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FACILITY USE AGREEMENT ~ oj ,o' J/J .~ " -' .. FACILITY USE AGREEMENT THIS LEASE, made and entered into this I~ day of fY\CLA-~ ,2001, by and between CITY OF CLEARWATER, a municipal authority, whose mailing address is: Attn: , Post Office Box 4748, Clearwater, FL 33758-4748, hereinafter referred to and PACT, INC., a Florida not-for-profit corporation, whose mailing address is: , 1111 McMullen-Booth Road, Clearwater, FL 33759, hereinafter referred to as as "City", Attn: "PACT" , WIT N E SSE T H: WHEREAS, PACT was incorporated in 1978 for the sole purpose of acquiring, constructing, operating and maintaining a performing arts center [the "Facility"] in the City; and WHEREAS, incident to PACT constructing the Facility, and operating and maintaining the same, the City and PACT entered into an initial Facility Availability Agreement dated December _, 1978, which was canceled and replaced by that Facility Use Agreement dated June 1,1981; and WHEREAS, PACT is in the process of conducting a fund raising campaign and raising financing to renovate, modernize and expand the Facility, incident to which activities the property heretofore owned by PACT is being transferred to the City of Clearwater, such that the parties wish to enter into and execute a new Facility Use Agreement; and WHEREAS, PACT has, and will continue to operate and maintain the Facility and the area generally for the citizens of Clearwater and for various community groups within the City of Clearwater, in consideration of which the City will enter into a Guaranty Agreement, in a form reasonably acceptable to City, with PACT and a lender or lenders pursuant to the proposed financing, refinancing, renovation, modernization and expansion ofthe Facility, subject to the City's reasonable approval of the plans and proposals for any renovation, modernization and expansion, such guaranty to be unconditional but limited to an amount not to exceed $1,000,000 principal and interest, inclusive. WHEREAS, in consideration of the services and benefits provided the community at large and in that the City as part of its public recreation program desires to secure for the public the availability of the Facility for use and performance by various community groups in the Facility service area, and to facilitate its use, provide a subsidy from public funds in consideration of this Facility Use Agreement; and WHEREAS, PACT and the City wish to set forth their respective rights and obligations regarding the operation and use ofthe Facility, and to terminate that certain Facility Use Agreement dated June 1, 1981, previously entered into between them. j,. F /:. I " . <,,'. '- , /-,;) : ~:' / ,: .00 , ~., NOW, THEREFORE, in consideration of the mutual promises herein contained, the City and PACT agree as follows: 1. Recitals. The recitals set forth above are true and correct and are incorporated herein by reference. 2. Use of Facility. Subject to the other terms and provisions of this Agreement, PACT agrees to make the Facility available for use under this Agreement by The City of Clearwater for the Clearwater Community Chorus and for Clearwater City Players, or other City funded organizations as designated by the City. Consistent therewith the City shall be provided up to twelve (12) uses per year of Ruth Eckerd Hall for rehearsals and/or performances with no rental fee charged and up to twenty (20) uses per year of Studio One for rehearsals and/or performances with no rental fee charged. PACT, Inc. shall supply marketing support for City sponsored events at Ruth Eckerd as normally provided to renters of the facility. On an armual basis, the City and PACT, Inc. will meet to determine reasonable additional opportunities for expanded City use which when mutually agreed upon would be offered with no rental fee to the City. Providing such facilities to the City shall be subject to scheduling of availability, and out- of-pocket costs or charges incurred by PACT shall be billed to the City. 3. Governmental Assistance. PACT shall have the primary responsibility for obtaining funds for its budget from private sources and from local, state and federal governmental sources. City agrees to being one of those sources of the funding of PACT's budget, and agrees to assist PACT in obtaining funds from other sources. In seeking the support from City, PACT agrees to submit any request for City funds pursuant to procedures then in effect within the City. There shall be no commitment as to City funds until the annual budget of the City has been approved, and funds for PACT duly authorized. Subject to the foregoing right to review and approve, in recognition of the value, both economic and cultural, that PACT brings to the City, and consistent with its armual support heretofore provided, it is the City's goal and intent to continue annual payments and assistance, beginning with $412,000 for fiscal year 2000- 2001 and to continue such payments, adjusted for inflation, on an annual basis during this Facility Use Agreement or any extensions hereof. The City is under no obligation to fund any entity other than PACT under the terms of this Facility Use Agreement. 