
years after SMG's statement for such Fiscal Year has been
delivered to the City.
6.2
Annual Plan.
(a) SMG shall provide to the City on or before
April 1 of each 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 SMG's anticipated operations for such Fiscal Year,
including planned operating maintenance activities by SMG, a
five-year plan for requested Capital Improvements and Capital
Equipment purchases and an anticipated budget therefor,
anticipated 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 Civic Center Commission, the City Manager
and the City Council. Following review and revision and final
approval by the City Council, SMG shall have thirty (30) days to
incorporate the City Council's revisions into its plan. Upon
approval by the City Council, such annual plan shall constitute
the operating program for SMG for the following Fiscal Year.
6.3
Monthly Reports.
By the twenty-fifth day of each month beginning on the
25th day of August, 2004, SMG shall provide to the City a written
monthly report in a form approved by the City and similar to
that used in other SMG-managed facilities setting out the
Facility's anticipated activities and financial condition for
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Doc. #361753v.3
the upcoming month and reporting on the prior month's activities
and finances.
7.
Employees.
7.1
SMG Employees.
(a) Subject to Section 7.2, SMG shall select, train
and employ at the Facility such number of employees as SMG deems
necessary or appropriate to satisfy its responsibilities
hereunder; SMG shall use its best efforts to recruit employees
who shall be proficient, productive, and courteous to patrons,
and, subject to Section 7.2, SMG shall have authority to hire,
terminate and discipline any and all personnel working at the
Facility.
(b) Subject to Section 7.2, SMG shall assign to the
Facility a competent, full-time general manager. From time to
time the general manager may provide assistance in connection
with the consulting and/or management services provided by SMG
or any of its Affiliates at other facilities managed, owned or
leased by SMG or any of its Affiliates, provided that (i) such
assistance does not affect in any material respect the
responsibilities and duties of the general manager to the
Facility and (ii) the cost of the salary and benefits of the
general manager for the time spent in connection with providing
such assistance shall be reimbursed by SMG to the operating
account of the Facility. Prior to SMG's appointment of such
general manager, SMG shall consult with the City Manager with
respect to the qualifications of the general manager proposed by
SMG.
(c) SMG employees at the Facility shall not for any
purpose be considered to be employees of the City, and SMG shall
be solely responsible for their supervision and daily direction
and control and for setting, and paying as an Operating Expense,
their compensation and any employee benefits, and all costs
related to their employment shall be an Operating Expense.
7.2
City Employees.
(a) As of the date hereof, the parties have agreed to
classify the City's employees at the Facility into the following
groups for purposes of the transitioning such employees to SMG
as provided herein; (i) the General Manager and all part-time
employees (which part-time employees total approximately 85
individuals as of the date hereof) (the "Group 1 Employees"),
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DoC. #361753v.3
(ii) the Events Coordinator, Technical Director, Concessions
Manager and Building Supervisor (the "Group 2 Employees"), and
(iii) all other City employees at the Facility (the "Group 3
Employees"), which group consists of two full time utility
workers who are bargaining unit employees ("Bargaining Unit
Employees"). During the applicable Employment Period, all such
City employees who remain at the Facility (collectively, the
"Remaining City Employees") shall be entitled to continue
working at the Facility. During the applicable Employment
Period, the Remaining City Employees shall retain their status
and benefits as City employees. During such period and with
respect to the Remaining City Employees, SMG (which shall
supervise and direct the activities of the Remaining City
Employees) shall comply with applicable collective bargaining
contracts, personnel rules and procedures regarding salary
changes, disciplinary action and discharge of which SMG has
notice from the City.
Notwithstanding the foregoing, any City employee at
the Facility may transfer to SMG prior to the end of the
applicable Employment Period, if SMG chooses to offer such
employee employment at that time, subject in the case of the
Bargaining Unit Employees to applicable terms and conditions
under the applicable collective bargaining agreements.
(b) At or prior to the end of the applicable
Employment Period, SMG shall have the right, in its sole
discretion, to offer employment to any Remaining City Employee,
subject in the case of the Bargaining Unit Employees to
applicable terms and conditions under the applicable collective
bargaining agreement(s). Any such offer shall be on such terms
as SMG, in its sole discretion, shall determine, subject in the
case of the Bargaining Unit Employees to applicable terms and
conditions under the applicable collective bargaining
agreements. Any Remaining City Employee who chooses to accept
any such offer of employment by SMG shall thereupon cease to be
an employee of the City, shall become an employee of SMG upon
such terms and conditions as determined by SMG, and shall no
longer be deemed a Remaining City Employee for purposes of
subparagraph (a) above.
(c) At the end of the applicable Employment Period,
the City shall cause all Remaining City Employees in the
applicable group who have not been offered employment by SMG or
who have not accepted an offer of employment by SMG to cease
working at the Facility.
@ 1995-2003. SMG. All rights reserved
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Doc. #361753v.3
(d) If SMG elects or is required in connection with
the performance of its services hereunder to retain any
Bargaining Unit Employees or to hire employees who are covered
by any collective bargaining agreements, the parties acknowledge
that SMG may, as a result thereof, be required to make
contributions to multi-employer plans (as that term is defined
in Section 4001(a) (3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), on behalf of or for the
benefit of such employees during the term of this Agreement,
which contribution obligation may expose SMG to withdrawal
liability for a share of any unfunded vested benefits under such
plans. Accordingly, the City shall indemnify, defend and hold
harmless SMG from and against any Losses (as defined in Section
8.1(a) below) in respect of any withdrawal liability for
unfunded vested benefits that SMG may have under any such multi-
employer plans in connection with the hiring and firing of such
employees by SMG during the term of this Agreement or the
termination of this Agreement. The obligation of the City under
this Section 7.2(d) shall survive the termination of this
Agreement. In addition, if requested by the City, SMG shall
during the Employment Period pertaining to the Union Employees
use its best efforts to obtain information from such multi-
employer plans regarding the withdrawal liability status, if
any, of such plans and the applicability of any statutory
exemptions under ERISA with respect to withdrawal liability and
shall advise the City of the status of any such information
which it obtains from such plans.
7.3
No Solicitation or Employment by City.
During the period commencing on the date hereof and
ending one (I) year after the termination of this Agreement,
except with SMG's prior written consent, the City shall not, for
any reason, solicit for employment, or hire, any of the senior
management personnel employed by SMG at the Facility, including,
without limitation, the general manager, director-level
employees and department heads. In addition to any other
remedies which SMG may have, specific performance in the form of
injunctive relief shall be available for the enforcement of this
provision.
7.4
Termination.
Upon any termination of this Agreement, the City shall
require that any successor management contractor offer
employment for six months following such termination, subject
to dismissal for cause, in similar positions at the Facility and
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Doc. #361753v.3
with similar compensation and benefits, to all those employees
of SMG that (i) are employed at the Facility at the time of such
termination of this Agreement, and (ii) SMG has not notified the
City that SMG wishes to continue to employ elsewhere. This
Section shall not apply to senior management personnel, as
defined in Section 7.3 above.
8.
Indemnification and Insurance.
8.1
Indemnification.
(a) SMG shall indemnify, defend and hold harmless the
City, its officers, agents and employees from and against any
and all losses, liabilities, claims, damages and expenses
(including reasonable attorneys fees) (collectively, "Losses")
arising from any negligent act or omission by SMG, its officers,
agents or employees, or any material default or breach by SMG of
its obligations specified herein; 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
City of its obligations under Section 8.1 (b) below, (ii) are
caused by or arise out of the services provided by the
architects, engineers and other agents (other than SMG) retained
by the City in connection with Capital Improvements or Capital
Equipment purchases at the Facility, or (iii) relate to or arise
from occupational related diseases of any City employees who
provide any services at the Facility (whether as an employee of
the City or as a part-time employee of SMG). Notwithstanding
the foregoing, to the extent that such occupational disease
described in clause (iii) above is demonstrated to be directly
related to the work of any such City employee at the Facility,
then the provisions of clause (iii) shall not apply to the
extent thereof.
