FACILITY AVAILABILITY AGREEMENT
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FACILITY AVAILABILITY AGREEMENT
THIS FACILITY AVAILABILITY AGREEMENT made this
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day of ~~cernDc., 197~, between the CITY OF CLEARWATER,
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FLORIDA,
a Florida municipal corporation ("CITY"). and PACT, INC., a
Florida nonprofit corporation ("PACT").
WIT N E SSE T H:
WHEREAS, the CITY has leased to PACT certain real property
described on Exhibit A attached hereto; and
WHEREAS,
PACT
has
agreed
to
undertake
to
obtain
construction of a performing arts hall (the "facilitv") on such
real property, and
WHEREAS, PACT has agreed to operate the faci 1 i ty after
construction thereof; and
WHEREAS, PACT and the CITY wish to define certain of their
respective rights and obligations regarding operation and use
of the facility.
NCM, THEREFORE, in consideration of the mutual promises
herein contained, the CITY and PACT agree as follows:
1. RECITALS
The foregoing recitals are true and correct and are incor-
porated herein by reference.
2. AVAILABILITY FOR USE BY COMMUNITY GROUPS
In connection with operation of the facility, PACT shall
make available to community groups designated by the CITY,
dates for usage of the facility by community groups for
product ion by such groups of a minimum of two hundred events
annually.
The fee to be charged by PACT to such communi ty
groups for each event shall be annually established by the CITY
in consultation with PACT and shall be comparable to fees
charged to similar groups by similar facilities located
elsewhere in Florida.
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3. PAYMENT FOR AVAILABILITY
(a) As consideration for the agreement by PACT to make
the facility available to community groups as described in the
preceding paragraph, the CITY shall pay to PACT on the first
day of the month during which PACT first opens the facility for
operation and, makes dates available for usage by community
groups, and monthly thereafter, the sum of Twenty Thousand
Eight Hundred and Thirty Three Dollars and Thirty Three Cents
($20,833.33) .
(b) In the event the CITY, during the first ten (10)
years of the Ground Lease entered into between the CITY and
PACT of even date herewi th, elects to cancel any automatic
extension of such lease, then, in addition to the pay"1I1ent
described above, the CITY shall pay to PACT within ten (10)
days after such election, one lump sum cash payment in an
amount equal to the total amount paid by purchasers of limi ted
partnership interests, and by the general partner, in the owner
of the facili ty, plus eight percent (8%) simple interest
computed from the date of investment by each such investor.
PACT shall, within ten (10) days after receipt of such amount,
pay such amount to
4. MANAGEMENT CONTROL OF FACILITY
PACT shall have sole and absolute control over management
and operation of the facility, without interference by the
CITY, provided, however, that the CITY may, upon thirty (30)
days' written notice to PACT, terminate this Agreement. As a
condition of such termination, however, the CITY agrees to
assume all of the obligations of PACT under its Management
Agreement with
5. REBATE OF PORTION OF OPERATING SURPLUS
On or before May I of each calendar year during the term
hereof, PACT shall furnish to the CITY an audited statement of
income and expenses prepared by certified public accountants
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selected by PACT, which statement shall identify an operating
surplus, if any, from the operations of the facility for the
preceding calendar year. As used herein, the term "operating
surplus" shall have the same definition as such term has under
the Management Agreement incidental hereto. On or before June
1 of each calendar year, PACT shall remit to the CITY an amount
equal to forty percent (40%) of any such operating surplus.
6 . CURE OF DEF AU LTS
There shall be no defaul t hereunder on the part of PACT
unless the CITY shall have given PACT written notice of any
such default. PACT shall have thirty (30) days after such
notice within which to cure any such default hereunder. In the
event PACT fails to cure any such default, the CITY agrees to
permit the opportunity to cure
any such default within a period of ninety (90) days aiter
written notice by the CITY to
of the existence of such uncured default. In the event
is success ful in curing any such defaul t,
then this Agreement shall remain in full force and effect in
the same manner as if such defaul t had not occurred and
shall as a consequence of curing such
default be automatically substituted in the place of PACT
hereunder and shall succeed to all of the rights and
obligations of PACT hereunder.
