CONSTRUCTION TRUST FUND AGREEMENT
,e'
..
.
" ...~
.
.
CONS'J'Ruc'rION 'I'EUS']' FUND AGF\EEI"lEN'l'
WHEREAS, the CITY OF.CLEARWATER FLORIDA, (herein
called "Lessorll) has entered into a Lease Agreement dated
S'e~~~~l'n-l' 2(j 10~6
"-- l)VC,:;Ll..J,--, '-" ;t'J,
1;71 t h 'TEE
PHILJ\DELPHIJ\ NA'I'IONAL LEAG liE
(' T PP
I -,_.J ,-I ~......' ,
INC. (herein called
!!Lessee!!) proviclirw for the construction of
-' .
certain Improvements described therejB and the leasing of saDe
to Lessee for its minor ,league training program, a copy of
said Lease Agreement being attached hereto and made part
hereof as Exhibit A; and
*
HHEREAS, the Lessor in said Lease Agreement has agreed
to deposit funds not exceeding $250,000 in a Construct::Lon
'Trust Fund to be known as the "Constl'uction Trust Fund" so as to
insure the availability of such funds for the payment of the cost
of constructing the Improvements described in the Lease Agreement,
whi ell the Lessor has agreed to construct, or cause to be construc--
ted and/or installed on the Premises described in the Lease Agree-
ment; and
WHEREAS, First National Bank of Clearwater, a bank-
ing corporation organized and existing under the laws of the
United ~tates of America, located at Clearwater, Florida, has
agreed to act as Trustee of said Construction Trust Fund;
NmI, THEHEFORE, I'l' IS AGREED, on the 3"l..~ day of 7lJ.,t~l'--t~
1966, between Lessor, Lessee and said First National Bank of
Clearwater, a banking corporation, (herein ca11ed ll'I'rustee l!), that:
Section 1. There is hereby created said Construction
Trust Fund which shall be held as Trustee by said First National
Bank of Clearwater~ a banking corporation, with trust powers, situated
*as amended November ~ , 1966
" /'.' :::;
"
eT
.
! *
~ ~..
"
l.
)
at Clearwater, Florida, which is hereby designated and appointed
as Trustee for such Construction Trust Fund and which shall
consist of the sum of $250,000 to be ~eposited therein by the
Lessee immediately prior to the award by Le~sor of contracts for
the construction of the Improvements.
Section 2. The moneys in said Construction Trust Fund
shall be held by the Trustee in trust a~d applied only to the
payment of the cost of the construction of the Improvements in
the manner provided in said Lease Agreement, which by reference
is made a part hereof the same as if included verbatim herein.
No funds shall be disbursed by Trustee until the conditions in
paragraphs 4(a) and 4(b) of the Lease Agreement have been satis-
fied.
Section 3. Payments to the persons or person, or firm
or corporations entitled thereto, or to the Lessor as provided
hereafter, shall be made from said Construction Trust Fund by
the Trustee upon the order of the Lessor, but only upon the follow-
ing conditiOns and upon receipt of a requisition of.the Lessor
for such payment, duly executed on behalf of the Lessor by the
City Manager and the City Treasurer, or such other officers as
the Lessor shall by resolution, (a certified copy of which shall
be furnished the Trustee) duly appoint, supported by an invoice
certified by the City Manager as proper for payment. Such reaui-
sition shall state:
(1) the amount requested; .(2) the obligation
for or on account of which the requisition is made, showing separ-
ately the total obligations, the amount already paid, if any, and
the balance remaining to be paid; (3) the person to whom the
payment shall be made. Such requisition shall certify:
(1) that
the item for which requisition is made has not been paid; (2) that
there are no vendors', mechanics' or other liens or rights to
liens or conditional sales contracts on the property in respect
to which such payment is to be made.
-2-
.'
.
In addition to the above requirements, before making
'any payment from said Construction Trust Fund to contractors,
builders or materialmen, on account of the construction "of the
Improvements, the Trustee shall receive a vlritten opinion of
counsel (who may be counsel for Lessor), to the effect that no
part of the Improvements is located or is to be located on lands
other than lands good and marketable title to which is owned by
the Lessor in fee simple (except for water, gas and drainage
lines which may be located on rights of way and easements serving
the property) or that the title which the Lessor has acquired
is sufficient for the purposes of such Improvements and that
such title cannot be divested so long as the Lease Agreement is
in full force and effect.