(b) The City shall indemnify, defend and hold
harmless SMG, its partners, officers, agents and employees from
and against any and all Losses arising from (i) any material
default or breach by the City of its obligations specified
herein, (ii) the fact that at any time prior to, as of, or after
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 (as defined in
Section 11.2 hereof), including, but limited to, 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 may be amended in the future by statute
or judicial interpretation (collectively, the "ADA"), (iii) the
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Doc. #361753v.3
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 the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act),
(iv) any structural defect or unsound operating condition 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, (v) any obligation or liability under or in respect
of any contract, agreement or other instrument executed by SMG
as agent for the City as authorized herein, (vi) any obligation
or liability for physical damage or other Loss to any real
property and personal property assets located at the Facility or
intended to be incorporated therein, whether such assets are
insured by the City or whether the City decides not to insure
for such damage and Losses (including without limitation damages
or Losses falling within any policy deductible), (vii) any non-
compliance with any Pre-Existing Agreement on or prior to the
commencement of the Management Term, or (viii) any act or
omission carried out by SMG at or pursuant to the direction or
instruction of the City, its agents or employees (including
without limitation the City Manager); provided, however, that
the foregoing indemnification under clauses (i) and (ii) above
shall not extend to Losses to the extent such Losses arise from
any default or breach by SMG 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 except for indemnification based upon Section
8.1(b) (ii), (iii), (iv), (v), (vi), (vii), or (viii) above, 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 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 City, and (ii) the policies of any
independent contractors retained by the City or hired by SMG
(such as, emergency medical technicians who are not employed by
SMG), shall preclude subrogation claims against SMG, its
partners, the City and their respective officers, directors,
employees and agents.
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Doc. #361753v.3
(e) The foregoing indemnification rights shall be the
exclusive remedies of each party hereto (other than any right to
terminate this Agreement pursuant to Section 12) arising from
any breach of, default under or performance pursuant to this
Agreement.
8.2
Liability Insurance.
(a) SMG shall at all times during the Management
Term, and the Renewal Term, if any, maintain insurance as
required by the City's standard Insurance Schedule for
Professional Services as such schedule may from time to time be
amended not more frequently than once a year by the City. A
copy of the City's current schedule is attached hereto as
Exhibit "B."
(b) SMG shall also maintain Comprehensive Automotive
Bodily Injury and Property Damage Insurance for business use
covering all vehicles operated by SMG officers, agents and
employees in connection with the Facility, whether owned by SMG,
the City, 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) All of the insurance policies described in this
Section 8 shall contain a provision covering the parties'
indemnification liabilities to each other.
(d) 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.
8.3
Fidelity Bond and Surety and Performance Bond.
(a) SMG shall provide, during the term of this
Agreement, to the City a Fidelity Bond covering all of SMG's
personnel under this Agreement in the amount of One Million
Dollars ($1,000,000.00) for each loss, to reimburse the City for
losses experienced due to the dishonest acts of SMG's employees.
(b) During the term of this Agreement, SMG shall also
provide to the City a surety and performance bond in the amount
of One Hundred Thousand Dollars ($100,000) to protect the City
against loss due to the inability or refusal of SMG to perform
under this Agreement.
8.4
Property Insurance.
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Doc. #361753v.3
(a) The City shall, subject to Section 5.2, maintain
its current property insurance covering the premises of the
Facility and its personal property located thereat. The City
shall, with respect to the Losses covered by such property and
hazard insurance and business interruption and extra expenses
insurance, waive any subrogation rights that it may have against
SMG, its partners and their respective officers, employees and
agents, whether or not the City self-insures for the Losses
covered by such insurance. Nothing in this Agreement is
intended to require SMG to maintain property and hazard
insurance covering the premises at the Facility, the City's
personal property located thereat or business interruption
insurance covering the interruption of operations by or for
whatever cause at the Facility.
(i) The original or a certified copy of the
above policy, or policies, referred to in Section 8.4(a) (with
all required policy endorsements), plus certificates evidencing
the existence thereof, all in such form as SMG may reasonably
require, shall be delivered to SMG prior to the commencement of
this Agreement. Notwithstanding the provisions of this Section
8.4(a), 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 shall not be canceled or materially
changed or altered without first giving thirty (30) days'
written notice thereof to "SMG, Risk Management Director, 701
Market Street, 4th Floor, Philadelphia, PA, 19106, sent by
certified mail, return receipt requested."
(ii) A renewal binder of coverage (or
satisfactory evidence of such renewal) shall be delivered to SMG
at least twenty (20) days before a policy's expiration date
except for any policy expiring on the termination date of this
Agreement or thereafter.
8.5
Certain Other Insurance.
If any of the Pre-Existing Agreements consist of
agreements with independent contractors to provide services in
respect of the Facility, the City shall use its best efforts to
cause such contractors to name SMG 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 SMG promptly after request therefor a certified copy
of such policy and a certificate evidencing the existence
@ 1995-2003. SMG. All rights reserved
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Doc. #361753v.3
thereof. In addition, if SMG enters into any agreements during
the term of this Agreement with any independent contractors for
the provision of services hereunder, SMG shall have the right to
require such contractors to name SMG as an additional insured
under any insurance required by SMG thereunder and to deliver to
SMG 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 Section 8.4 (a) (i) and (ii).
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 City. Ownership of and title to
all intellectual property rights of whatsoever value, held in
the City's name shall remain in the name of the City. The
ownership of consumable assets (such as office supplies and
cleaning materials) purchased with Operating Revenues or City
funds shall remain with the City, but such assets may be
utilized and consumed by SMG in the performance of services
under this Agreement. The ownership of data processing programs
and software owned by the City shall remain with the City, and
the ownership of data processing programs and Software owned by
SMG shall remain with SMG. SMG shall not take or use, for its
own purposes, customer or exhibitor lists or similar materials
developed by the City for the use of the Facility, unless
written consent is granted by the City Manager. Ownership of
equipment, furnishings, materials, or fixtures not considered to
be real property and other personal property purchased by SMG
with City funds for use at and for the Facility shall vest in
the City automatically and immediately upon purchase or
acquisition. The assets of the City as described herein shall
not be pledged, liened, encumbered or otherwise alienated or
assigned other than in the ordinary course of business of the
Facility without the prior approval of the City.
9.2
City Obligations.
Except as herein otherwise set forth, throughout the
term of this Agreement, the City shall maintain full beneficial
use and ownership of the Facility and shall pay, keep, observe
and perform all payments, terms, covenants, conditions and
obligations under any bonds, debentures or other security
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DOC. #361753v.3
agreements or contracts relating to the Facility to which the
City may be bound.
10.
Assignment; Affiliates.
10.1
Assignment.
Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by either party hereto
without the prior written consent of the other party hereto.
For sake of clarity, the parties acknowledge that the foregoing
does not preclude the assignment by SMG of its rights to receive
its management and incentive fees hereunder to its lender(s) as
collateral security for SMG's obligations under any credit
facilities provided to it by such lender(s), provided that such
collateral assignment shall not in any event cover SMG's rights
to manage, promote or operate the Facility hereunder.
10.2
SMG Affiliates.
(a) Transactions with Affiliates. In connection with
its management responsibilities hereunder relating to the
purchase and/or procurement of equipment, materials, supplies,
inventories, and services for the Facility, SMG shall have the
right, but not the obligation, to purchase and/or procure from,
or otherwise transact business with, an Affiliate of SMG. In
the event SMG purchases and/or procures from, or otherwise
transacts business with, an Affiliate of SMG as contemplated by
the foregoing sentence, the prices charged and services rendered
shall be competitive with those obtainable from others rendering
comparable goods and/or services of like kind. To ensure
compliance in this respect, SMG agrees to obtain at least two
(2) other competitive bids from persons other than SMG's
Affiliates whenever SMG proposes to transact business with an
Affiliate for the provision of such goods or services hereunder.
In addition, SMG, as agent for the City, may license the use of
the Facility or any part thereof to itself in connection with
any event in the promotion of which SMG is involved, so long as
the license fee charged is on prevailing rates and terms or such
other rates and terms as the City Manager or the City Council
approves.
