5178-92
ORDINANCE NO. 5178-92
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA AMENDING AN AGREEMENT WITH CHI CHI
RODRIGUEZ YOUTH FOUNDATION, INC. RATIFYING
SAID AGREEMENT AS AMENDED, AUTHORIZING THE
CITY TO INCUR CONTINGENT LIABILITIES OF AN
AMOUNT NOT TO EXCEED $1,000,000; APPROVING
EXECUTION OF THE AMENDMENT AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Clearwater, Florida (the "City") has
entered into an Agreement with the Chi Chi Rodriguez Youth
Foundation, Inc. (the "Foundation"), dated November 12, 1985, as
amended on March 5, 1987 (collectively, the "Agreement"), pursuant
to which the City leased certain undeveloped land to the Foundation
and the Foundation constructed thereon a public golf course and
driving range and related facilities; and
WHEREAS, in order to fulfill its obligations under the Agree-
ment the Foundation incurred indebtedness in an amount not to
exceed $2,000,000; and
WHEREAS, the City, by the 1987 Amendment to the Agreement,
consented to such indebtedness by the Foundation and agreed to
accept a right of first refusal to pay such indebtedness and take
over the facilities in the event of a default by the Foundation;
and
WHEREAS, the Foundation has requested the City to approve an
increase in the Foundation's indebtedness to an amount not to
exceed $2,500,000 and to guaranty not to exceed $1,000,000 of such
indebtedness in the event of a default by the Foundation; and
WHEREAS, the City has determined that the City's consent to
this request would serve a paramount public purpose by enabling the
Foundation to complete the Project as described in the Agreement
and to maximize the cash flows from the Project by lowering the
financing costs, making available more revenues for the operation,
maintenance and improvements to the Project and the Glen Oaks Golf
Center.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF CLEARWATER,
FLORIDA, as follows:
SECTION 1. The Second Amendment to Agreement with Chi Chi
Rodriguez Foundation, Inc. is hereby approved in substantially the
form attached hereto as Exhibit A.
SECTION 2. The Mayor or Vice Mayor and the Clerk or Deputy
Cleric are hereby authorized and directed to execute and deliver the
Amendment in. substantially the form attached hereto as Exhibit A
with such changes, insertions and omissions as may be approved by
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the Mayor or Vice Mayor and the Clerk or Deputy Clerk, the
execution thereof being conclusive evidence of such approval.
SECTION 3. The Mayor or Vice Mayor or Deputy Clerk or any
other appropriate officers of the City are hereby authorized and
directed to execute any and all certifications or other instruments
or documents required by this ordinance, the Amendment or any other
document required to carry out the purposes of this ordinance. The
Agreement and all action taken to date by the officers of the City
in furtherance of the Agreement and the Amendment is hereby
approved, confirmed and ratified.
SECTION 4. This ordinance shall take effect immediately upon
its enactment.
PASSED AND APPROVED by the City Commission of the City of
Clearwater, Florida, at a meeting held on the 30th day of March,
1992.
PASSED ON FIRST READING
February 6 1992
PASSED ON SECOND AND FINAL
READING AND ADOPTED AS AMENDED March 30, 1992
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Rita Garvey
Mayor-Commissioner
Attest:
Cr , ?
Cyn is E. Goudeau
Cit Clerk
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Approved as to form and correctness:
M. A. Ga brait , r.
City Attorney
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FIFTH AMENDMENT TO AGREEMENT WITH
CIII CHI RODRIGUEZ YOUTH FOUNDATION, INC.
THIS FIFTH AMENDMENT TO AGREEMENT (the "Amendment") is made and entered
into on this day of 1992, by and between the
City of Clearwater, Florida, a municipal corporation, hereafter referred to as
"City," and the Chi Chi Rodriguez Youth Foundation, Inc., a Florida nonprofit i
corporation, whose address is Post Office Box 1521, Largo, Florida,.hereafter
referred to as "Foundation," amending the Agreement between the parties dated
November 12, 1955, as amended on March 5, 1987 (the "Agreement").
