CAPITAL PROJECT FUNDING AGREEMENT - RUTH ECKERD HALLCAPITAL PROJECT
FUNDING AGREEMENT
Ruth Eckerd Hall
THIS AGREEMENT ("Agreement") is made and entered into as of the 2 day of
October , 2017 ("Effective Date"), by and between Pinellas County, a political
subdivision of the State of Florida ("County") and the City of Clearwater a Florida Municipal
Corporation ("City") (collectively, the "Parties" or individually a "Party").
WHEREAS, in accordance with Section 118-32 Pinellas County Code and Florida
Statutes § 125.0104, the County is authorized to utilize Tourist Development Tax revenues to fund
statutorily eligible capital projects; and
WHEREAS, in order to equitably and consistently evaluate capital project funding
requests, the County adopted Capital Project Funding Guidelines, which established both the
requisite criteria, documents, studies and related financial information to be submitted by a capital
funding applicant, as well as the capital project funding application and review process; and
WHEREAS, as part of the review and evaluation process, the County hired a consultant
to review capital project funding applications and to provide a report of same to both the County
and the Tourist Development Council for their consideration when evaluating capital project
funding applications; and
WHEREAS, after due consideration of the capital project funding applications, the
Consultant's report and the recommendations of its Tourist Development Council, the County has
approved the funding of certain capital projects determined to best promote tourism in Pinellas
County; and
WHEREAS, the County, through its Board of County Commissioners agrees to provide
the City with funding for the Capital Project, as defined herein, in the amount and in accordance
with the terms and conditions described herein; and
WHEREAS, this Agreement sets forth the rights and obligations of the Parties related to
the capital project, funding, and related matters.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises
contained herein and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties agree as follows:
1. RECITALS. The above recitals are true and correct and are adopted as an integral part of this
Agreement.
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2. DEFINITIONS. In addition to other capitalized terms or phrases that may be defined
elsewhere in this Agreement, the following capitalized terms shall have the meaning set forth as
follows:
A. "Capital Project" or "Project" means the improvements to that certain statutorily
eligible project/facility commonly known as Ruth Eckerd Hall located in Clearwater, Pinellas
County, Florida ("Facility") set out in the Project budget described in Exhibit A attached hereto
and incorporated herein by reference. The Facility is owned by the City and operated by Ruth
Eckerd Hall, Inc., a Florida Non-profit corporation ("REH").
B. "Tourist Promotion Benefits" means any and all tourism promotion and/or marketing
benefits provided by the City through REH to market/promote the destination through Visit St.
Petersburg Clearwater ("VSPC") as part of the consideration for the County funding of the Project,
as further described in Exhibit B attached hereto and incorporated herein by reference.
C. "Tourist Tax Revenues" means any legally available tourist tax revenues levied and
collected by the County pursuant to Section 125.0104, Florida Statutes, for capital funding of the
Project in accordance with the County's Tourist Development Plan.
3. TERM. The term of this Agreement shall commence on the Effective Date and continue in
full force and effect through September 30, 2020 ("Term"), unless otherwise terminated as
provided herein.
4. CONDITIONS PRECEDENT TO CAPITAL PROJECT FUNDING. The disbursement
of, and any continued funding for the Capital Project herein, is subject to the following conditions
precedent during the Term:
A. The City of Clearwater continues to own and Ruth Eckerd Hall, Inc. continues to
operate the facility.
B. The City, through Ruth Eckerd Hall, provides to the County the Tourism Promotion
Benefits.
C. The Plan authorizes Tourist Tax Revenues to be expended for such capital
improvements.
D. The Capital Project is completed no later than September 30, 2020.
E. The City and REH matching funds must be maintained and County must be notified
immediately if those matching funds are lost or become unavailable.
F. Any and all funds utilized to complete the Capital Project funded herein must be
expended first before County funds are expended on the Project in accordance with the
reimbursement requirements in Section S.A.