(b) Conflicts of Interest. The City acknowledges
that SMG manages other public assembly facilities which may,
from time to time, be in competition with the Facility. The
management of competing facilities shall not, in and of itself,
be deemed a conflict of interest or breach of SMG's duties
@ 1995-2003. SMG. All rights reserved
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DoC. #361753v.3
hereunder; provided, however, in all instances in which the
Facility is in competition with other public assembly facilities
managed by SMG for the solicitation of certain events, SMG shall
not involve its principal office (currently in Philadelphia,
Pennsylvania) on behalf of any such other facility in an attempt
to influence the decision-making process regarding the selection
of a site by such events.
11.
Laws and Permits.
Permits, Licenses, Taxes and Liens.
11.1
SMG shall use reasonable efforts to procure any
permits and licenses required for the business to be conducted
by it hereunder. The City shall cooperate with SMG in applying
for such permits and licenses. SMG shall deliver copies of all
such permits and licenses to the City Manager. SMG shall pay
promptly, out of the accounts specified in Section 5.7, all
taxes, excises, license fees and permit fees of whatever nature
arising from its operation, promotion and management of the
Facility. SMG 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 SMG's direction
and the City has supplied funds for the payment of charges
therefor in accordance'with this Agreement.
11.2
Governmental Compliance.
SMG, its officers, agents and employees shall comply
with all federal, state, local and municipal regulations,
ordinances, statutes, rules, laws and constitutional provisions
(collectively, "Laws") applicable to SMG's management of the
Facility hereunder, including without limitation Title III of
the ADA and the provision of such auxiliary aids or alternate
services as may be required by the ADA. Nothing in this Section
11.2 or elsewhere in this Agreement shall, however, require SMG
to undertake any of the foregoing compliance activity, nor shall
SMG have any liability under this Agreement therefor, if (a)
such activity requires any Capital Improvements or Capital
Equipment purchases, unless the City provides funds for such
Capital Improvements and Capital Equipment purchases pursuant to
Section 5.9 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
@ 1995-2003. SMG. All rights reserved
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Doc. #361753v.3
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, SMG 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; Affirmative Action.
In connection with the performance of work under this
Agreement, SMG shall not refuse to hire, discharge, refuse to
promote or demote, or to 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 thirty (30) 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 sixty
(60) 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
sixty (60) day period, the defaulting party shall not be
considered in default if it shall within such sixty (60) 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.
12.2
Termination Other than Upon Default.
(a) SMG shall have the right to terminate this
Agreement upon sixty (60) days written notice to the City (i)
under the circumstances described in Sections 5.2, 5.3 or 5.5
hereof, or (ii) if the City fails to make Capital Improvements
or Capital Equipment purchases at the Facility to the extent
that such omission, in SMG's judgment, materially interferes
@ 1995-2003. SMG. All rights reserved
32
Doc. #361753v.3
with, impedes or impairs the ability of SMG to manage the
Facility effectively.
(b) Either party shall have the right to terminate
this Agreement under the circumstances specified in Section
13.6 (d) .
12.3
Effect of Termination.
In the event this Agreement expires or is terminated,
(i) all Operating Expenses incurred or committed for prior to
the date of expiration or termination shall be paid using funds
on deposit in the account(s) described in Sections 5.7 and 5.8
and to the extent such funds are not sufficient, the City shall
pay all such Operating Expenses and shall indemnify and hold SMG
harmless therefrom, and (ii) the City shall promptly pay SMG all
fees earned to the date of expiration or termination (the fixed
and incentive fees described in Section 4 hereof being subject
to proration), provided that the City shall be entitled to
offset against such unpaid fees any damages (actual, not
consequential) directly incurred by the City in remedying any
default by SMG hereunder which resulted in such termination
(other than the fees or expenses of any replacement manager for
the Facility), and (iii) the City shall pay, or cause any
successor management company to pay, to SMG unconditionally and
without set-off the unamortized amount of the SMG Capital
Contribution existing as of such expiration or termination as
provided in Section 5.12 hereof. Upon the expiration of this
Agreement or a termination pursuant to Section 12.1 or 12.2, all
further obligations of the parties hereunder shall terminate
except for the obligations in this Section 12.3 and in Sections
7.2(d), 7.3, 7.4, 8.1 and 12.4; provided, however, that if such
termination is the result of a willful default, the
nondefaulting party exercising its right to terminate this
Agreement shall be entitled to recover damages for breach
arising from such willful default.
12.4
Surrender of Premises.
Upon termination of this Agreement (termination shall,
for all purposes in this Agreement, include termination pursuant
to the terms of this Section 12 and any expiration of the term
hereof), SMG 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 City in good
repair, reasonable wear and tear excepted, to the extent funds
were made available therefor by the City. All reports, records,
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Doc. #361753v.3
including financial records, and documents maintained by SMG at
the Facility relating to this Agreement other than materials
containing SMG's proprietary information shall be immediately
surrendered to the City by SMG upon termination.
13.
Miscellaneous.
13.1
Use of Facility at Direction of City.
(a) The City shall have the right to use the Facility
or any part thereof, upon reasonable advance notice and subject
to availability, for such purposes as meetings, seminars,
training classes or other City uses without the payment of any
rental or use fee, except that direct out-of-pocket expenses
incurred in connection with such uses (including without
limitation staff and food and beverage costs) shall be paid by
the City.
(b) Additionally, the Dubuque Community School
District shall have the right to use the Facility or any part
thereof, upon reasonable advance notice and subject to
availability, for non-ticketed events sponsored by the School
District without the payment of any rental or use fee, except
that qirect out-of-pocket expenses incurred in connection with
such uses (including without limitation staff and food and
beverage costs) shall be paid by the School District. As of the
date hereof, graduation ceremonies are the only events that fall
within such type of events. If the School District sponsors an
event where tickets are sold, the foregoing provisions do not
apply to such event.
(c) Except as otherwise provided in the Booking
Policy, the events described in subparagraphs (a) and (b) above
will not be booked if they will conflict with paying events
booked by SMG and shall in all instances be subordinate to
paying events in terms of priority of use of the Facility. The
parties have agreed that based upon past historical use by the
City and the School District, the Facility has foregone
approximately $11,000 in rental fees for such events in any
Fiscal Year. To the extent that in any Fiscal Year under this
Agreement the total amount of rental fees which otherwise would
have been chargeable for the events described in subparagraphs
(a) and (b) above exceeds the foregoing estimated number, the
amount of such excess rental fee shall be deemed to have been
paid to the Facility and shall be included in the Operating
Revenues for purposes of calculating SMG's incentive fees
pursuant to Section 4.2 above.
@ 1995-2003. SMG. All rights reserved
34
DOC. #361753v.3
13 .2
Dispute Resolution.
(a) The parties desire to cooperate with each other
in the management and operation of the Facility pursuant to the
terms hereof. In keeping with this cooperative spirit and
intent, any dispute arising hereunder shall first be referred to
the parties' respective agents or representatives prior to
either party initiating a legal suit, who shall endeavor in good
faith to resolve any such disputes within the limits of their
authority and within forty-five (45) days after the commencement
of such discussions. If and only if any dispute remains
unresolved after the parties have followed the dispute
resolution procedure set forth above, the matter shall be
resolved pursuant to Section 13.2(b) and (c) below.
(b) If any dispute between the parties has not been
resolved pursuant to Section 13.2(a) above, the parties shall
endeavor to settle the dispute by mediation under the then
current Center for Public Resources ("CPR") model procedure for
mediation of business disputes or, if such model procedure no
longer exists, some other mutually agreeable procedure. Within
ten (10) business days from the date that the parties cease
direct negotiations pursuant to Section 13.2(a) above, the City
shall select a neutral third party mediator, who shall be
subject to the reasonable approval of SMG. Each party shall
bear its own cost of mediation; provided, however, the cost
charged by any independent third party mediator shall be borne
equally by the parties.
(c) The parties agree that any mediation proceeding
(as well as any discussion pursuant to Section 13.2(a) above)
shall constitute settlement negotiations for purposes of the
federal and state rules of evidence and shall be treated as non-
discoverable, confidential and privileged communication by the
parties and the mediator. No stenographic, visual or audio
record shall 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 shall not be discoverable nor
admissible for any purposes in any litigation or other
proceeding involving the parties and shall not be disclosed to
any third party.