In consideration of the premises and of the faithful performance by each
of the parties of the covenants and agreements between each other made, it is
:mutually agreed that the Agreement is hereby amended as follows:
1. Paragraph 11 is amended by deleting the language added in that
certain Amendment to Agreement (the "First Amendment") dated March 5, 19137, and
replacing it with the underlined language as set forth below:
11. The Foundation shall not assign this lease or any of its
rights tinder this agreement, sublease any part of the leased
premises except as authorized above, or mortgage, transfer,
hypothecate, pledge or dispose of the leased property in any form or
manner whatsoever. This paragraph shall not be deemed to prohibit
a construction loan or loans to the Foundation secured by the
leasehold interest of the Foundation arising under this agreement,
as, amended, in a principal amount not to exceed $2,500,000.00
??, 00, 00-.Oe in the aggregate, plus interest, costs fees, and any
sums advanced to protect the collateral, add4-?4&na4---funds-o€ -the-Foundatia".n--an-a}?E$unt--net---]ens-tNae
Q ; 9Q()- i n--ea?l? ;---# age?he =--w i tl?--a-w4 n4muw o f--ao----add4-t iena4-
? X88 ;-080-?-9O--?t?--p-l-ed ge ?-w1?i e1 r--a r-e--u n rest-r-?c-i:ed-a r--}?5?-r-i coed--te
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P4edges-?; which loan proceeds and-4nat444-ng-Amd& are to be used for
improvements, and equipment related to development, upkeeg _and
maintenance of the property Ue--de-94gR--and--esn-r,.t=upon of a-ge
?eetr"e-and-c ubheu-seer- pamper-•ty, and repay ment to the City of
$27,264 previously advanced to the Foundation,. nor shall this
paragraph be deemed to prohibit an assignment by a secured creditor
of the Foundation of its interests in the leasehold.
2. Paragraph 35 is amended by deleting the language contained in
Paragraph 2 of the First Amendment (adding Paragraph 35) and replacing it with
the underlined language as set forth below:
35. In the event of a default by the Foundation upon any
loan secured by the leasehold interest of the Foundation arising
under this Agreement, such default shall also constitute a default
under this agreement.
(a) In the event of such a default, the City shall have the
right to reoccupy the land and improvements thereto immediately upon
notice to the Foundation, and without the necessity of formal
eviction proceedings. The City hereby guarantees that 'in 4* such
event the City shall pay the secured creditor of the Foundation or
the successors or assigns of the secured creditor (herein, the
"Lender") the outstanding balance of the loan, in a principal amount
not to exceed $1,000,000 ?2;908T88O- in the aggregate, including
interest, costs, fees, and any sums acivanceo to protect the
collateral (unless the CiLY agrees Lo pay a greater amount). The
City covenants and agrees to apiwopr iate_in i ts_ annual backlet, by
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amendment if required- and to a to the Lender when due under this
Agreement as promptly as money becomes available, amounts of no-ad
valorem revenues of the City or other legally available funds
sufficient to satisfy the -loan repayment as provided tinder this
Agreement. Such covenant and agreement on the part of the City to
budget and appropriate stich amounts of non-ad valorem revenues or
other legally available funds shall- be cumulative, and shall
continue until such non-ad valorem revenues or other legally
available funds in amounts sufficient: to ,,take all required loan
repayments, shall have been budgeted, appropriated and actual! aid
to the lender. As to any remaining outstanding balance of the loan
in excess of $1,000,000, but not to exceed $2,500,000, plus
interest costs fees and an sums advanced to protect collateral
the City shall have the option-of paying the lender the full amount
owned, in exchange for which the lender shall release its leasehold
mortgage and the security ' interest in the related inventory,
furnishings, fixtures and eflOpment related to the project. In the
event the City does not exercise said option within thirty 30) days
of written notice front the lender the Lender shall have the rights
described in Subparagraph b below. e!, ever-e-i se- t??a? rya i v?
