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FOURTH AMENDMENT TO DPAC OPERATING AGREEMENT FOR PARKING VOUCHER PROGRAM AND OPERATION OF CITY VOLUNTEER PROGRAM
This contract amendment (“Amendment No. 4” or “Fourth Amendment”) is dated, made and entered into as of the ________ day of ______________, 2009, by and among the CITY OF DURHAM (“City”), DURHAM PERFORMING ARTS LLC, a Delaware limited liability company (the “Operator”) with offices at 220 Weybosset Street, Providence, Rhode Island, and JN WORLDWIDE LLC, a Delaware limited liability company (“JN”) with offices at 14450 Broadway, 6th Floor, New York, New York, and PROFESSIONAL FACILITIES MANAGEMENT, INC., a Rhode Island corporation (“PFM”) with offices at 220 Weybosset Street, Rhode Island. JN and PFM are collectively hereinafter referred to as the “Guarantors,” while the City and the Operator are collectively hereinafter referred to as the “Parties.” BACKGROUND The City and the Operator entered into a contract titled “DPAC Operating Agreement by and between the City of Durham, North Carolina and Durham Performing Arts LLC and JN Worldwide LLC, and Professional Facilities management, Inc.,” dated, by signature of the City Manager, April 29, 2007. That contract is referred to as the “Original Contract.” The Parties have made the following amendments to the Original Contract: (1) By an instrument titled “Amendment to DPAC Operating Agreement to put into Effect Certain Duties Required by Naming Rights Agreement with BCBSNC” dated March 7, 2008 (“Amendment No. 1”), the Original Contract was amended to implement the various City and Operator obligations and duties prescribed by the BCBSC Naming Rights Agreement entered into between the City and BCBSNC; and (2) By an instrument titled “Second Amendment to DPAC Operating Agreement to put into Effect Certain Duties Required by Naming Rights Agreement with Robert D. Teer, Jr.” dated ___________ ___, 2009 (“Amendment No. 2”), the Original Contract was amended to implement the various City and Operator obligations and duties prescribed by the Robert D. Teer, Jr. Naming Rights Agreement entered into between the City and Mr. Teer. (3) By an Instrument titled “Third Amendment to DPAC Operating Agreement” dated March 17, 2009 (“Amendment No. 3”), the Original Contract was amendment to modify prior pre-opening budget terms and require the Operator to assume certain operating responsibilities for the DPAC Light Sculpture designed by Jaume Plensa and installed in the DPAC Plaza. TERMS AND CONDITIONS The defined terms of the Original Contract, including the amendments, shall have the same meaning in this Fourth Amendment. The parties agree to further amend the Original Contract as follows:
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1.0 Parking Voucher Program for DPAC Season Ticket Holders. In order to promote and incentivize the use of the DPAC by season ticket holders, the City will accept parking vouchers from season ticket holders for DPAC Broadway Series Stage Productions under the following conditions: 1.1 Distribution of City Parking Vouchers to Season Ticket Holders. The Operator shall create no more than one city parking voucher to be valid for use at certain city parking garages, as described herein, to be used at a Performance of a DPAC Broadway Series Stage Production, for each Person that purchases one or more Season Ticket(s) to the DPAC Broadway Series Stage Productions. A “Season Ticket” is defined as one ticket to each Performance of each DPAC Broadway Series Stage Production. It is estimated that a typical DPAC Broadway Series will include a total of 6 to 7 Stage Productions. For each Person that purchases more than 2 Season Tickets for the DPAC Broadway Series, the Operator may distribute an additional city parking voucher to said Person for each pair of Season Tickets purchased in excess of 2 Season Tickets. By illustration, if a Person purchases 1, 2 or 3 Season Tickets, only one city parking voucher will be provided to that Person by the Operator. If, however, a Person purchases 4 Season Tickets, 2 city parking vouchers will be provided to that Person by the Operator. If, however, a Person purchases 5 Season Tickets, only two city parking vouchers would be provided to that Person, but if the same Person purchased 6 Season Tickets, 3 city parking vouchers could be distributed to that Person. 1.2 Use of City Parking Vouchers. Each city parking voucher that is distributed by the Operator shall identify the DPAC Broadway Series Stage Production and Performance date for which the city voucher is valid. The city parking voucher shall state on its face that it is valid at the following city operated garages, on a first-come, first-serve basis, available spaces permitting: (1) the North Deck Parking Garage (corner of W. Pettigrew St. and Julian Carr St.), (2) Corcoran St. Garage (corner of S. Corcoran St. and Ramseur St.), and (3) Church St. Garage (at N. Church St. and E. Main St.). Each city parking voucher shall be valid on the date of the specified Performance for use at the identified parking deck locations no more than 120 minutes before the specified Performance and running continuously to 90 minutes after the Performance. Upon arriving at one of the listed parking deck locations, the user of the city parking voucher may simply tender the city parking voucher to the parking attendant and use one parking space, as they are available. 