(d) The parties agree that this mediation procedure
shall be obligatory and participation therein legally binding
upon each of them. In the event that either party refuses to
@1995-2003. SMG. All rights reserved
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DoC. #361753v.3
adhere to the mediation procedure set forth in this Section
13.2, the other party may bring an action to seek enforcement of
such obligation in any court of competent jurisdiction.
(e) The parties' efforts to reach a settlement of any
dispute shall continue until the conclusion of the mediation
proceeding. The mediation proceeding shall 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 the 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 shall be
deemed to have commenced following the completion of the
selection of a mediator as provided in Section 13.2(b).
(f) If any dispute has not been resolved pursuant to
the foregoing, either party may terminate this Agreement as
provided in Section 12 hereof and each is free to file suit in a
court of competent jurisdiction to enforce its rights hereunder.
(g) 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 shall continue to participate in good
faith in the procedures specified in this Section 13.2.
(h) Any interim or appellate relief granted in such
Equitable Litigation shall remain in effect until the
alternative dispute resolution procedures described in this
Section 13.2 concerning the dispute that is the subject of such
Equitable Litigation result in a settlement agreement. Such
written settlement agreement shall be the final, binding
determination on the merits of such dispute, shall supercede and
nullify any decision in the Equitable Litigation, and shall
preclude any subsequent litigation on such merits,
notwithstanding any determination to the contrary in connection
with any Equitable Litigation granting or denying interim relief
or any appeal therefrom.
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Doc. #361753v.3
(i) All applicable statutes of limitation and
defenses based upon the passage of time shall be tolled while
the procedures specified in this Section 13.2 are pending. The
parties shall take such action, if any, required to effectuate
such tolling. Each party shall be required to perform its
obligations under this Agreement pending final resolution of any
dispute arising out of or relating to this Agreement, unless to
do so would be impossible or impracticable under the
circumstances.
13.3
No Partnership or Joint Venture.
Nothing herein contained is intended or shall be
construed in any way to create or establish the relationship of
partners or a joint venture between the City and SMG. None of
the officers, agents or employees of SMG shall be or be deemed
to be employees of the City for any purpose whatsoever.
13.4
Entire Agreement.
This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings with respect
thereto. No other agreements, representations, warranties or
other matters, whether oral or written, shall be deemed to bind
the parties hereto with respect to the subject matter hereof.
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 shall be liable or responsible to the
other party for any delay, damage, loss, failure, or inability
to perform caused by "Force Majeure" if notice is provided to
the other party within ten (10) days of date on which such party
gains actual knowledge of the event of "Force Majeure" that such
party is unable to perform. The term "Force Majeure" as used in
this Agreement means the following: an act of God, strike, war,
public rioting, lightning, fire, storm, flood, explosions,
inability to obtain materials, supplies, epidemics, landslides,
lightening storms, earthquakes, floods, storms, washouts, civil
disturbances, explosions, breakage or accident to machinery or
lines of equipment, temporary failure of equipment, freezing of
@ 1995-2003. SMG. All rights reserved
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Doc. #361753v.3
equipment, terrorist acts, and any other cause whether of the
kinds specifically enumerated above or otherwise which is not
reasonably 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 (it being acknowledged
that under no circumstances shall a failure to pay amounts due
and payable hereunder be excusable due to a Force Majeure).
(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 ~he supplying of any such
service or services or the provision of any component necessary
therefor shall be prohibited or rationed by any Law.
(c) Except as otherwise expressly provided in this
Agreement, no abatement, diminutio~ or reduction of the payments
payable to SMG shall be claimed by the City or charged against
SMG, nor shall SMG 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 priorities, rationing, or cc~tailment of labor or
materials, or by war or any matter or thing.
(d) In the event of damage to or destruction of the
Facility by reason of fire, storm Jr other casualty or
occurrence of any nature or any regulatory action or
requirements that, in either case, is expected to render the
Facility materially untenantable, notwithstanding the City's
reasonable efforts to remedy such situation, for a period
estimated by an Architect selected by the City at the request of
SMG of at least one hundred eighty (180) days from the happening
of the fire, other casualty or any other such event, either
party may terminate this Agreement upon written notice to the
other. In the event that the Facility becomes either wholly or
partially untenantable as a result of any of the foregoing,
appropriate adjustments to the Expense and Revenue Benchmarks
shall be made.
(e) SMG may suspend performance required under this
Agreement, without any further liability, in the event of any
act of God or other occurrence, which act or occurrence is of
such effect and duration as to effectively curtail the use of
the Facility so as effect a substantial reduction in the need
for the services provided by SMG for a period in excess of
ninety (90) days; provided, however, that for the purposes of
this subsection, SMG shall have the right to suspend performance
@ 1995-2003. SMG. All rights reserved
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Doc. #361753v.3
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 SMG" shall mean such a
reduction as shall make the provision of any services by SMG
economically impractical. No payments of the management fees
otherwise due and payable to SMG shall be made by the City
during the period of suspension. In lieu thereof, the City
Manager and SMG may agree to a reduced management fee payment
for the period of reduction in services required.
(f) In the event of a material increase in any
Operating Expense not reasonably within the control of either
party (including, by way of example and not by limitation, an
increase in the cost of insurance or utilities), the parties
shall mutually negotiate and agree upon in good faith an
adjustment to the Net Operating Loss Benchmarks to take into
account such increased cost.
13.7 Binding Upon Successors and Assigns; No Third-Party
Beneficiaries.
(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.
(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 such parties and their successors
and permitted assigns and for the benefit of no other person or
entity.
13.8
Notices.
Any notice, consent or other communication given
pursuant to this Agreement shall be in writing and shall be
effective either (a) when delivered personally to the party for
whom intended, (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
@ 1995-2003. SMG. All rights reserved
39
DoC. #361753v.3
followed by mailing of such notice by certified or registered
mail, return receipt requested, postage prepaid, in any case
addressed to such party as set forth below or as a party may
designate by written notice given to the other party in
accordance herewith.
To the City:
City Manager
City Hall
13th and Central Avenues
Dubuque, IA 52001
To SMG:
SMG
701 Market Street, 4th Floor
Philadelphia, PA 19106
Attention: President
Telecopy: (215) 592-6699
With a copy to:
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103
Attention: William R. Sasso, Esq. Or
Steven A. Scolari, Esq.
Telecopy: (215) 564-8120
13.9
Section Headings and Defined Terms.
The section headings contained herein are for
reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement. The terms defined
herein and in any agreement executed in connection herewith
include the plural as well as the singular and the singular as
well as the plural, and the use of masculine pronouns shall
include the feminine and neuter. Except as otherwise indicated,
all agreements defined herein refer to the same as from time to
time amended or supplemented or the terms thereof waived or
modified in accordance herewith and therewith.
13.10
Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original copy of
@ 1995-2003. SMG. All rights reserved
40
Doc. #361753v.3
this Agreement, and all of which, when taken together, shall be
deemed to constitute but one and the same agreement.
13.11
Severability.
The invalidity or unenforceability of any particular
provision, or part of any provision, of this Agreement shall not
affect the other provisions or parts hereof, and this Agreement
shall be construed in all respects as if such invalid or
unenforceable provisions or parts were omitted.
13.12
Non-Waiver.
A failure by either party to take any action with
respect to any default or violation by the other of any of the
terms, covenants, or conditions of this Agreement shall not in
any respect limit, prejudice, diminish, or constitute a waiver
of any rights of such party to act with respect to any prior,
contemporaneous, or subsequent violation or default or with
respect to any continuation or repetition of the original
violation or default.
13.13
Certain Representations and Warranties.
(a) The City represents and warrants to SMG the
following: (i) all required approvals have been obtained, and
the City has full legal right, power and authority to enter into
and perform its obligations hereunder, and (ii) this Agreement
has been duly executed and delivered by the City and constitutes
a valid and binding obligation of the City, enforceable in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally or by general
equitable principles.
(b) SMG represents and warrants to the City the
following: (i) all required approvals have been obtained, and
SMG has full legal right, power and authority to enter into and
perform its obligations hereunder, and (ii) this Agreement has
been duly executed and delivered by SMG and constitutes a valid
and binding obligation of SMG, 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.