4eser- -bed-*4ubpar-agr-apli--4?,- r-ov4.de?liewev?r; t#ia --tie-- eceed?
o? -aii?uc#i liar;-aim-!galas-; tec3e?ier--w-i-t#i-liFa-t-e#>a•nc?---futid?-e•f-t#ie
eu ndat? art-i-ri-a i?--aii?ot# n?-na t?e$?--k#i a ri??00 ; t}O(?0(3-c a?li-i>-l u's--aaa•
-aiiiUUril:s-col-leeted-lit}on- t fie- PI erlow;--•as--det;c:r=-ilied----in--Pa Y--aUr-aph--l-l-
al?ove; iii-iii---amount iiu? lest-thafi---?5{}{},UUO-x(}43-; -shal?i---!lave--l?eerr
e-xpenclecl-fat=or---ir-i=evocal3-l?•-c'oiiiiiial.-#:id--far t??iyuieri'E--a'? the-cos-t?-r?lr
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de-O-qnand+-eenssO-en--of a- gea €---eeor-se--and -e-l u bheu-se-ef}-Oe-rea4-
-pr-Goer-ty- ]-ea-sed-i~o the---Fatfnda-4GF+-under- tif s-ag"ement, or afe
-ate aWe-a s nenc-umbered---Ea-s#f---fopmeat-te -the--Lendevt --an4
nevi-led, f lfer-,-that the---eensrt-ruc-t-i$n--e h"o4 f reeupse--and
eO-ubheu-,e ha44-ha-ye--been-Gempae-ted-by-A-he-Founda-t4e+f-er-by--the
L-ender-prior e-suc-h-oayftten"y-the-G4ty.
Any -&ue4 payment by the City shall be from funds available to the
City from any source or financing method not requiring the exercise
of the ad valorem taxing powers of the City. This paragraph shall
not be deemed a pledge of all legally -available non-ad valorem
revenues of the City and no secured creditor or other person may
compel the City to exercise the ad valorem taxing power of the City
pursuant to this paragraph. Notwithstanding any provision of this
agreement to the contrary, this agreement and the obligations of the
City-hereunder shall not be construed as a limitation on the ability
of the City to pledge or covenant to pledge said revenues for other
legally permissible purposes. Notwithstanding an rovisions hereof
to the contrary, the City shall not be obligated to exercise its ad
valorem taxing power to maintain or continue any of the. activities
- of the City-including those activities which generate user service
charges, regulatory fees or any non-ad valorem revenues. This
paragraph shall be deemed of authorize a lien as described herein
upon the leasehold interest of the Foundation arising under this
agreement, together with inventory, furnishings. fixtures,--and
o gg t-, but not upon the real property
equipment related to the _})r_
leased to the Foundation by this agreeuier)t.