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5. COUNTY'S RESPONSIBILITIES. Upon providing documentation as specifically set forth
in subparagraph (A) below establishing satisfaction of the conditions precedent as required in
Section 4 required by the County, the County agrees to pay to the City Capital Project funds in the
sum of not to exceed Five Million Five Hundred Thousand Dollars ($5,500,000.00), from legally
available Tourist Tax Revenues and from no other revenue source of the County, subject to the
adjustments as provided in Sections 6.C. and 8, as follows:
A. Reimbursement Payments shall be made in annual payments not exceeding Two
Million Seven Hundred and Fifty Thousand Dollars ($2,750,000.00) during the County's FY
2017/2018 and FY 2018/2019 which commence on October 1 and end on September 30 of the
fiscal year, upon receipt of a written payment request from the City directed to the VSPC at the
address set out in Section 12.A., with such documentation as required herein and any additional
documentation required by the VSPC Director. At a minimum, the payment request shall include
documentation detailing (i) invoices or applications for payment which includes a detailed list of
the work completed for which the City is seeking reimbursement; (ii) proof of payment for such
work; (iii) a letter from either the contractor, design professional, or the City certifying that the
work for which reimbursement is sought has been completed; and (iv) written documentation
received from contractor, materialmen, subcontractors or other parties verifying payment by the
City and for which reimbursement is being sought. The payment requests shall be no more frequent
than quarterly after compliance with the requirements of Section 4 herein.
B. County's contributions of Capital Project funds herein shall in no event exceed any
amount agreed to herein and any and all excess project costs are the sole responsibility of City.
C. The Capital Project Funds shall be paid in accordance with Section 218.70 et seq.,
Florida Statutes, "The Local Government Prompt Payment Act."
6. CITY'S RESPONSIBILITIES. During the Term of this Agreement, the City shall:
A. Manage, supervise, oversee, pay all costs and expenses related to, and be solely
responsible for completing the Project including, but not limited to securing all permits and
approvals required for the Project, contracting and/or subcontracting with all third parties
necessary to complete the Project, and operate the project/facility.
B. Utilize all commercially reasonable efforts to complete the Project within the Project
Budget on an agreed upon date, but in any event, no later than the term of this agreement. The City
may elect to increase the Project Budget or any component part thereof with notice to the County,
and shall be solely responsible for the additional costs and expenses, including any cost overruns,
on the Project.
C. Notify County of any project cost savings or changes in scope of work that reduces
project costs so County may reduce its contribution on a pro rata basis.
D. Provide the Tourism Promotion Program benefits for a period of eighteen years from
the completion of the Project.
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E. Operate, maintain, repair, replace, and insure the Facility in a manner consistent with
other comparable performing arts auditoriums in Pinellas County.
7. RIGHT TO AUDIT.
A. All of the City's records related to this Agreement shall be open to inspection and
subject to reproduction by the County during normal working hours to the extent necessary to
permit adequate evaluation and verification of any invoices for payment, or claims, submitted by
the City pursuant to the execution of the Agreement. Such records shall include, but not be
limited to, accounting records, written policies and procedures, subcontractor files, original
estimates, estimating worksheets, correspondence, Change Order files (including the
documentation of negotiated settlements), any supporting evidence necessary to substantiate
charges related to this Agreement, and any records necessary to evaluate and verify costs as they
may apply to costs associated with this Agreement.
B. For the purpose of such audits, inspections, examinations and evaluations the County
shall have access to the said records from the effective date of this Agreement, for the duration
of the Work, and until thirty-six (36) months after the date of final payment by the County to
the City for performance under this Agreement. The City hereby agrees to maintain said records
in safe and dry storage until the end of this time period.
C. The County shall have access to the City's facilities and all necessary records in order
to conduct audits in compliance with this Paragraph.