4. Annual Commitment by City. The City intends to provide funding to PACT consistent with ~3 above, on an annual basis, subject to the terms and conditions of this section and other applicable provisions of this Agreement. City anticipates that funding should increase on an annual basis, reflecting increased costs, inflation and other factors. However, if the City determines that sufficient funds will not be available for such purposes in any year or years, then prior to July 15t of each year the City may, by written notice to PACT, determine not to require the Facility to be made available during the next ensuing fiscal year to community groups hereunder, in which event no payment shall be due by the City to PACT during such fiscal year. Should such notice be given, PACT shall have the option to submit supplemental information or proposals to the City for consideration at the City's budget hearings. Anything herein to the contrary notwithstanding, should the City give such notice with respect to a particular fiscal year, the same shall not terminate this Agreement, and, except as to the particular fiscal year with 2 '- J ~, , .... ::- " respect to which notice is given, PACT and the City shall continue to obligated to make the Facility available under this Agreement and to make payments as provided herein, subject to the ongoing right of the City to provide further notice or notices for any future fiscal year or years. In addition, the City will enter into a Guaranty Agreement, in a form reasonably acceptable to the City, with PACT and a lender or lenders pursuant to any financing, refinancing, renovation, modernization, or expansion, subject to the City's reasonable approval of any such transaction, such guaranty to be unconditional but limited to a total of$1,000,000, principal and interest. 5. Operation and Management of the Facility. Simultaneously herewith, PACT has entered into a Lease agreement with the City, governing the operation and management of the Facility, wherein PACT has the sole and absolute control over the Facility, and operation thereof, subject only to the terms and provisions of this Facility Use Agreement, and consistent with such Lease, PACT shall keep and maintain the Facility in good repair, provide adequate insurance, and otherwise fully comply with all of the terms and provisions of the said Lease. Incident to use of the Facility under this Facility Use Agreement: any group or individual using the Facility, or any part thereof, agrees to hold the City and PACT harmless for any claims resulting from their use of the Facility, and shall provide such insurance as the City or PACT might reasonably reqUIre. 6. Term of Agreement. The term of this Agreement shall commence upon the effective date of that said Lease Agreement entered into by and between the City and PACT for the properties described on Exhibit "A" attached hereto, having an initial term of thirty (30) years, with an option to extend for an additional thirty (30) years, provided, nevertheless, that the City may terminate this Agreement at any time upon thirty (30) days written notice to PACT if the City determines that the said Lease Agreement is in default, and the City has likewise given notice of default under said Lease Agreement to PACT, or the City gives notice of default under this said Facility Use Agreement, and the said default is not cured within sixty (60) days of said notice; or default by PACT under any financing arrangement, mortgages, or other liens or encumbrances on the property which are not paid or being paid in accordance with the terms, provisions or requirements thereof. 7. Notices. Any notice required or permitted to be given hereunder shall be deemed sufficient if given by communication in writing, delivered by courier, or facsimile transmission, with receipt confirmed, or sent by United States mail, postage prepaid and certified, and addressed to the entities and addresses set forth above, or to such other address in either case as such party may designate in writing. 8, Parties Bound: Amendment. The covenants and conditions herein contained shall apply to and bind the successors and assigns of the parties hereto. This agreement may be assigned by PACT to the lender or lenders involved in any loan or financing transaction wherein the City has approved the same as hereinabove provided, and entered into a guaranty agreement incident to said loan. This Agreement may not be otherwise assigned by PACT without the written approval of the City. 3 (:IJ ,. '~. .,.. ,.. IX) ~~a.