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(b) If the City does not exercise its -option to a the
Lender in full within thirty 30 days of notice as set forth in
subparagraph a above the Lender shall be permitted b the-City to
in the alter-natiye, the w-t-he-kender to assume
the rights and obligations of the Foundation under this agreement,
and to -eaiistr-uet-and operate the golf course, clubhouse, and related
improvements for the unexpired term of this agreement. In that
event, the Lender:
a-. Shall eamp4y---w4-tN-- I}at--p r-t of RaFagr-a
-
aan?eu=a eg the-deve$pmen a nd?e-c-t i teen
hole PGA _marl u l a -I.A a fl, S i a go-if ?alar-se-on Che--w'e'ns t O- Ie-eTMS144-e*
8eeth-- ea, y;?-and-the-deve-lep?m+?Ant ion a aif a-k€
een?T1'te o?V-the ea si-de of 1i 99th Rea LT, Vut-no't-neces F41y
aa=' pGA-tao m44y-golf -r=enter-, -et-he,r4-se-F-0 making pi-evisien&
ef?a ag a?#3- --sl?aa -he-- nappy-mal e--te--tk?e--Le der-1
i 44. Shall not be obligated to comply with the terms of
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Paragraphs 9, 14. 20, 22L 26, 28,_ 30 or 34 of this agreement;
ii 444. Shall not be required to operate the golf course or
clubhouse as an educational and rehabilitative facility as provi4 d
in Paragraphs 3 and. 14 of this agreement;
iii 4*. Shall not be subject to the financial records review
provisions of Paragraph 27 of this agreement; and
iv Shall riot- be entitled to the renLal or, other revenues
from Lhe family golf course ont i 1 Elie loan has been repLi,id. which
lie-13a ya ba e-cl-i-rec I:l y--tt?--t:l?e-Gi-i:-y
(c) In the event that the Lender should obtain title to the
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leasehold interest of the Foundation arising under this agreement, either
by deed in lieu of foreclosure or as the successful bidder at a clerk's
sale pursuant to a judgment of foreclosure, or any other way permitted by
law (including, but not Iimited' to, _an__•assignment of lease by the
Foundation to the Lender), then the City shall have the right of first
refusal to purchase the Lender's title to said leasehold interest upon the
term, and conditions contained in any bonafide contract to sell said
leasehold interest to a third party. In such event, the City shall have
thirty (30) days after receipt of notice of the proposed sale within which
to notify the Lender of its desire to purchase the leasehold interest on
the same terms and conditions as the proposed sale. In the event that the
City does not notify the Lender within said thirty--day period, the Len der
may proceed to consummate the proposed sale. At any time during which the
Lender should own said leasehold interest, except during the
aforementioned thirty-day notice period, the City may at its opt ion
purchase the Lender's leasehold interest by paying to the Lender all
unpaid principal plus accrued interest, costs, fees and sums expended for
the preservation and protection of the collateral. in the event that the
Lender or any third party purchaser at judicial sale should become the
owner of said leasehold interest, then the provisions of Subparagraph (b)
above shall apply to said owner or its successors and assigns.
(d) In the event of a default by the Lender which shall rem ain
uncured after thirty (30) days written notice of such default from the
City to the Lender, the leasehold interest shall terminate and title to
the property shall be free and clear of any and all claims or liens by the
Lender; provided however, MaL_tile period within which the Lender is
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re a fired to cure a default shall be extended in the event that the default
cannot be cured within thirty (30) days and the Lender is actively-and
reasonably making efforts to cure the default.
3. All of the terms and conditions of the Agreement which are not
expressly amended herein shall continue in full force and effect, and are
incorporated herein by reference as if set forth in full.
4. The Foundation hereby agrees to pay all costs, fees and expenses of
the City and*its counsel incurred in connection with the preparation and adoption
of this Amendment.
5. The City and the Foundation agree that the requirements of Paragraph
12 of the Agreement have been fully satisfied.
6. In the event that the City furnishes the Foundation written notice
of default, the City simultaneously shall provide a copy of said notice to the
Lender.
7. In the event that the City terminates the Lease for the reasons
specified in Paragraph 32 of the Agreement, the City shall pay to the Leader all
unpaid principal, accrued interest, costs, fees, and additional sums expended for
the preservation and protection of the Lender's collateral.
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IN WITNESS WHEREOF, the undersigned parties have set their hands and seals
the,day land year first above written.
Countersigned. CITY DE CLEARWATER, FLORIDA
By:
Rita Garvey Michael J. Wright
Mayor-Commissioner City Manager
Approved as to form and correctness: Attest:
1
M. A. Ga rait , Jr. Cynthia E. Gou eau
City Attorney City Clerk
ATTEST: CHI CHI RODRIGUEZ YOUTH
FOUNDATION, INC.
By:
Secretary President
Witnesses: By:
Vice President
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