SECOND AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENTSECOND AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENT
THIS SECOND AMENDMENT TO CAPITOL THEATRE OPERATING AGREEMENT
(the "Agreement"), made and entered into this ` 4` day of Lo2e-e-4-4.10e.-4- , 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 City and REH entered into the First Amendment to the Capitol Theatre
Operating Agreement dated Auguat 30th, 2013 in which the City agreed to increase the Capitol
Theatre Project Budget by $500,000 upon receipt of the State Cultural Facilities Grant funds by
the City because the Capitol Theatre Project was experiencing unexpected costs and was
anticipated to be $700,000 - $800,000 over budget; and
WHEREAS, On October 21,2013 REH request that the City increase the Capitol Theatre
Project Budget by an additional $500,000 and transfer the funds held by the City for the Capitol
Theatre contingency ; and
WHEREAS, in order to provide for timely completion of the Capitol Theatre Project the
City has agreed to increase the Project budget ; 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 Eight Million One Hundred Twelve Thousand
Two Hundred Nine and 00 /100 Dollars ($8,112,209.00), which includes the $1,000,000
State Cultural Facilities Grant and the Five Hundred Thousand Dollars previously
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designated by the City as contingency for the Capitol Theatre or REH (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 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.
Witness - Signature
Witness - Print Name
Countersigned:
— q eor(e qCrC'tJ
George N. Cretekos
Mayor
Approved a to form:
Pamela K. Akin
City Attorney
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RUTH ECKERD HALL, INC., a Florida
non -profit corporation
By
Title: s t .A1 / c� )
CITY OF CLEARWATER, FLORIDA
By: W aUst ", t g 14,1a 7a-'
Wiliam B. Horne II
City Manager
Attest:
Rosemarie Call
City Clerk