13 .14
Governing Law.
@1995-2003. SMG. All rights reserved
41
Doc. #361753v.3
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Iowa, without
giving effect to otherwise applicable principles of conflicts of
law.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the day and year first
above written.
ATTEST:
Jeanne F. Schneider
CITY OF DUBUQUE, ~IOWA
.~
By /~ ~.
Terrance M. Duggan,
Mayor
SMG
By (Wes) /s/ H. Westley
Name:
Title: President/CEO
~.~
@ 1995-2003. SMG. All rights reserved
42
Doc. #361753v_3
EXHIBIT "A"
PRE-EXISTING AGREEMENTS
H - "Hold" F - "Firm (no contract)"
"City" no charge
2004
F July 12
H July 29, 30 & 31
Concert
H August 4
F August 5
F August 9
0 August 10
Charge)
C August 13
C August 14
F August 27-29
F August 30
C September 11
0 September 14
F September 16
C September 24&25
F September 27
F September 25&26
C October 1-3
F October 2&3
H October 5-8
F October 7 & 8
Lipizzaners
H October 9
0 October 12
F October 12-17
F October 16&17
C October 23
F October 25
F October 26-31
F October 29&30
F November 5-7
0 November 9
F November 9-14
F November 12-14
FC - "Contract"
0 -
Orpheum
Arena
US Trustees
AEG - Chad Cheek
for
Bijou
Orpheum
Orpheum
Majestic
Blood Center
US Trustees
US Trustees
Management Team (City - No
Theater NICC Graduation
Ballroom Jazmine's Variety Spectacular
Theater Symphony Auditions
Orpheum US Trustees
Arena/Theater Irish Dance Feis
Majestic Management Team
Orpheum US Trustees
Bijou Fly-By-Night Productions
Orpheum US Trustees
Arena Thunderbirds Hockey
Bijou Fly-By-Night Productions
Arena Thunderbirds Hockey
Theater Watchable Wildlife Conference
Arena White Stallion
Ballroom University of Dubuque Homecoming
Majestic Management Team
Theater Dubuque Symphony Orchestra
Arena Thunderbirds Hockey
Arena Wayne Brady
Orpheum US Trustees
Theater Dubuque Symphony Orchestra
Arena Thunderbirds Hockey
Arena Thunderbirds Hockey
Majestic Management Team
Theater Dubuque Symphony Orchestra
Arena Thunderbirds Hockey
@ 1995-2003. SMG. All rights reserved
A-1
DoC. #361753v.3
F November 19-21
F November 22-24
issued, not signed)
F November 22
H November 27-30
F November 28
F November 30
F December 1-5
H December 1
F December 3-5
F December 6-19
F December 10&11
0 December 14
F December 20
2005
H January 7
H January 7&8
F January 10
H January 14
F January 15
Basketball Classic
H January 16
F January 21-29
F January 21-23
F January 28-30
F January 29
F February 1-3
Olympics
F February
F February
F February
Classic
F February 13
F February 18-20
F February 25-27
C February 14-28
C March 1-7
F March 4&5
F March 8-13
F March 11&12
F March 13-26
F March 18&19
F March 25-27
F March 30&31
F April 1-4
Zoo
4-6
8-13
12
Arena
Arena
Orpheum
Arena
Theater
Theater
Theater
Arena
Arena
Theater The
Arena
Majestic
Orpheum
Arena
Bijou
Orpheum
Arena
Arena
Arena
Bijou
Arena
Arena
Theater
Arena
Arena
Theater
Arena
Thunderbirds Hockey
Sesame Street (contract
US Trustees
Trans Siberian Orchestra
Dubuque Dance Studio Recital
Dubuque Symphony Orchestra
Dubuque Symphony Orchestra
Trans Siberian Orchestra
Thunderbird Hockey
Nutcracker
Thunderbird Hockey
Management Team
US Trustees
Thunderbird Hockey
Fly-By-Night Productions
US Trustees
Thunderbird Hockey
Wendy's Women's
Thunderbird Hockey
Fly-By-Night Productions
Thunderbird Hockey
Thunderbird Hockey
Women's Conference
Illinois Special
Iowa Games
Dubuque Symphony Orchestra
Wendy's Men's Basketball
Arena Thunderbird Hockey
Arena Thunderbird Hockey
Arena Thunderbird Hockey
Theater Grand Opera House Show
Theater Grand Opera House Show
Arena Thunderbird Hockey
Theater Dubuque Symphony Orchestra
Arena Thunderbird Hockey
Theater Hempstead High School Musical
Arena Thunderbird Hockey
Arena AKC Dog Show
Bijou Fly-By-Night Productions
Arena Terry's Wilderness Ranch &
-2-
DOC. #361753v.3
F April 1&2
F April 1-11
F AprilS
F April 7-9
Championship
0 April 11-14
F April 12-17
F April 20-21
F May 1
F May 6&7
H May 10
F May 13
F May 14
F May 15
Rainsite
F May 20-29
F May 27
Practice
F May 29
F June 1-12
H November 22&23
Bijou
Theater
Arena
Arena
Fly-By-Night Productions
Wahlert High School Musical
All School Chorale
Budlight Bullriding
Arena
Theater
Arena
Theater
Arena
Theater
Arena
Arena
Arena
Bijou
Arena
Arena
Bijou
Arena
City Expo
Dubuque Symphony Orchestra
NICC Skills Competition
Dubuque Youth Symphony
Dubuque Symphony Arena Pops
Goldstar Teaching Awards
NICC Graduation
Loras College Baccalaureate
Loras College Graduation
Fly-By-Night Productions
High School Graduation
High School Graduation
Fly-By-Night Productions
Sesame Street
-3-
DoC. #361753v.3
'1~
Dùbuque
. 4 Tive Flags
GenIeI'
MEMO
TO: All Staff
FROM: Paula
DATE: June 2, 2004
RE: Contracts with service providers, etc...
SMG needs to have a list of contracts that Five Flags has with any companies. Please
write the information in the space below, and return to me by Monday, June 7. Make
multiple copies of this form if needed. Thanks!
Compm>y Noone 1~;/ b/Í/d ¡J~dz
Service Provided Co er
Contract Terms r!U{/Á4'~ ~ðYu. Q.I4JJ ¿:;¥ ir a. / ¿J.j~ /
rfI I' /"'
Contmct Dw-atioolExpinltion 9' ~ / c? M .:-,- )
Additional mfo 'I" '¡f~ ~= ~~ v 3.d. 9 ð
cc: ail Spence y/~ c~ c/j~ ,,¿!/¿f/
øß;r::~Y~
Y~~-ff~,ø¥.'
....:fZ! ø ð
;/
. ¿7/3"o?
405 Main Street - P.O. Box 628 - Dubuque, Jowa 52004-0628 . 563/589-4254 . Fax: 563/589-4351. TDD: 563/589-4193
PEf¡j!:
W
PEPSI-COLA BOTTLING CO. OF DUBUQUE
10523 At. 52 N. . Dubuque, Iowa 52001
Phone (319) 556-2921
Fax (319) 556-2924
PEM.
w
FIVE FLAGS CIVIC CENTER
,
EXCLUSIVE AGREEMENT
This is an exclusive agreement b:)tween Pepsi-Cola Bottling Company of
Dubuque and the Five Flags Civic Center. The length of this agreement is for
seven consecutive years commencing on May 1,1999.
Five Flags Civic Center agrees to carry exclusive Pepsi-Cola products for all of
their non-alcoholic beverages throughout the length of the contract. This
included all soft drinks, bottled waters, tea's, and isotonic drinks. In return,
Pepsi-Cola Bottling Company of Dubuque will honor all the obligations stated in
the attatched proposal.
