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FACILITY USE AGREEMENT (DRAWINGS IN FILE) -''-'---. -"--,,'-,--~--'--_.._--- '!, ~-"'.' ~. ..'.! .'.~' . --. 1 1 . FACILITY USE AGREEMENT ,it THIS FACILITY USE AGREEMENT, dated this I day of , 1981, between the City of Clearwater, Florida, a m ~c~pal corporation duly organized and existing under the law of the State of Florida (herein called "City"), and PACT, Inc., a not-for-profit corporation duly organized and existing under the laws of the State of Florida (herein called .PACT"), WIT N E SSE T H , WHEREAS, PACT was incorporated in 1978 for the sole pur- pose of acquiring, constructing, operating and maintaining a per- forming.arts center (the "Facility") in the City; and WHEREAS, PACT will operate and maintain the Facility for the benefit of the people of the City and its environs as an integral part of the City's public recreation program; and WHEREAS, the City, as a 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's service area and to facilitate its use by these community gr~ups by a subsidy from public funds so that such groups will be able to afford its use at rates due PACT which are comparable to those charged similar groups elsewhere in Florida; and ..'1 ('... :."! t" ,,' i' cJ.." .' ,\", ,,".' I' " ., " \ !' ',,' ~ .;/ " I.' 1\ I, -1- 00 ~(,)~ 7 Cd) -*,,-; ~'""' .. '. \." --.-.-:;..-.:_-~-, '-'-'-.-- ---..-----.<.-- ~ .' - I I '. WHEREAS, PACT and the City wish to set forth their respective rights and obligations regarding the operation and use of the Facility, and to terminate that certain Facility Availability Agreement dated December , 1978, previously entered into between them. - NOW, THEREFORE, in consideration of the mutual promises here in con tained, the Ci ty and PACT agree as follows: SECTION 1. RECITALS The foregoing recitals are true and correct and are incorporated herein by reference. SECTION 2. USE OF FACILITY Subject to the terms of Section 4 hereof, PACT agrees to make the Facility available for use under tIlis Agreement by various community groups to be designated by the City for a maxi- mum of two hundred events during each yearly period commencing October 1 ("fiscal year"). Such utilization of the Facility is deemed to be for a public purpose and for the benefit of the people of the City. PACT shall make the Facility available to those community groups as shall from time to time be designa.ted by the City. Such use shall be at such times and on such days as shall be mutually agreed upon by PACT and the City. A schedule of dates and times for use of the Facility by such designated community groups shall be prepared at least once annually. Such schedule may be revised as necessary from time to time thereafter. The fees to be charged by PACT to such community groups for each event shall be annually estab~ished by the City in consultation with PACT and shall be comparable to fees charged to similar groups by similar facilities elsewhere in Florida. SECTION 3. PAYMENT FOR AVAILABILITY As consideration for the agreement by PACT to make the Facility available to community groups as described in the pre- ceding paragraph, and subject to the terms of Section 4 hereof, 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 Thirty Three Thousand Three Hundred Thrity Three Dollars and Thrity Three Cents ($33,333.33), regardless of ~'e number of events actually held by community groups pursuant hereto. -2- .-."--. ..-- ---.---. , I I ". ~ . SECTION 4. ANNUAL COMMITMENT BY CITY The City represents that it is the City's present inten- tion to make the payments described in Section 3 hereof in order to make the Facility available to community groups throughout the term of this Agreement. However, if it later determines that sufficient funds will not be available for such purpose in any year or years, then prior to' July 1 of each year, the City may, by written notice to PACT and the Trustee, determine .not to require the Facility to be made available during the next ensuing fiscal year to community groups hereunder, in which event no payments shall be due by the City to PACT during such fiscal year. However, the giving of such notice with respect to a par- ticular fiscal year shall not terminate this Agreement, and, except as to the particular fiscal year with respect to which notice is given, PACT and the City shall continue to be obligated to make the Facility available under Section 2, and to make payments for such purpose under Section 3, respectively, for all future fiscal years thereafter during the term of this Agreement, unless further notice or notices are given pursuant to this Section by the City for any such future fiscal year or years. SECTION 5. OPERATION AND MANAGEMENT OF THE FACILITY PACT shall have sole and absolute control over the man- agement and operation of the Facility, without interference by the City. PACT covenants and agrees to operate the Facility as a performing arts center. PACT shall comply with all laws, rules, regulations and requirements of all federal, state and local governments and agencies and departments thereof which are appli- cable to it. PACT shall keep the Facility in good repair and operating condition and maintain the Facility in as reasonably safe condition as the operation of the Facility permits. PACT shall pay all utility and other charges for the operation, main- tenance, use and upkeep of the Facility. PACT shall, from time to time, make all needful and proper repairs, renewals and re- placements to the Facility. PACT shall, at its own expense, pro- vide continuously from the effective date hereof, the following insurance coverage on the FaCility: (a) Insurance against loss and/or damage to the Facility under a POlicy or POlicies in form and amount covering such risKs as are ordinarily insured against by similar facili- ties, including, without limiting the foregOing, fire and' uniform standard extended coverage, vandalism and malicious mischief endorsements. Such insurance shall be for the amount of (i) the actual cash value of the Facil ity,. or (ii) the aggregate prin- cipal amount of the outstanding Bonds ,whichever is less. -3- . _._~---- "~---'------._- ---.