1.3 City Parking Voucher Payment Procedure. After the end of each subject Stage Production for which city parking vouchers are used, the City shall directly, or through its parking management contractor, submit to the Operator the city parking vouchers that were collected from and used at the identified parking deck locations, including an invoice to the Operator for payment. Each invoice shall identify the number of city parking vouchers used and for which garage location. The City shall charge the Operator 25% of the city then listed schedule of special event parking fees for the North Deck Parking Garage and 100% of the city then listed schedule of special event parking fees for the Corcoran St. and Church St. Garages. If for example, the then special event fee to park in a single space at the North Deck garage is $4.00, the Operator shall be 2
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charged only $1.00 for each city parking voucher used at that location. If the then special event fee to park in a single space at the Corcoran St. and Church St. Garages is $2.00, the Operator shall be charged $2.00 for each city parking vouchers used at those locations. The Operator shall reimburse the City within 30-days of receipt of the invoice and used city parking vouchers. 2.0 City Volunteer Program to Promote Performance Arts and Civic Duty. In order to promote opportunity for exposure to the performance arts to Durham citizens and encourage civic duty to the City, Operator agrees to establish, administer and manage a City DPAC Volunteer Program under the following conditions: 2.1 Program Purpose and Volunteer Duties. Within 60-days of the date of execution of this Fourth Amendment, Operator shall present a proposed written program outline for the establishment and operations of a City DPAC Volunteer Program. The program outline shall describe the purpose and objectives of the volunteer program, which shall include a description of the outreach efforts to be made to identify and attract Durham citizens that may benefit the most from participating in such a program. The program outline shall describe with sufficient detail the roles and civic duties of the volunteers including how the volunteers will be expected to assist guests at the DPAC with directions, checking of tickets and other guest assistance and services, and hours and frequency of service. Finally, the proposed program outline shall also provide waiver forms, approved by the City Manager, as necessary to protect the City from any liabilities or claims associated with the work to be performed by the Volunteers. Upon acceptance of the volunteer program outline by the City Manager or his designee, the Operator may immediately implement such program, which may be terminated at any time at the discretion of the City Manager with 60-days prior written notice. The services provided by the City DPAC volunteers shall be offered freely and without pressure or coercion, direct or implied, from the Operator or City. 2.2 Insurance Coverage and Indemnification. Operator agrees to make certain any volunteer would be covered under the DPAC Operating insurance policy as fully as if the volunteer were employed by the Operator. Additionally, the City DPAC volunteers are “Volunteers” as defined and subject to the indemnification provisions of Section 6.2 of the Original Contract. 3.0 Effect of Amendment. The terms of the Original Contract not added to, amended or altered by this Amendment shall remain in full force and effect. IN WITNESS WHEREOF, the Parties and the Guarantors have caused this Agreement to be executed themselves or by their respective duly authorized agents or officers. CITY OF DURHAM ATTEST: ______________________________ By: 3 ______________________________
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______________ Clerk
________________ City Manager
DURHAM PERFORMING ARTS LLC By JN America LLC, a Delaware limited liability company, manager of Durham Performing Arts LLC By: ____________________________________________________ Nicholas Scandalios, manager of JN America LLC
DURHAM PERFORMING ARTS LLC By Professional Facilities Operations, LLC, a Rhode Island limited liability company, manager of Durham Performing Arts LLC By: ____________________________________________________ James Lynn Singleton, manager of Professional Facilities Operations, LLC
PROFESSIONAL FACILITIES MANAGEMENT INC. By: ____________________________________________________ James Lynn Singleton, President of Professional Facilities Management Inc.