Five Flags Civic Center
Name: 6~? j) (:;/fil-I¿£
Signature: IIt.jJi.~_a
Title: 1. þJ=-'3'¡¿/:¡2 ,:;il:/.!F:::r-:s: ¡Jí;!tt'/U-f),
Date: (/ 2.:2/ é/
Pepsi-Cola
Name: ~r.ft...,f)C)-~J¡¿"""';
Signa~~ ~
Title: ov'Pv...,¡,v.'LJL .A-14v'4C~LA--
Date: I - J.. 9 - (') i
CiW
.. --'7/- i
'OAl'E: ,'><'./ . (c-';
BI2 ¥?~ ~f; :~~8:~d:~)
Sfr~)f~e . - "" ¡;k:¡ .- / s..,? ¡-}~-<-/
City, -563 - . L--;-;? C¡ - <,L¡;;¿5;<-! Zip
Telephone
CONTRACT FOR SOLID WASTE SERVICES p/() é' S <.,I 7 i
"/
:cr.J.'::?
Service Location (which shall be deemed to include all locations to which
the identified location is relocated or reestablished).
Fax
Dear Ì'-
/\~', ,(
f ,
/'Íi(, L.-"'o/
'"
rbank you for choosing BFI as yom waste services company. Our aim is to provide this essential' iervice so responsibly and dependably that you don't need to give
t a second thought. We will do our best to keep you satisfied and want you to tell us when we don't. THIS CONTRACT WILL CONTINUE IN EFFECT FOR
rwo YEARS AND WILL RENEW FOR SUCCESSIVE ONE-YEAR PERIODS UNLESS TERMINATED IN WRITING BY EITHER ONE OF liS AT
ÆAST 30 DAYS PRIOR TO THE END OF THE INtTiAL OR ANY RENEWAL PERIOD. YOU MAY ALSO TERMINATE WHEN APPROPRIATE
JNDER "OUR GUÁRANTÝ". ì ...' . . ~
>UR MISSION
)m Mission is to provide the highest quality waste collection, transportation, processing, disposal and related services to both poblic and private customers
vorldwide. We will carry out our Mission efficiently. safely and in an environmentally responsible inanner with respect for the role of govemment in protecting the
.ublic interest.
>UR GUARANTY
I,fe guarantee the quality of om waste services, I f our services do not measure up to the standards described in this contract, and we do not correct the problem within
.8 hours (excluding Sundays and holidays) after we receive written notice from you (unless the problem is caused by circumstances outside our reasonable control),
ou may tenninate our services and thls COntract without penalty.
>UR RESPONSIBILITIES
The specific services we will provide, ¥od the schedule and initial charges for each service are listed below. We will give you at least thirty (30) days written
notice if increase our charges, which w~ reserve the right to do flóm time to time proportionately in connection with increases in costs for disposal, longer
transportation distances, fuel, regulatori' compliance, taxes. increases in average weight per container yard, and annual increases (if any) in the Consumer Price
Index. [n connection with increases in '~e costs of disposal, we frequently do not receive advance notice of increases. We reserve the right to pass on to you such
increases without thirty (30) days advance notice, but will give you as much notice as possible. We will also advise you in writing of the reason for the increase,
and do our best to explain and satisfy any concem you have about an increase. Any other type of price increase requires your consent.
. Our employees will be friendly, courteous and responsive. They will have gone through a customer satisfaction and safety trainin,¡¡ program, and will provide
qiiälity prófessional service.
We will provide and maintain the equipment YOll need for tbe deposit and other handling of the materials that we have agreed to piGk up from you,
. We are committed to making every pick-up as scheduled, but if we are unable to do so, we will make every effort to let you know in advance and reschedule it
within 24 hours.
'. If you require changes to the type, size or amount of equipment or the type 01' frequency of service, we willnotiry you promptly of any corresponding adjustments
to the rates. You agree 'that YOllr àccepta~ce ofthè new equiprf1ent and/or servic~ and the adjusted rate will constitute a modification of this contract.
lOUR RESPONSIBILITIES
You agree that BFT will provide the specified services for all your non-hazardous waste and recyclable material. You agree not to deposit any radioactive, volatile,
corrosive. highly flammable. explosive, infectious, toxic or hazardous waste in our equipment and will indemnify us from resulting liabilities if you do. Anything
else that is deposited in our truck becomes our property at that tillle.
You agree to provide us with access tll our equipment over surfaces that can sustain the weight and operation of our vehicles.
(By weigtrror volume), abuse or move our equipment; but if it does need to be moved, you will call us.
You also agree not to overload
You agree to use your best efforts to keep people fiorn coming into contact with our equipment other than those who are authorized and trained to use il-
You agree to pay our bills monthly, within ten days after they are received. We Teserve the right to charge a late fee on all past due payments.
If you terminate this contract during your first 12 mont~s as a BfÌ custom.er (other than as provided under "Our Guaranty"),', you agree to pay us, as liquidated
damage and not as a penalty. three tillles your highest monthly clilfi-ge of the previous six months. If you terminate after you have been a BFI customer for more
than 12 months (other than as provided-under "Our Guaranty"), you agree to pay us as liquidated damages and not as a penalty two times your highest monthly
charge of the previous six months. We aiso reserve the right to recover attorney fees if you violate this contract.
I,fe look forward to a long-lasting relationship, so please let us know if you have any problems or concerns as they occur and give us the opportunity to provide
olutions. As we deliver our services, we will continuously look for ways to keep you satisfied.
.INE NO
SYSTEM
on
CaNT OOZE
~86E ~ ¡ca.. c'i.~
- H~~Is ~fE'
EST.
MNTS
o,sp
S'TE
MI"
HAU,"
M'N. HAU'
RATE
MO'¿,~';,';-iG"';;UIP
N 1
E 2
W 3
0 1
L 2
D 3
":" " ,c,;.
/1
T--Ie
Lj
/
'/
"':':'
..<
j
;¿"..,;,¿{ ,q
OTHER SERV'CES.
OTHER CHARGES'
'1olloff (04), Containerized (09 05 07), Recycling ( 10). Medical Waste (08), Compactor_, Other
;
CUSTO~R
¡Yo
"" J'
'--C_>,' --
(NAME OF OP~R,ATIN
BY: ' ,
rn:'LE:_"\' "::?;;:.2.:
,
'.0'" '?JJ.,'
-','
TITLE:
.GREED TO THIS :;";" DAY OF ,/(/, "r,f:
,200 -=?
SERVICE TO START ON,
CUSTOMER COpy
100-47510W (3IIIð
SCHEDULE C
INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES
1. All policies of insurance required hereunder shall be with an insurer authorized to
do business in Iowa. All insurers shall have a rating of A of better in the current
AM. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque if cancellation is prior to the
expiration date. This endorsement supersedes the standard cancellation
statement on the Certificate of Insurance.
3. SMG shall furnish a Certificate of Insurance to the City of Dubuque, Iowa for the
coverage required in Paragraph 6 below. Such Certificates shall include copies of the
following endorsements:
a) Thirty day notice of cancellation to the City of Dubuque.
b) Commercial General Liability policy is primary and non-contributing.
c) Commercial General Liability additional insured endorsement.
d) Governmental Immunities Endorsement.
e) Waiver of Recovery under workers compensation.
SMG shall also be required to provide Certificates of Insurance of all subcontractors and
all sub-sub contractors who perform work or services pursuant to the provisions of this
contract. Unless the City Manager otherwise consents in writing, said certificates shall
meet the same insurance requirements as required of SMG.
4. Each certificate shall be submitted to the contracting department of the City of Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. Contractor shall be required to carry the following minimum coverage/limits or greater if
required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
@ 1995-2003. SMG. All rights reserved
B-1
DoC. #361753v. 3
This coverage shall be written on an occurrence, not claims made, form per the
above. All deviations or exclusions from the standard ISO commercial general
liability form CG 0001 or Businessowners BP 0002 shall be clearly identified.
Governmental Immunity endorsement identical or equivalent to form attached.
An additional insured endorsement identical or equivalent to ISO Form CG 2026
and include as additional insureds: "The City of Dubuque, including all its elected
and appointed officials, all its employees and volunteers, all its boards,
commissions and/or authorities and their board members, employees, and
volunteers."
b) WORKERS COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee-disease
$500,000 policy limit-disease
Policy shall include an endorsement waiving right of recovery against City
of Dubuque.
The foregoing is not intended to require SMG to cover occupational related
diseases of any City employees who provide any services at the Facility as a
part-time employee of SMG except to the extent that such disease is
demonstrated to be directly related to their work at the Facility.
c) PROFESSIONAL LIABILITY:
d) UMBRELLA/EXCESS LIABILITY
e) DRAM SHOP
$1,000,000
$2,000,000
$3,000,000
B-2
Doc. #361753v.3
POLICY NUMBER
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY.