In addition to the above requirements, no payment shall
be made to any contractors or builders, unless Lessor's Attorney
shall certify that such contractors or builders shall have pre-
viously delivered to the Lessor a bond or bonds executed by a
qualified surety authorized to do business in the State of Florida,
approved by Lessor in an amount at least equal to the amount of
~uch contracts, conditional for the due and faithful performance
of the work, and providing in addition to all other conditions,
that if the contractor or his, or its subcontractor or subcontractors,
fail to duly pay for any labor, materials, team hire, sustenance,
provisions, provender or other supplies used or consumed by such
contractor, his or its subcontractor or subcontractors, in perfor-
mance of the work contracted to be done, the surety will pay the
same, in accordance with Florida law and that the surety shall
indemnify and save harmless the Lessor to the extent of any and
all payments in connection with carrying out said contract which
-3-
*
.
.
..
the Lessor may be required to make, or Lessor's Attorney sh~ll
certify that, in lieu of furnishing as surety such bond or bonds,
such contractors or builders have deposited with Lessor, direct
obligations of the United States of America, in an amount equal
to the amounts of such contracts, with the bond or bonds of
such contractor or builder, as security for the performance of
such contracts.
In addition to the above requirements, no payments
shall be made to any contractors or builders in excess of ninety
per cent (90%) of the amount of such contracts unless the Trustee
shall also receive the certificate of Lessor's City Manager and
Lessee's Architect, Alexander Ewing & Associates, that such
contracts have been fully and completely performed by such con-
tractors or builders to the satisfaction of Lessor's City Manager
and Lessee's Architect~ If any dispute should arise between said
City Manager and said Architect with respect to the performance
of such contracts, such dispute shall be submitted to Lessor's
City Engineer whose decision shall be final and biilding on all
parties to this Agreement.
Section 4. All original requisitions, certificates and
opinions received by the Trustee as required herein, and evidence
of payment, shall be retained in possession of the Trustee,
subject at all reasonable times to the inspection of Lessor and
Lessee and the agents and representatives thereof.
Section 5. When the construction of the Improvements
provided for in said Lease Agreement has been fully completed,
and the Trustee shall have been furnished with all of the certi-
ficates of performance referred to in Section 3 hereof, any balance
in said Construction Trust Fund not reserved for the payment of any
remaining part of the cost of the construction of the Improve0ents,
as defined in the Lease Agreement, shall be refunded to Lessee.
-4-
*
.
-
Section 6.
, .", -,~
lJ.'he rrrustee accepts and agrees to exe'cute
the trust hereby created, but only upon the terms set forth
in this Agr€ement to all of which parties hereto agree.
Section 7. The Trustee may execute any of the trust
powers hereof and perform the duties required by it, by or
through attorneys, agents, or employees, and shall be entitled
to advice of counsel concerning all matters of trust hereof and
its duties hereunder.
Section 8. The Trustee shall, upon the written request
of the Lessee, temporarily invest or reinvest any moneys in the
Construction Trust Fund in direct obligations of the United States
of America, maturing not later than ninety-one (91) days after
the date of purchase thereof. Said Trustee is hereby authorized
to liquidate any of such investments or reinvestments whenever
necessary to pay requisitions upon said Construction Trust Fund
as provided herein. All interest or income earned upon any of
said investments or reinvestments shall be credited to and become
a part of said Construction Fund.
Section 9. The Truste~ shall be protected and shall
incur no liability in acting or proceeding in good faith upon
any resolution, notice, telegram, request, consent, statement,
affidavit, voucher, bond or other paper or document which it
shall in good faith believe to be genuine and to have been passed
or signed by the proper officers, agents or employees of the
Lessor and Lessee, or to have been prepared and furnished pursuant
to any of the provisions of this Agreement and the Trustee shall
be under no duty to make any investigation or inquiry as to any
statements contained or matters referred to in any such instrument,
but may accept and rely upon the same as conclusive evidence of
-5 -
*
-
-
the truth and accuracy of such statement. Upon the Trustee
making the payments to be made by it from said Construction
Trust Fund in accordance with the provisions hereof, such payments
shall, so far as concerns the Trustee, be deemed to be legal and
proper payments; and the Trustee shall be relieved of all responsi-
bility with respect thereto and shall be liable only for proofs
of payment as provided herein. The Trustee shall not be respons~
ible for the recitals in this Agreement, nor for the validity of
this Agreement. The Trustee may accept a resolution of the City
Commission, when certified by the City Clerk under'the seal of
the Lessor to have been duly adopted. The Trustee shall not be
under any liability for anything arising out of this Agreement
except for its own negligence, lack of good faith, or wilful
misconduct.
