FIRST AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENTFIRST AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENT
THIS FIRST AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENT (the
"Agreement "), made and entered into this day of , 2013, by and between
CITY OF CLEARWATER, a municipal corporation, whose mailing address is: Attn: Rod Irwin,
Assistant City Manager, Post Office Box 4748, Clearwater, FL 33758 -4748, hereinafter referred to
as "City ", and Ruth Eckerd Hall, Inc., a Florida not - for -profit corporation, whose mailing
address is: Attn: Zev Buffman, 1111 McMullen -Booth Road, Clearwater, FL 33759 hereinafter
referred to as "REH ";
WHEREAS, the City and REH entered into the Capitol Theatre Operating Agreement
dated September 20, 2012; and
WHEREAS, the Capitol Theatre Project is experiencing unexpected costs and is
anticipated to be $700,000 - $800,000 over budget; and
WHEREAS, the City has applied for and expects to receive a State Cultural Facilities
Grant of $1,000,000 for the Capitol Theatre; and
WHEREAS, upon receipt of the State funds by the City, the City agrees to increase the
Capitol Theatre Project Budget by $500,000; now, therefore:
Section 1. The parties agree to amend the Agreement as follows:
6. Construction, Renovation and Repair of the Capitol Theatre Facility.
(e)Cost of Construction. Except as expressly provided otherwise herein, the City
will be responsible for and will pay all costs associated with the Capitol Theatre Project
and the City Project, not to exceed Seven Million Six Hundred Twelve Thousand Two
Hundred Nine and 00 /100 Dollars ($7,612,209.00), which includes a $1,000,000 State
Cultural Facilities Grant (the "City Funds "). The City Project is anticipated to cost One
Hundred Sixty -eight Thousand Dollars ($168,000.00). Any funds not required to pay the
costs of the City Project shall be available to pay costs of the Capitol Theatre Project. As
the Capitol Theatre Project is underway, the City Funds shall be used to reimburse REH
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for costs of the Capitol Theatre Project and disbursed to REH within seven (7) days after
receipt of a written request for draw, which shall be in such form as the City may
reasonably require. Each such draw request shall include copies of all invoices and bills
and payment verification for the persons providing materials, labor and other services in
connection with the work covered by such draw request. REH shall provide the City with
lien waivers and releases for all such materials, labor and services being reimbursed with
the funds covered by the draw request. Further, prior to disbursing any funds with respect
to any draw request, the City shall have the right to require a certificate of the architect
stating that the work covered by the draw request has been properly completed in
accordance with the Plans and the Permits. The City will obtain builder's risk insurance
for the Capitol Theatre Project, the costs of which will be paid from City Funds.
REH shall be responsible for and shall pay all costs in connection with the
Capitol Theatre Project in excess of the amount of the City Funds.
If at any time, due to cost overruns or other reasons, the City determines
that the costs of completing the Capitol Theatre Project will exceed the amount of the
remaining undisbursed City Funds, then the City shall not be required to make any
further disbursements until REH has deposited into an escrow account held by the City
an amount equal to the amount of such excess costs. Such amount will be added to and
become part of the City Funds, and will be disbursed by the City in the same manner as
the City Funds.
Section 2. This amendment will become effective upon receipt of the $1,000,000 Cultural
Facilities Grant from the State and acceptance by the City Council.
[Remainder of page left intentionally blank- signature pages to follow)
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
1)L)
Witness - Signature
50E— art SDp-.i
Witness - Print Name
Countersigned:
R O )QtCfe4Dj
George N. Cretekos
Mayor
Ap roved to form:
�G
Pamela K. Akin
City Attorney
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RUTH ECKERD f-W.L, INC., a Florida
non-profit carport
By:
Name: ZCV 8'FFMAN)
Title: {� � -E QEO
CITY OF CLEARWATER, FLORIDA
By:
Li) 1[ {A . 1,44iv1 J -LL.
William B Horne ll
City Manager