14.
ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the
following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization;
The City of Dubuque, including all its elected and appointed
officials, all its employees and volunteers, all its boards,
commissions and/or authorities and their board members,
employees, and volunteers.
B-3
Doc. #361753v.3
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1.
Nonwaiver of Governmental Immunity. The insurance carrier
expressly agrees and states that the purchase of this policy
and the including of the City of Dubuque, Iowa as an
Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it
may be amended form time to time.
2.
Claims Coverage. The insurance carrier further agrees that
this policy of insurance shall cover only those claims not
subject to the defense of governmental immunity under the Code
of Iowa Section 670.4 as it now exists and as it may be
amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and
conditions of this insurance policy.
3.
Assertion of Government Immunity. The City of Dubuque, Iowa
shall be responsible for asserting any defense of governmental
immunity, and may do so at any time and shall do so upon the
timely written request of the insurance carrier.
4.
Non-Denial of Coverage. The insurance carrier shall not deny
coverage under this policy and the insurance carrier shall not
deny any of the rights and benefits accruing to the City of
Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction
has ruled in favor of the defense(s) of governmental immunity
asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of
governmental immunities shall not otherwise change or alter the
coverage available under the policy.
B-4
Doc. #361753v.3
2. ENGAGEMENT OF SMG; SCOPE OF SERVICES. ...................................................... 5
2.1
2.2
2.3
2.4
2.5
2.6
3. TERM AND RENEWAL. .................................................................................................. 11
3.1
3.2
4. SM G' S CO MPENSA TI ON. ............................................................................................... 12
4.1
4.2
5. FUNDING; BUDGETS; BANK ACCOUNTS. ................................................................14
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
6. RECORDS, AUDITS AND REPORTS. ........................................................................... 20
6.1
6.2
6.3
7. EMP L 0 YEE S. ..... ............. ......... ....................... .......................... ......................... ............... 22
7.1
7.2
7.3
7.4
1.
TABLE OF CONTENTS
DE FINITI 0 N S ............ ...................... ........................................... ............................. ............ 1
EN GAGE MENT . ....... .................. ..................... ...................................................... """""" 5
SCOPE OF SERVICES -- GENERALLY. ............................................................................. 6
S PECIFI C S ER VICES. .................................................................. ..................................... 6
RIGHT OF ENTRY RESERVED. ........................................................................................ 9
CO NFID E NTIALITY IN 0 ND ISCLOSURE. ........................ ................................................... 9
SCHEDULING AND BOOKING OF EVENTS. .................................................................... 11
MANAGEMENT TERM AND RENEWAL TERM. .............................................................. 11
NEW CONTRA CT. ..................... ........................ ..... ................. .............................. ......... 12
FIXED FEE... .................. """" ............................................ ................................ ............ 12
INCENTIVE FEE.... ........................................................................... .............................. 12
OPERATING FUNDS. .. .............. ............................................. ......................................... 14
NON - FUNDING. ................. ........................ ................ ...................................... .............. 14
ANNuAL BUDGET; CASH FLOW BUDGET. ................................................................... 15
BUDGET MODIFICATIONS INITIATED BY SMG. .......................................................... 16
BUDGET MODIFICATIONS INITIATED BY THE CITY. ................................................... 17
MARIa: TIN G FUND. .. ............... ...................... ............................................................... 1 7
RECEIPTS AND DISBURSEMENTS. ................................................................................. 17
TI CKE T SALES REVENUES... ............................................................................ ............. 18
CAPITAL IMPROVEMENTS; CAPITAL EQUIPMENT. ..................................................... 18
LIMITATION OF SM G LIABILITY................................................................................. 19
FUNDS FOR EMERGENCY REPAIRS. ............................................................................. 19
SM G CAPITAL CONTRIBUTION. .................................................................................. 19
RECORDS AND AUDITS. ....................................................... ......................................... 20
ANNuAL PLAN. ...................................................... ......................... .............................. 21
MONTHLY RE PORTS. ............... ................................................ ..................................... 21
S M G E MPLO YEES. ...... .......................... .............................. ....................... .................. 22
CITY E MPLO YE ES. .......... ............................................. ....................... .......................... 22
No SOLICITATION OR EMPLOYMENT BY CITY............................................................ 24
TE RMIN A TI ON.................................................................. ............................................. 24
@ 1995-2003. SMG. All rights reserved
(i)
Doc. #361753v.3
8. IND EMNIFI CA TI ON AND INSURANCE. ..................................................................... 25
8.1
8.2
8.3
8.4
8.5
8.6
9. OWNERSIDP OF ASSETS. .............................................................................................. 29
9.1
9.2
10. ASSIGNMENT; AFFILIA TES. .................................................................................... 30
10.1
10.2
11. LAWS AND PERMITS. ................................................................................................. 31
11.1
11.2
11.3
12. TE RMIN A TI ON. ...................................... ......... """"""'" ..................... ......................... 32
12.1
12.2
12.3
12.4
13. MI SCELLANE 0 U S. ................................... """" .................... ........................ ............... 34
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
13.11
13.12
13.13
13.14
IND EMNIFI CA TI ON. ...................................... ......... ................... ........................ ............. 25
LIABILITY IN SURAN CE. ............... ......................... ...................... ....... ....... """" """""" 2 7
WORKERS COMPENSATION INSURANCE................... ERROR! BOOKMARK NOT DEFINED.
FIDELITY BOND AND SURETY AND PERFORMANCE BOND. ......................................... 27
PROPERTY INSURANCE................................................................................................. 27
C ER T AIN OTHER IN SURAN CE.............. ........................... ...................... ........................ 28
OWNERS HIP. ...... ..................................... ..... ..................... ............................................ 29
CITY OBLI GA TI ONS. ..................................................................................................... 29
Ass I G NMENT . ........................... .............................. ................... ....................... ............. 30
S M G ÁFFILIA TE S. ....... """"" ................ .......... .......... .... ......................... ...................... 30
PERMITS. LICENSES. TAXES AND LIENS...................................................................... 31
GOVERNMENTAL COMPLIANCE. .................................................................................. 31
No DISCRIMINATION IN EMPLOYMENT; AFFIRMATIVE ACTION. .............................. 32
TERMINA TI ON UPON DEF AUL T. ................................................................................... 32
TERMINATION OTHER THAN UPON DEFAULT............................................................. 32
EFFECT OF TERMINA TIO N ............................................................................................ 33
S URREND ER OF PREMISE S. ........................... ................. """"" ..................... ................ 33
USE OF FACILITY AT DIRECTION OF CITY. ................................................................. 34
D IS P UTE RE SO L UTI ON. ... ............................................ ........................ .......................... 35
No PARTNERSHIP OR JOINT VENTURE. ....................................................................... 37
ENTIRE A G RE E MENT . ............ .................................. ............................................. ........ 3 7
WRITTEN AMEND ME NTS. .......................... .................... ................................ ............... 37
FORCE MAJE URE. ........ .............. .. ......................... ..................... ......................... .......... 37
BINDING UPON SUCCESSORS AND ASSIGNS; No THIRD-PARTY BENEFICIARIES....... 39
No TI CES. ............................................. .......................................................................... 39
SECTION HEADINGS AND DEFINED TERMS.................................................................. 40
CO UNTERP ARTS. ............................................... ........ ..................... .......... ................. 40
S E VERAB ILITY. ................................. ............. ..................... ...................................... 41
NON-WAlVER...... ................ ................................................... ..................... ............. 41
CERTAIN REPRESENTATIONS AND WARRANTIES.................................................... 41
GOVERNING LAW. .................................................................................................... 41
@ 1995-2003. SMG. All rights reserved
(ii)
DoC. #361753v.3
'"~
Dùbuque
Five Flags
Gente,.
MEMO
TO: All Staff
FROM: Paula
DATE: June 2, 2004
RE: Contracts with service providers, etc.. .
SMG needs to have a list of contracts that Five Flags has with any companies. Please
write the infonnation in the space below, and return to me by Monday, June 7. Make
multiple copies of this fonn if needed. Thanks!