Section 10. The Trustee may engage in or be interested
in any financial or other transaction with the Lessor or Lessee
as freely as if it were not Trustee hereunder.
Section 11. The Trustee rllay construe any of the pro-
visions of this Agreement insofar as the same may appear to be
ambiguous or inconsistent with any other provision hereof; and
any construction of any provisions thereof by the Trustee in good
faith, shall be binding upon the parties hereto.
.
Section 12. The Trustee may resign and be discharged
of the trust created by this Agreement, by executing an instrument
in writing, resigning such trust, specifying the date when such
resignation shall take effect, and filing the same with the City
Clerk of the Lessor not less than sixty (60) days before the date
specified in such instrument when such resignation shall take effect.
Such resignation shall take effect on the day specified in such
-6-
.
e
instrument unless previously a successor Trustee shall be appointed
as hereinafter provided, in which event such resignation shall
take effect immediately upon he appointment of such successor
Trustee.
Section 13. Any Trustee hereunder may be removed at
any time by an instrument in writing, appointing a successor to
the Trustee so removed, filed with the Trustee at least sixty
(60) days before the removal is to become effectiv~, signed by
the City Manager and City Treasurer of Lessor and by the President
of Lessee.
Section 14. In case at any time the Trustee, or any
Trustee hereinafter appointed, shall resign, or shall be removed,
or be dissolved or if its property or affairs shall be taken
under the control of any State or Federal Court or administrative
body because of insolvency or bankruptcy, or for any other reason,
a v~cancy shall forthwith and ipso facto exist in the office of
Trustee and a successor may be appointed by Lessor and Lessee.
Section 15. In case at any time the Trustee shall
resign and no appointment of a successor Trustee shall be made
pursuant to the foregoing provisions of this Agreement prior to
the date specified in the notice of resignation as the date when
such resignation shall take effect, the retiring Trustee may forth-
with apply to a court of competent jurisdiction for the appoint-
ment of a successor Trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and .prescribed, appoint
a successor Trustee.
. Section 16. Any successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Lessor and Lessee
an instrument accepting such appointment hereunder, and thereupon
such successor Trustee, without any further act, deed or conveyance,
-7-
.
e
shall become duly vested with all of the estates, property,
rights, powers, trusts, duties and obligations of its prede-
cessors in the trust hereunder, with like effect as if originally
named Trustee herein. Upon request of such Trustee, the Trustee
ceasing to act the Lessor and Lessee shall execute and deliver
an instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts hereunder of the
Trustee so ceasing to act; and the Trustee so ceasing to act shall
pay over to the successor Trustee all moneys at the time held by
it hereunder.
Section 17. Any corporation into which any Trustee
hereunder may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to
r
which any Trustee hereunder shall be a party, shall be the
successor Trustee under this Agreement without the execution or
filing of any paper or further act on the part of the parties
hereto, anything herein to the contrary notwithstanding.
Section 18. The Trustee shall receive only such compen-
sat ion from the Lessee for its services as is specified in the
fee schedule contained in its letter of October 18, 1966 which
is attached hereto and made a part hereof by reference.
IN WITNESS WHEREOF, the City of Clearwater, Florida has
~aused its corporate seal to be hereto affixed and attested by
its City Clerk, and these presents to be signed by its rJIayor-
Commi ssioner, City r'lanager and City Attorney, and The Philadelphia
National League Club, Inc. and said First ~ational Bank of Clear-
water, have each caused their corporate seal to be hereto
affixed and attested and these presents to be signed by their
duly authorized officers the day and year first above written.
-8--
.