- ~ 9. Time is of the Essence. Time is of the essence of this Agreement and of each and every covenant, term, condition and provision hereof. 10. Paragraph Captions. The captions appearing beside the paragraph number designations of this Agreement are for convenience only and are not a part hereof. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, but all of which together shall constitute one agreement. 12. Termination of Prior A eements. That certain Facility Availability Agreement dated ~~i~~, 1 , that certain Facility Use Agreement dated June 1, 1981, previously entered into between the City and PACT are terminated, canceled, null and void and of no further force and effect. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. 1T~~ to form: Pamela K. Akin ~i<Nmt City Attorney Attest: By: " ~Oh Witne s - Signature PACT, INe., a Florida non-profit corporation ~. . : A ~--:.'.' By: c..--' - - Name( / Title: Witness - Print Name H:\Data\Aty\HSCIP ACTlFacility.DOC 4 DESCRIPTION: b D D B EXHIBIT "Al\ ~L'IT~, 1li " '-'i~'\":I~ "l~rt".....\.,'.......~I._ '.~..':.:. . I,;, ..\ .~ . :;M)'" ~; \~., .1' 16;.1 ~+, ~ if, 'M: . . ",..~ .. RUTH ECKERD HALL' A PARCEL OF LAND LYING IN THE SOUTH 1/2 OF THE NORTH 1/2 OF SECTION 9. TOWNSHIP 29 SOUTH. RANGE 16 EAST. PINELLAS COUNTY. FLORIDA. AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 9. TOWNSHIP 29 SOUTH. RANGE 16 EAST. PINELLAS COUNTY. FLORIDA; THENCE SOUTH 89021 'OS" EAST. ALONG THE NORTH LINE OF DEL ORO GROVES. AS RECORDED IN PLAT BOOK 12. PAGE 2 OF THE PUBLIC RECORDS OF PINELLAS COUNTY. FLORIDA, A DISTANCE OF 477.16 FEET TO THE SOUTHWEST CORNER OF LOT 21, DEL ORO GROVES{ FIRST ADD IT 1 ON. AS RECORDED I N PLAT BOOK 69. PAGE 56 AND 57 OF THE PUBLI C " RECORDS OF PI NELLAS COUNTY. FLOR I DA; THENCE ALONG THE WEST AND NORTH LINES -~." OF SAID DEL ORO GROVES FIRST ADDITION THE FOLLOWING TEN (10) COURSES AND DISTANCES: I. NORTH 00016' IS" EAST, 519.23 FEET; 2. SOUTH 89019'45" EAST, 118.80 FEET; 3. NORTH 00029'45" WEST. 79.68 FEET; 4. SOUTH 89009' IS" EAST. 245.08 FEET; 5. NORTH 00005'45" EAST. 129.43 FEET; 6. SOUTH 89034' IS" EAST, 60.45 FEET; 7. NORTH 00010' 15" WEST. 301.98 FEET; 8. SOUTH 89017' 15" EAST. 498.69 FEET; 9. NORTH 81025'06" EAST. 479.63 FEET; 10. SOUTH 89049' 15" EAST, 251.76 FEET TO A POINT ON THE WEST LINE OF LOT 25. DEL ORO HEIGHTS. AS RECORDED IN PLAT BOOK 54. PAGE 12. OF THE PUBLIC RECORDS OF PINELLAS COUNTY. FLORIDA; THENCE ALONG THE WEST LINE OF SAID DEL ORO HEIGHTS SUBDIVISION. NORTH 00004'50" EAST A DISTANCE OF 221.17 FEET TO THE NORTH LINE OF THE SOUTH 1/2 OF THE NORTH 1/2 OF SAID SECTION 9; THENCE NORTH 89017'04" WEST ALONG SAID LINE, A DISTANCE OF 1514.66 FEET; THENCE LEAVING SAID LINE. SOUTH' 00007'43" WEST A DISTANCE OF 64.54 FEET: THENCE NORTH 89021 '08" WEST A DISTANCE OF 320.00 FEET; THENCE SOUTH 00007'43" WEST' A DISTANCE OF 50.00 FEET; THENCE NORTH 89021 '08" WEST A DISTANCE OF 290.00 FEET; THENCE SOUTH 00007'34" WEST A DISTANCE OF 117 FEET MORE OR LESS TO THE CENTER OF ALLIGATOR CREEK. SAID POINT TO BE KNOWN AS POINT "A" FOR CONVENIENCE; RETURN THENCE TO THE POINT OF BEGINNING: THENCE NORTH 89021 'OS" WEST ALONG THE NORTH LINE OF DEL ORO ESTATES, AS RECORDED IN PLAT BOOK 46, PAGE 29 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA. A DISTANCE OF 695.52 FEET: THENCE NORTH 00007'00" EAST A DISTANCE OF 610.82 FEET; THENCE NORTH 89018'29" WEST A DISTANCE OF 590.03 FEET TO THE EASTERLY RIGHT-OF-WAY LINE OF McMULLEN BOOTH ROAD. (S.R. 593), (A 100' R/W): THENCE NORTH 00007'00" EAST ALONG SAID R/W LINE. A DISTANCE OF 60.00 FEET TO THE SOUTHWEST CORNER OF KAPOK MANOR CONDOMINIUM VILLAGE ONE, AS RECORDED IN CONDOMINIUM PLAT BOOK 22. PAGES 48 THRU 51 INCLUSIVE, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA: THENCE SOUTH 89018'29" EAST ALONG THE SOUTH LINE OF SAID CONDOMINIUM AND THE SOUTH LINE OF ONE KAPOK TERRACE. A CONDOMINIUM PHASE VI. AS RECORDED IN CONDOMINIUM PLAT BOOK 102. PAGES 8 THRU 10. I NCLUS I VE. OF THE PUBL I C RECORDS OF P f NELLAS COUNTY FLOR I DA. A' ... DISTANCE OF 1135.68 FEET; THENCE NORTH 00007'00" EAST A DISTANCE OF 60.00 FEET: THENCE NORTH 66027'06" WEST ALONG THE NORTHERLY LINE OF THE UNRECORDED ONE KAPOK TERRACE. A CONDOMINIUM. PHASE VI I. A DISTANCE OF 267.83 FEET: THENCE NORTH 00007'34" EAST A DISTANCE OF 140 FEET MORE OR LESS TO THE CENTERLINE OF ALLIGATOR CREEK; THENCE EASTERLY AND NORTHERLY ALONG THE CENTERLINE OF ALLIGATOR CREEK AS IT WINDS AND TURNS TO THE AFOREMENTIONED POINT "A". .~:-, )}j U~ ,', ~. .',. ,1,'; SAID PARCEL CONTAINING 41 ACRES MORE OR LESS.