CAPITAL PROJECT FUNDING AGREEMENTCITY OF CLEARWATER CAPITAL PROJECT FUNDING AGREEMENT WITH
CLEARWATER MARINE AQUARIUM
THIS AGREEMENT ("Agreement") is made and entered into as of the :2? -14; day of
, 2017 ("Effective Date"), by and between the City of Clearwater, a
municipal corporation of the State of Florida, hereinafter referred to as the "City" and
the Clearwater Marine Aquarium, Inc., a Florida non-profit corporation, hereinafter
referred to as "CMA" (collectively, the "Parties" or individually a "Party").
WHEREAS, the Clearwater Marine Aquarium, Inc. (CMA) is a 501(c)(3) not for
profit corporation located in Clearwater, Florida; and
WHEREAS, it is CMA's mission to preserve our marine life and environment while
inspiring the human spirit through leadership in education, research, rescue,
rehabilitation, and release; and
WHEREAS, since the 1970's CMA has provided Clearwater with a permanent
marine biology learning center focused on preservation, rehabilitation, and education
regarding marine life; and
WHEREAS, in 1978 the City of Clearwater donated CMA's current location, a
former water treatment plant on Island Estates, to provide space for CMA to accomplish
its mission; and
WHEREAS, today, CMA is an internationally respected center for animal care,
public education and marine research; and
WHEREAS, the CMA Capital Project, as defined herein, has been determined to
promote tourism in Pinellas County and is the interest of the public health, safety and
welfare of the community; and
WHEREAS, the City agrees to provide CMA with funding for the Capital Project
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 that certain project/facility
commonly known as the Clearwater Marine Aquarium "Facility"
located in Clearwater, Pinellas County, Florida and described in
Exhibit A attached hereto and incorporated herein by reference.
Any reduction in the number of parking spaces or the number of
dolphin pools and any reduction of 20% or more in the amount of
square feet of additional guest space outlined in Exhibit "A" will
require approval of the City Manager. CMA may make minor
modifications to the approved site plan as determined by the
Community Development Coordinator. For purposes of this
Capital Project Funding Agreement, any modification to the
approved site plan requiring additional Level II approval will
require approval by the City Council. The City Council's approval
of any modifications requiring additional Level II approval is
limited to the Council's agreement to provide Capital Project
funding as outlined in this Agreement.
B. "Commencement Date" means the date that CMA commences
construction of the Capital Project improvements on the project
site after completion of the project design and the issuance of all
permits and approvals necessary to begin construction of the
Capital Project.
C. "Project Budget" means the construction budget with project
elements described in Exhibit B attached hereto and
incorporated herein by reference.- CMA is attempting to "Value
Engineer" its project to minimize cost without affecting visitor
programing. If Project Cost is reduced such that final Project
Cost falls below $60,0000,000, CMA will reimburse the City a
pro -rata share of the cost savings (amount funded by City
divided by $60,000,000 X Cost Savings).
3. TERM. The term of this Agreement shall commence on the effective Date and
continue in full force and effect through August 31, 2022 ("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. CMA continues to own and operate the Clearwater Marine Aquarium.
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B. The Commencement Date occurs no later than August 1, 2018.
C. CMA and Pinellas County execute Capital Funding Project Agreement for
Twenty -Six Million ($26,000,000.00) Dollars prior to payment of any city
funds. Matching funds must be maintained and City must be notified
immediately if those matching funds are lost or become unavailable.
However, this does not prevent CMA from expending any matching funds
for the purpose of constructing the Project.
D. Obtain the debt financing or other alternative funding equivalent to 75% of
the Project Budget necessary to construct the Project prior to payment of
any City funds.
5. CONDITION PRECEDENT TO MATCHING FUNDS DISBURSEMENT. Prior to
payment by the City of the Two Million Dollar ($2,000,000.00) matching portion of
the City's Capital Project Funding, CMA shall provide City evidence of the private
(nongovernmental) cash donations.
6. CITY'S RESPONSIBILITIES. Upon receipt of documentation establishing
satisfaction of the conditions precedent as required in Section 4 required by the
City, the City agrees to pay to CMA Capital Project funds in the sum not to exceed
Five Million Dollars ($ 5,000,000.00), from legally available funds of the City, as
follows:
A. One payment of Three Million Dollars ($3,000,000.00) during the City's
2018 fiscal year which commences on October 1, 2017 and ends on
September 30, 2018, upon receipt of a written payment request from
CMA at the address set out in Section 13.A, with such documentation as
reasonably required herein or requested by the Finance Director.