-
. ~ c ~
CITY OF CLEARWATER, FLORIDA
(SEAL) ~
___1tttest,: City If1anager
COUN1'ERSIGNED:
lJ ~~
' }-'
_ A99r~6veQ" as to form and '. - . . . -
'coc;y:re-S.t;he ss ~ r-1~or-Commi ssioner
0'--11. I ~ ~ THE PHILADELPHIA NA'PIONAL LEAGUE
. T City Attorn y/ CLUB, INC.
~nJ~'
BY~ p;'::ident .~
~
Att.est:
~..
~
President
By~r#$
rust, Officer' . .
i
iii
-
~
!!!
i
I
.
.
.
.
I
I
I
I
i
1
I
I
.1
I
.kt te:Ot-:
.--
/
t#1~.'. 0 .~~.>/ .EP-..~'.},- ;/ &A41-
.{,- '. >1. .
~ 1.1.
" - ~ - ,',
(~~' )
.~:)E,AL
FIRST NATIONAL BANK OF CLEARWATER
-9-
.
-
,0 '
" _' --fF--Io:'";-~o;""""
" --iQ~~~!;:~;;:~1 If]" f::::,':~;:i t:::::::::~W(li;
.1) 1"",;::+.:::.....1 ~I., "",,,,'-:,,...,...,!,..,,,
.~'; ;'~'o';'!-; ,.;t=li~~!3,~:=)t; ..=~~~;~~~~~~~&
"l::s:\':';"'\ q ;,.c, I...::, ,;" J).l " " , ,ii"l' i.>-: I
. "":'-:-'..;.~~:/:...,.,,::'--:::::'''''-':'~------->''-~ _....-...H...!....~--<._ _,.... ~! ......1-. _
Uhe
FIRST NATIONAL Bp1NK
, TRUST Dl:h\RTME1\T
f. lClFRNAN SCHOONMAKER
Vice Presidcrlt and Senior Trust OHicer
, Jl. TAMES EATON
. kc:;sistant Vice President end Trust Officer
ICENNET:l C. CROSS, JR. ....... Trust OWcer
ERVIN E, HAYGOOD ,....,...... Trust Ollicer
C. ROBERT MODYS ....,..".., Trust Officer
TA Y }l. TIFFIN ............,...... Trust Ollicer
THOMAS R. BRUCKMAN ., Assl. Trust Officer
JEANNE W. ESTES ........ Assistant Cashier
l' CLEARWATER
400 CLEVELAND STREET
CLEARWATER, FLORIDA
October 18, 1966
Mr. George Harrison,
Executive Vice President
Philadelphia National League Club
Connie Mack Stadium
Philadelphia, Pennsylvania 19132
r.
Dear Mr. Harrison:
I was pleased to have the opportunity. to discuss with you yesterday the
services of the Trust Department of this Bank in connection w~t? a
Construction Trust Fund for the disbursement of certain funds with
regard to new facilities being constructed here in Clearwater.
You may consider this letter as our commitment to the following fee
arrangements for the handling of this account:
An initiation or set:"up charge of $100. 00, payable at the
time we bill you for the regular quarterly fee, approximately
three nlonths after the cornmencement of the account.
A charge of one tent:' of 1% on all disbursenlent~ in connection
with the purposes of the ,Construction Trust Fund. This would
specifically exclude disbursements in connection with the
temporary employment of the funds in the account pending need.
We would contemplate billing the appropriate parties on a quarterly
basis, commencing approximately three nlonths after the inception of
the account. As noted above, on the first quarterly billing, we would
include also the inception fee, which we believe would be sufficient to
compensate 'us for the services necessary in setting up,the a~count on
our books al1d making the initial investments.
We believe that given a reasonable'schedule of anticipated disbursements,
we would be in position to advantageously invest the funds in short term
.
e
THE }'lIlS'l' NATIONAL BANE OF CLEARWATER
Mr. George Harrison
October 18, 1966
Page Two
Treasury Obligations, primarily Treasury Bills, thus affording some
additional income to the Trust Fund.
Upon receipt of draft of the proposed Trust Agreement from your
attorney, we will review it and if any changes appear necessary,
will contact him promptly.
we
We look forward to having this opportunity to be of service to you and
your organization and also in a very real way, to the City of ,Clearwater.
Sincerely yours,
~~Az/'~S
C, Rqbcrt Mod~- /
Trust Officer
CRM/bmr