8. DEFAULTS AND REMEDIES.
A. Events of Default. Each of the following shall constitute an event of default (each, an
"Event of Default") hereunder:
1. A breach by the City of any material term, covenant, obligation or agreement
under this Agreement, and the continuance of such breach for a period of thirty (30) days
after written notice thereof shall have been given to City except for a breach of those
provisions described in subsection 4, 5 or 6 below, which will entitle the County to
immediately exercise the available remedies;
2. The City voluntary filing of or consent to a petition under any bankruptcy,
insolvency, or reorganization law, failure to secure the dismissal of an involuntary
bankruptcy petition within 60 days of filing, or a determination by a court of competent
jurisdiction that is insolvent and unable to pay its debts when due;
3. A payment request containing a material misrepresentation;
4. The City or REH ceases operations of the Capital Project or Facility during the
period set out in Section 6.D. herein.
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5. The Tourist Tax Revenues legally available to pay this obligation are repealed or
expire as provided by law.
6. The City fails to pay taxes and/or assessments, if any, when due.
B. Remedies. Upon or at any time after the occurrence of an Event of Default which has
not been cured if authorized herein:
1. The County may withhold, temporarily or permanently, any or all unpaid portion
of the Capital Project Funds and/or may terminate this Agreement by giving seven (7)
calendar days' notice to the City. The County shall then have no further funding obligation
under this Agreement;
2. If the County has paid any Capital Project Funds, the City shall repay to the
County all Capital Project Funds received by it for the Project;
3. Additionally the County may exercise any right, power, or remedy as provided
in law or equity pursuant to Florida law.
C. No consent or waiver, express or implied, by the County to or of any breach or default
by the City in the performance of its obligations under this Agreement shall constitute a consent
to or waiver of any similar breach or default by the City. The failure of the County to complain of
any act or omission to act by the City or to declare the City in default, irrespective of how long
such failure continues, shall not constitute a waiver by the County of its rights under this
Agreement.
9. COMPLIANCE WITH LAWS. The Parties shall comply with all applicable federal, state,
and local laws, ordinances, rules and regulations, the federal and state constitutions, and the orders
and decrees of any lawful authorities having jurisdiction over the matter at issue including but not
limited to applicable public records laws.
10. DUE AUTHORITY. Each party to this Agreement represents and warrants to the other party
that: (i) it has the full right and authority and has obtained all necessary approvals to enter into this
Agreement; (ii) each person executing this Agreement on behalf of the party is authorized to do
so; and (iii) this Agreement constitutes a valid and legally binding obligation of the party,
enforceable in accordance with its terms.
11. ASSIGNMENT. No party to this Agreement may assign any rights or delegate any duties
under this Agreement without the prior written consent of the other party.
12. NOTICES.
A. Unless and to the extent otherwise provided in this Agreement, all notices, demands,
requests for approvals and other communications which are required to be given by either party
shall be in writing and shall be deemed given and delivered on the date delivered in person to the
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authorized representative of the recipient provided below, upon the expiration of five (5) days
following the date mailed by registered or certified mail, postage prepaid, return receipt requested,
to the authorized representative of the recipient provided below, or upon the date delivered by
overnight courier (signature required) or emailed to the authorized representative of the recipient
at the email provided below:
TO THE COUNTY:
David Downing, Director
Visit St. Petersburg/Clearwater
8200 Bryan Dairy Rd. Suite 200
Largo, FL 33777
David@visitspc.com
TO THE CITY:
Kevin Dunbar, Director
Parks and Recreation Dept.
P.O. Box 4748
Clearwater, FL 33758
Kevin.Dunbar@myclearwater.com
B. Either party may change its authorized representative or address for receipt of notices
by providing the other party with written notice of such change. The change shall become effective
ten (10) days after receipt by the non-changing party of the written notice of change.
13. WAIVER. No act of omission or commission of either party, including without limitation, any
failure to exercise any right, remedy, or recourse, shall be deemed to be a waiver, release, or
modification of the same. Such a waiver, release, or modification is to be effected only through a
duly executed written modification to this Agreement.
14. GOVERNING LAW. This Agreement shall be construed in accordance with the Laws of the
State of Florida.
15. JURISDICTION AND VENUE. Venue for any action brought in state court shall be in
Pinellas County, Clearwater Division. Venue for any action brought in federal court shall be in the
Middle District of Florida, Tampa Division, unless a division shall be created in Pinellas County,
in which case the action shall be brought in that division. Each party waives any defense, whether
asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient
venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and
irrevocably waive any objections to said jurisdiction.
16. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon the
Parties' respective successors and assigns.
17. NO THIRD PARTY BENEFICIARY. Persons not a party to this Agreement may not claim
any benefit hereunder or as third party beneficiaries hereto.
18. HEADINGS. The paragraph headings are inserted herein for convenience and reference only
and in no way define, limit, or otherwise describe the scope or intent of any provisions hereof.
19. NO CONSTRUCTION AGAINST PREPARER OF AGREEMENT. This Agreement has
been prepared by County and reviewed by the City and its professional advisors. The County, the
City, and their professional advisors believe that this Agreement expresses their understanding and
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that it should not be interpreted in favor of, or against either party merely because of their efforts
in preparing it.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
Parties and no change will be valid unless made by supplemental written agreement executed by
the Parties.
21. SEVERABILITY. Should any paragraph or portion of any paragraph of this Agreement be
rendered void, invalid or unenforceable by any court of law for any reason, such determination
shall not render void, invalid or unenforceable any other paragraph or portion of this Agreement.
22. FUNDING OBLIGATION. This Capital Project Funding Agreement is not a general
obligation of the County. The obligations of the County as to any funding required pursuant to this
Agreement shall be limited to an obligation in any given year to budget and appropriate sufficient
funding that is required during that year from legally available Tourist Tax Revenues after funding
for secured obligations, essential and necessary tourism services, and Tourist Development Taxes
restricted as to use by the Plan have been budgeted and appropriated. Notwithstanding the
foregoing, the County shall not be prohibited from pledging any legally available Tourist
Development Taxes for any obligations heretofore or hereafter incurred, which pledge shall be
prior and superior to any obligation of the County pursuant to this Agreement.
23. INDEPENDENT CAPACITY.
A. The Parties agree that the City its officers, agents, and employees, in performance of
this Agreement, will act in the capacity of an independent contractor and not as an officer,
employee, or agent of the County. The City agrees to take such steps as may be necessary to ensure
that any third -party City contracts with, will be deemed to be an independent contractor and will
not be considered or permitted to be an agent of the County.
B. The City has no authority to, and shall not pledge the County's credit or make the County
a guarantor of payment or surety for any contract, debt, obligation, judgment lien, or any form of
indebtedness.
24. DAMAGES. In no event shall either party be liable to the other (nor to any person claiming
any right, title, or interest derived from, or as a successor to the agreement) for incidental,
consequential, or special damages of any kind, including without limitation, lost profits, or loss of
business arising out of this funding agreement irrespective of whether the parties have advance
notice of the possibility of such damage.
25. PUBLIC RECORDS.
A. The City acknowledges that information and data relating to its services may be public
records in accordance with Chapter 119, Florida Statutes and Pinellas County Public Records
Policies. The City agrees that prior to providing services it will implement policies and procedures
to maintain, produce, secure, retain, and transfer public records in accordance with applicable laws,
regulations, and County policies including but not limited to the Sec. 119.0701, Florida Statutes.
Notwithstanding any other provision of this Agreement relating to compensation, the City agrees
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to charge the County, and/or any third parties requesting public records only such fees allowed by
Section 119.07, Florida Statutes and County policy for locating and producing public records
during the term of this Agreement.
B. If the City has questions regarding the application of Chapter 119, Florida Statutes, to
the duty to provide public records relating to this contract, contact Pinellas County Convention
and Visitors Bureau (CVB/VSPC) custodian of public records at 727-464-7200,
Tim@visitspc.com, or send your questions by mail to: Pinellas County Convention and Visitors
Bureau, Tim Ramsberger, 8200 Bryan Dairy Rd., Suite 200, Largo, FL 33777.
26. TIME IS OF THE ESSENCE. Time is of the essence with respect to all provisions of this
agreement and attachments hereto that specify a time for performance; provided, however, that the
foregoing shall not be construed to limit a party's grace period allowed herein.
27. SURVIVAL. The terms and obligations of Section 6, 7, 8, 22, and 24 shall survive the
termination of this Agreement.