JN WORLDWIDE LLC By: ____________________________________________________ Nicholas Scandalios, Manager
NORTH CAROLINA
ACKNOWLEDGMENT BY CITY OF DURHAM
COUNTY of _________________________ I, a Notary Public in and for the aforesaid County and State certify that ___________________________________________ personally appeared before me this day, and acknowledged that he or she is the ______________ City Clerk of the City of Durham, a municipal corporation, and that by authority duly given and as the act of the 4
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City, the foregoing AMENDMENT was signed in its corporate name by its _____________ City Manager, sealed with its corporate seal, and attested by its said City Clerk or Deputy City Clerk. This the _______day of _______________________, 20_____. _________________________________ Notary Public My commission expires: ____________________
State of _________________________ County of ________________________
ACKNOWLEDGMENT BY DURHAM PERFORMING ARTS LLC
I, CERTIFY THAT Nicholas Scandalios personally appeared before me this day in the aforesaid county and state acknowledging to me that (1) he is a manager of JN America LLC; (2) JN America LLC is a duly organized and existing Delaware limited liability company; (3) JN America LLC is a manager of Durham Performing Arts LLC; (4) Durham Performing Arts LLC is a dully organized and existing Delaware Limited Liability Company; (5) he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated. This the ______ day of ___________________, 20______. My commission expires: ________________________ ________________________________________ Notary Public
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State of __________________________ County of ________________________
ACKNOWLEDGMENT BY JN WORLDWIDE LLC
I, CERTIFY THAT Nicholas Scandalios personally appeared before me this day in the aforesaid county and state acknowledging to me that (1) he is a manager of JN WORLDWIDE LLC; (2) JN WORLDWIDE LLC is a duly organized and existing Delaware limited liability company; (3) he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated. This the ______ day of ___________________, 20______. My commission expires: ________________________ ________________________________________ Notary Public
State of __________________________ County of ________________________
ACKNOWLEDGMENT BY DURHAM PERFORMING ARTS LLC
I, CERTIFY THAT James Lynn Singleton personally appeared before me this day in the aforesaid county and state acknowledging to me that (1) he is a manager of Professional Facilities Operations, LLC; (2) Professional Facilities Operations, LLC is a duly organized and existing Rhode Island limited liability company; (3) Professional Facilities Operations, LLC is a manager of Durham Performing Arts LLC; (4) Durham Performing Arts LLC is a dully organized and existing Delaware Limited Liability Company; (5) he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated. This the ______ day of ___________________, 20______. My commission expires: ________________________ ________________________________________ Notary Public
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State of __________________________ County of ________________________
ACKNOWLEDGMENT BY PROFESSIONAL FACILITIES MANAGEMENT INC.
I, CERTIFY THAT James Lynn Singleton personally appeared before me this day in the aforesaid county and state acknowledging to me that (1) he is President of PROFESSIONAL FACILITIES MANAGEMENT, INC.; (2) PROFESSIONAL FACILITIES MANAGEMENT, INC. is a duly organized and existing Rhode Island corporation; (3) he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated. This the ______ day of ___________________, 20______. My commission expires: ________________________ ________________________________________ Notary Public
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