7. TERM OF AGREEMENT
The term of this Agreement shall be the same term as the
term provided for under the Ground Lease of even date herewith
between the CITY, as lessor and PACT, as lessee.
8. NOTICES
All notices, demands, or other writings in this Agreement
provided to be given or made or sent, or which may be g~ven or
made or sent, by either party hereto to the other, shall be
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deemed to have been fully gIven or made or sent when made in
writing and deposited in the United States mail, registered and
postage prepaid, and addressed as follows:
TO CITY:
City of Clearwater
P. O. Box 4748
Clearwater, Florida 33518
TO PACT:
PACT, Inc.
P. O. Box
Clearwater, Florida 33517
The address to which any notice, demand, or other writing
may be given or made or sent to any party as above provided may
be changed by written notice given by such party as above
provided.
9. PARTIES BOUND; AMENDMENT
The covenants and conditions herein contained shall apply
to and bind ~he successors and assigns of the parties hereto.
This Agreement may not be amended or assigned by PACT other
than by a written instrument executed by the CITY and PACT.
1 0 . TIME OF THE ESSENCE
Time is of the essence of this Agreement, and of each and
every covenant, term, condition, and provision hereof.
11. PARAGRAPH CAPTIONS
The
captions
appearing beside
the paragraph number
designations of this Agreement are for convenience only and are
not a part hereof and do not in any way limit or amplify the
terms and provisions hereof.
L2. CONDITIONS SUBSEQUENT
The following are conditions subsequent to the obligation
of the CITY and PACT hereunder:
(a) PACT, or its designee, shall have received bona fide
financial commitments sufJicient to construct the facility in
an acceptable manner.
Such commitments may be in the Iorm of
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c ommi tmen t s
for
construction
and/or
permanent
secured
financing,
subscriptions
for
investments,
P I edges
for
contributions,
or
such
other
commitments
as are deemed
acceptable by CITY's City Manager.
(b) PACT, or its designee, shall have constructed -the
facility in accordance with paragraph six of the Sublease.
'If PACT, or its designee, has not received, prior to
January 1, 1980, bona fide financi al commi tments to construct
the facility and awarded to a general contractor licensed in
Florida a contract for the construction of the facility, this
agreement may be terminated by the CITY, at its option, by
notice to PACT, without further liability of either party to
the other.
13 . 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.
14. PAYMENT FR~ NON-AD VALOREM FUNDS
The CITY's obligations under this Agreement, and any
liabi'Iity incurred by the CITY with respect to any breach of
any of such obligations, shall not constitute a general
indebtedness
of
the
CITY
wi thin
the
meaning
of
any
constitutional. statutory or charter provisions or limitations,
-nor shall PACT have the right to require or compel the exercise
of the ad valorem taxing power of the CITY for the payments due
hereunder.
The CITY shall be obligated to make payments
hereunder solely from funds of the CITY derived from sources
other than ad valorem taxation and legally available for such
payments (the "Non-Ad Valorem Funds"), subject, however, to all
then existing pledges and liens on all or part of such Non-Ad
Valorem Funds, whether such pledges and liens are now in
existence or hereafter created or imposed.
,
In preparing,
approving and adopting any budget or providing for the
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. expenditure of its funds, the CITY agrees that it will appropriate, allot
and approve from such Non-Ad Valorem Funds available for such purpose
sufficient funds to discharge its obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
at Clearwater, Florida, on the day and year first above written.
WITNESSES:
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PACT, INC., a Florida nonprofit
corpoU./
By /ZJ~
Preside
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Co
Attest: .,",c'
1) ';'U. . F.i!..;.~ _ J
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City Clerk
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