<Signature page follows>
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives on the date first above written.
Countersigned: CITY OF CLEARWATER, FLORIDA
By:
George N. Cretekos
Mayor
Approved as to Form:
By:
Assistant City Attorney
PINELLAS COUNTY, FLORIDA,
by and through its County Administrator
‘g(1)dt WOOSeta
By:
Mark S. Woodard
APPROVED AS TO FORM
OFFICE OF THE COUNTY ATTORNEY
By:
BY: Wkaimit-61/16-1441,
William B. Horne, II
City Manager
Attest:
By. �' tetk «
Rosemarie Call
City Clerk
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APPROVED AS TO FORM
By fi\ 7,-44
Office of the County Attorney
EXHIBIT A
Pro -Forma Budget: "Expanding the Experience" Capital Campaign - All
Phase Area of
1 Capitol Theatre Renovation COMPLETED
2 HVAC Replacement at Main Facility - COMPLETED
Existing Closed Loop DX + New Code Fresh
Added Scope: Stainless Steel Equip. & Chemical Water
Cost/Estimat
$ 10,839,60
$ 2,500,00
3 Murray Theatre Renovation - COMPLETED $ 1,500,00
4 Margarete Heye Great Room Renovation - COMPLETED $ 1,500,00
5 External & Internal Improvements to Main
West Lobby & Dress $ 5,278,00
Ticket Canopy/Renov. Box $ 182,000
Ticket Kiosk & Marquee $ 104,000
Marcia P. Hoffman Stage (Lighting, Sound & $ 93,600
Site Work, Landsape, Plaza $ 1,950,00
Parking & Road and Building Entrance Signage (No
Major Intersection Added Turn TBD
Marcia P. Hoffman Administration $ 364,000
Move AC to New $ 15,600
Grand Concourse (& Existing $ 135,200
Owner's $ 305,000
Owner's Bar/Food Service - West Lobby/Dress $ 100,000
Owner's Misc. AV $ 50,000
Owner, CM & Design $ 400,000
Design & Engineering Fees Incl. $ 300,000
Design & Engineering $ 135,000
Add Back Entry Road $ 93,600
AV & Lighting Package - Lighting, Displays, Projectors, $ 78,000
Staff Wish List $ 52,000
Exterior Repaint Masonry & $ 166,400
Exterior Repaint Pipe Fascia & Repair Deteriorated $ 130,000
Re -roof Balance of Building $ 260,000
Resurface Existing W Parking/Asphalt (No New $ 208,000
Rework Existing W Parking Curbing & $ 130,000
Rework W Parking Striping & INCL
Resurface Existing N Parking/Asphalt (No New TBD
Replace Site $ 130,000
Total Budget - All Campaign $ 27,000,00
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EXHIBIT B
Ruth Eckerd Hall agrees to provide the following Tourism Benefits as part of the Capital
Project Funding Agreement for a period of eighteen years from the completion of the
Project or as otherwise specified herein:
1. A permanent dedicated location of at least 10' x 15' inside the REH lobby in a
prominent area as mutually agreed to by REH and VSPC for a VSPC digital
welcome center, which may include but not be limited to digital equipment
(provided by VSPC) and amenities such as a desk and display racks, for staff
activity and distribution of VSPC promotion information and marketing
collateral/literature.
2. Promotional opportunities for up to 20 events at REH on an annual basis, both pre
and post event activation outdoors at the Facility to include, but not be limited to a
VSPC branded activations vehicle and/or a tent and equipment for promotions
activations.
3. Placement of VSPC branding on all REH event tickets or passes, except for third
party vendor tickets that prohibit placement on the ticket by agreement with REH.
4. One full page full color advertisement to be placed in each printed playbill/program,
or the equivalent that is produced and distributed (VSPC will provide the ad at its
expense).
5. Inclusion of the VSPC logo and link to the VSPC website in a prominent location
on the main page of the REH website.
6. Joint REH and VSPC promotion and marketing through social media, advertising,
direct sales, public relations and other programs as mutually agreed to by REH and
VSPC.
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