Compony Name 1?';! ¿,J///¿d llæ£dZ
Service Provided Co er
CoWact T= 6tuÁ4jC' ~. (J".I ÙI-¥ ~ fl. t ¿I,j- )
/I I'
Conttact DurntionlExpll-ation 9- £2 / 0;' ß¿ .5- )
Addtt.onal mfo 'fJA w ~ ~;:;; ~~ v,Ú7. 9 ð
cc: Gil Spence <?~ c~ ch? ...tf/tf/
ø~:=zf!y~
Y~~-ff~-ø¥'
...:fZ'! &:7 ð
:;/
. ¿f'/5o?
405 Main Street - P.O. Box 628 - Dubuque, Iowa 52004-0628.563/589-4254. Fax: 563/589-4351. TOD: 563/589-4193
'PE8!.
.,
PEPSI-COLA BOTTLING CO. OF DUBUQUE
10523 Rt. 52 N. . Dubuque, Iowa 52001
Phone (319) 556-2921
Fax (319) 556-2924
PElil
.,
FIVE FLAGS CIVIC CENTER
,
EXCLUSIVE AGREEMENT
This is an exclusive agreement b:Jtween Pepsi-Cola Bottling Company of
Dubuque and the Five Flags Civic Center. The length of this agreement is for
seven consecutive years commencing on May 1, 1999,
Five Flags Civic Center agrees to carry exclusive Pepsi-Cola products for all of
their non-alcoholic beverages throughout the length of the contract. This
included all soft drinks, bottled waters, tea's, and isotonic drinks. In return,
Pepsi-Cola Bottling Company of Dubuque will honor all the obligations stated in
the attatched proposal.
Five Flags Civic Center
Name: C~? .f)Çfßfrlc¿:
Signature: I/J..;¡¡u!
Title: L þ¡~'j¿/:J2 .!;ffl:tlr<:;;ð- ;JJffit'¡/-(;/l¡),
Date: ¡/2;2/ ?j
Pepsi-Cola
Name: ~t.Æ..-I),-^~J¡¿<.~
Signa~~ ~
Title: OIJ-PtA-/,V-Z,JL .414v'4c,LA--
Date: I - J.- 9 - (') I
wu
.1! -' (- ,./,~
DATE: \(/. '.
aD. (:#~,~ : ~~L2,~
Sfr~"?,,) ~e . ~ !&h . . I 5-:; tJO-<-/
City, 563 - . L-;-;? C) - <,Ld.<)<-! Zip
Telephone Fax
Dear ~ /\~; ,( /tI~ L-.;.,/
CONTRACT FOR SOLID WASTE SERVICES ..#/ () é:\ -S- 'l 7 <1
: ~:"l::?
Service Location (which shall be deemed to include all locations to which
the identified location is relocated or reestablished).
Thank you for choosing BFI as your waste se",ices company. Our aim is to provide this essential's'e",ice so responsibly aod dependably that you don't need to give
it a second thought. We will do our best to keep you satisfied and want you to tell us when we don't. THIS CONTRACT WILL CONTINUE IN EFFECT FOR
TWO YEARS AND WILL RENEW FOR SUCCESSIVE ONE-YEAR PERIODS UNLESS TERMINATED IN WRITING BY EITHER ONE OF US AT
LEAST 30 DAYS PRIOR TO THE END OF THE INITIAL OR ANV RENEWAL PERIOD. YOU MAY ALSO TERMINATE WHEN APPROPRIATE
UNDER "OUR GUARANTÝ". ! .,' , .,.
OUR MISSION
Our Mission is to provide the highest quality waste collection, transportation. processing, disposal and related services to both public and private customers
worldwide. We will carry out our Mission efficiently, safely and in an environmentally responsíble manner with respect for the role of government in protecting the
public interest.
OUR GUARANTY
We guarantee the quality of our waste se",ices, If our services do not measure up to the standards described in this contract, and we do not correct the problem within
48 hours (excluding Sundays and holidays) after we receive written notice from you (unless the problem is caused by circumstances outside our reasonable control),
you may tcrminate our services and th~s contract without penalty.
OUR RESPONSIBILITIES
1. Thc specific services we will provide, ~d the schedule and initial charges for cach se",ice aTe listed below. We will give you at least thirty (30) days written
notice if incrcase our charges, which w~ rcse",e the right to do fiôm time to time proportionately in connection with increases in costs for disposal, longer
transportation distances, fuel. regulatozj compliance, taxes, increases in average weight per container yard, and annual increases (if any) in the Consumer Price
Index. In connection with increases in t~e costs of disposal. we frequently do not receive advance notice of increases. We reserve the right to pass on to you such
increases without thirty (30) days advance notice, but will give you as much notice as possible. We will also advise you in writing of the reason for the increase,
and do our best to cxplain and satisfy any concern you have about an increase. Any other type of price incrcase requires your consent.
2. Our employees will be friendly. courteous and responsive. They will have gone through a customer satisfaction and safety trainin,g program, and will provide
qillility prdfessional se",ice.
3.
We will provide and maintain the equipment you need for the deposit and other handling of the materials that we have agreed to piG!< up from you.
4. We aTe committed to making every pick-up as scheduled. but if we aTe unable to do so, we will make every effort to let you know ~ advance and reschedule it
within 24 hours.
5.
If you require changes to the type, size or amount of equipment or the type or frequency of service, we will notify you promptly ofany corresponding adjustments
to the rates. You agree 'thaI your áccepta~c" of the new equip""ent and/or se",ic¿ and the adjusted rate will constitute a modification of this contract.
YOUR RESPONSIBILITIES
\. You agree that 8FT will provide the specified services for all your non-hazardous waste and recyclable material. You agree nol to deposit any radioactive, volatile,
corrosive, highly flammable, explosive. infectious, toxic or hazardous waste in our equipment and will indemnify us from resulting liabilities if you do. Anything
else that is deposited in our truck becomes our property at that time.
2.
You agree to provide us with access to our equipment over surfaces that can sustain the weight and operation of our vehicles.
(try weighror volume), abuse or move our equipment; but if it does need to be moved, you will call us.
You also agree not to overload
3.
You agree to use your besl efforts to keep people ITom coming into contact with our equipment other than those who are authorized and trained to use it.
~. You agree to pay our bills monthly, within ten days after they are received. We reserve the right to charge a lale fee on all past due payments.
5.
If yóu lerminatè this contract during y6ur first 12 mont~s as a 8FI cuslomer (other than as provided under "Our Guaranty"). . you agree to pay us, as liquidated
damage and not as a penalty. three timc:!syour highest monthly c!\!lrge of the previous six months. If you terminate after you have been a BFI cus1omer fnr more
than I:! months (other than as provided'uuder "Our Guaranty"), you agree to pay us as liquidated damages and not as a penalty two times your highest monthly
charge of the previous six months. We also reserve the right to recover attorney fees if you violate this contrac\.
We look forward to a long-lasting relationship, so please let us know if you have any problems or concerns as they occur and give us the opportuuity to provide
solutions. As we dehver our services. we will continuously look for ways to keep you satisfied.
lONE NO
SYSTEM
OTY
CONT. SOZE
cY86E i þ ~
H¡tIs ~~
EST.
Mm.
msp
.'TE
MO"
HAUes
'<ON, HAUL
RATE
MONTHCY EOUOP
CHARGES
N 1
IE 2
W 3
0 1
IL 2
ID 3
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'T' .
/-/
7- ,£'
L/
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"'A )o..~
~'
OTHER SERUICES,
OTHER CHARGES
Rolloff (04). Containerized (09 05P?)' Recycling ( 10), Medical Waste (08), Compactor_, Other
CUSTO~R
BY:
"<
"
'-',->'"
(NAME OF OP~R,AT'N
BY: ' ,
Tn¡LE: ,,~, ~),.;:=<,<".. /, ,- 3.-C
~/ ,c-è -?J.:'-" -",'
TITLE:
AGREED TO THIS~ DAY OF /1/- "<c,o{
, 20,:7 ~
SERVICE TO START ON:
CUSTOMER COpy
100..7510W (s.1HI