-.... \-'-. . , "' . I I '. (bl Comprehensive general public liability insurance, protec ting PACT and the Ci ty as the ir in terests may appear, against liability for injuries to persons or property, occurring on the premises of the Facility, in the minimum amount of $1,000,000 liability to anyone person for personal injury, $50,000 liability to anyone person for property damage and $1,000,000 liability for anyone accident. (cl Fidelity bonds on all officers and employees of PACT Who collect or have custody of or access to the gross reve- nues of PACT, such bonds to be in amounts as are customarily carried by like organizations engaged in like activities, of com- parable s~ze and having comparable income. (d) Title insurance with' respect to the Facility in mJ.nJ.mum amount equal to. the aggregate outstanding principal amount. of the Bonds. SECTION 6. REBATE OF PORTION OF OPERATING SURPLUS On or before January 1 of each year during the term hereof, PACT shall furnish to the City an audited statement of income and expenses prepared by certified public accountants selected by PACT, which statement shall identify an operating surplus, if any, from the operations of the Facility for the pre- ceding fiscal year. As used herein, the term .operating surplus' shall mean the amount available after payment of operation and maintenance expenses and debt service on th Mortgage Notes and Pledge Notes. From such operating surplus to the extent available, on or before February 1 of each year, PACT shall remit to (al first, any public bodies having guaranteed all or any portion of the prinCipal of or interest on the Notes, in inverse order of payment, an amount or amounts necessary to reim- burse such public body or bodies for all amounts paid by such public body or bodies to PACT or a Lender under a guaranty agreement or agreements, (bl second, the City, an amount necessary to reimburse the City for all amounts paid by the City to PACT or a Lender under the Guaranty Agreement, (cl third, the City, the sum of $150.000, and (d) fourth, the City, 40% of the balance of the operating surplus for such preceding calendar year. -4- ',. ".: ...... " '. I I SECTION 7. DEFAULTS There shall be no default 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 lender or lenders under the Financing Documents the oppor- tunity to cure any such default within a period of ninety (90) days after written notice by the City to such lender or lenders of the existence of such uncured default. In the event such lender or lenders aresuccessful in curing any such default, then this Agreement shall remain in full force and effect in the same manner as if such default had not OCcurred and such lender or lenders shall as a consequence of curing such default be automa- tically substituted in the place of PACT hereunder and shall Succeed to all of the rights and Obligations of PACT hereunder. SECTION 8. TERM OF AGREEMENT The term of this Agreement shall begin on the date of issuance of the Notes and shall continue Wltil the Notes of PACT issued under the Financing Documents are no longer deemed outstanding provided, that the City may terminate this Agreement at any time upon thirty (30) days' written notice to PACT and the lender or lenders if the City assumes all of the obligations of PACT under all contracts, agreements and instruments to which PACT is a party or under which PACT has Obligations, in which event the City shall become the owner in fee and entitled to exclusive possession of the Facility, subject only to the liens contmplated by the Financing Documents; provided, further, that noting herein shall authorize the City to assume any mortgage or acquire any property subject to a mortgage lien except when duly authorized pursuant to law. SECTION 9. NOTICES All notices, demands, or other writings in this Agreement provided to be given or made or sent, or which may be given or made or sent, by either party hereto to the other, shall be 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 -5- ......--~----. .._-. .'-'---. --"'--'--- .. . ~ , ,,'- " 'j ~ ~ ...- .'" ~. c I I TO PACT: PACT, Inc. P. O. Box 1574 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 pro- vided may be changed by written notice given by such party as above provided. SECTION 10. PARTIES BOUND 7 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 under the Financing Documents .as security for any Mortgage Notes issued under the Financing Documents, and, if so assigned, may not be amended by the parties without the approval of the lender or lenders under the Financing Documents. This Agreement may not be otherwise assigned by PACT without the approval of the City. This Agreement may be assigned by the City to Pinellas County, Florida without the approval 'of PACT or the lender or lenders under the Financing Documents, but shall not be otherwise assigned by the City without the approval of PACT and the lender or lenders under the Financing Documents. SECTION 11. TIME OF THE ESSENCE Time is of the essence of this Agreement, and of each and every covenant, term, condition, and provision hereof. SECTION 12. 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. SECTION 13. COUNTERPARTS This Agreement may be executed in one or more counter- parts, each of which shall constitute an original but all of which together shall constitute one agreement. SECTION 14. TERMINATION OF PRIOR AGREEMENT That certain Facility Availability Agreement dated December , 1978, previously entered into between the City and PACT is hereby terminated and cancelled. -6~ , " .." ,.- <.... ".0 J ." ~.," -- ~ ~ ,-~ J IN WITNESS WHEREOF, the parties have executed this Agreement at Clearwater, Florida, on the day and year first above written. ~4./~ - .yor..,;. ornmissioner & correctne s s: WITNESSED, 4L~d~ /~~~, -7- By ATTEST: ~~'~..~'.' Ci ty Clerk-' ~~::M ATTEST, /~/u:-; Secretary , .~. -.c: .--:- ~.~ ,'- ::.