B. Two Million Dollars ($2,000,000.00), as referred to in paragraph 5., paid
as a one-time matching grant for private (nongovernmental) capital
funding raised and received by and immediately available to CMA upon
receipt of a written payment request from CMA at the address set out in
Section 13.A, with such documentation as reasonably required herein or
requested by the Finance Director.
C. City'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 CMA.
D. The Capital Project Funds shall be paid in accordance with section
218.70 et seq., Florida Statutes. The Local Government Prompt Payment
Act."
7.CMA'S RESPONSIBILITIES. During the Term of this Agreement, the CMA shall:
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securing all permits and approvals required for the Project, contracting
and/or subcontracting with all third parties necessary to complete the
Project, and operating 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. CMA may elect to increase the Project Budget
or any component part thereof, and shall be solely responsible for the
additional costs and expenses, including any cost overruns, on the Project.
C. Enter into Capital Project Funding Agreement with Pinellas County prior to
payment of any City funds.
D. Obtain the debt financing or other alternative funding equivalent to 75% of
the Project Budget necessary to construct the Project prior to payment of
any City funds.
E. Operate, maintain, repair, replace, and insure the Facility in a manner
consistent with other comparable aquariums in the United States.
F. Within 48 months of execution of this Agreement, raise a minimum of Two
Million ($2,000,000.00) Dollars of private (nongovernment) cash capital
contributions prior to obtaining city matching grant as referred to in
paragraph 5. Private cash capital contributions designated for the Project
made within 12 months preceding this Agreement may be included in
calculating the match.
8.DEFAULTS ANDREMEDIES.
A. Events of Default. Each of the following shall constitute an event of
default (each, an "Event of Default") hereunder:
1. A breach by CMA of any material term, covenant,
obligation or agreement under this Agreement, and the
failure of CMA to cure such breach for a period of thirty
(30) days after written notice thereof shall have been
given to CMA;
2. CMA's 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 it is insolvent and
unable to pay its debts when due;
3. A payment request containing a material misrepresentation by
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CMA;
4. CMA ceases operations of the Capital Project or Facility during the
Term;
5. CMA 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 City 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 CMA. The City shall then have no
further funding obligation under this Agreement;
2. If the City has paid any Capital Project funds, CMA shall
repay to the City all Capital Project funds received by it for
the Project;
3. Additionally, the City and CMA 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 City to or of
any breach or default by CMA in the performance of its
obligations under this Agreement shall constitute a consent to
or waiver of any similar breach or default by CMA. The failure
of the City to complain of any act or omission to act by CMA or
to declare CMA in default, irrespective of how long such
failure continues, shall not constitute a waiver by the City 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. INDEMNIFICATION. CMA shall, to the extent permitted by law, protect,
defend, indemnify, pay the cost of defense, and hold harmless the City, its
agents, elected officials and employees from all damages, suits, actions or claims
of any character brought on account of any injuries or damages received or
sustained by any person, persons, or property, or in any way relating to or arising
[GM17-9100-048/208117/1] 5
from the construction or operation of the Project herein or its performance under
the Agreement; or on account of any act or omission, neglect or misconduct of
CMA, its agents, elected officials, employees, contractors, subcontractors; or
arising from or by reason of any actual or claimed trademark, patent or copyright
infringement or litigation based thereon; or by, or on account of, any claim or
amounts received under the Workers' Compensation Law or of any other laws, by-
laws, ordinance, order or decree.
11. DUE AUTHORITY. Each party to this Agreement represents and warrants
to the other party that: (i) it has the full right and authdrity 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.
12. ASSIGNMENT. No party to this Agreement may assign rights or delegate
any duties under this Agreement without the prior written consent of the other
party.
13. 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 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) to the
authorized representative of the recipient provided below:
TO THE CITY:
City Manager
William B. Horne, II
112 S. Osceola Ave.
Clearwater, FL 33756
TO THE CMA:
Chief Operating Officer
Frank L. Dame
249 Windward Passage
Clearwater, FL 33767
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.
14. 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
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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.
15. GOVERNING LAW. This Agreement shall be construed in accordance with
the Laws of the State of Florida.
16. 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.
17. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the Parties' respective successors and assigns.
18. NO THIRD PARTY BENEFICIARY. Persons not a party to this agreement
may not claim any benefit hereunder or as third party beneficiaries hereto. This
provision does not affect or inhibit the rights of any lenders providing construction
financing to CMA under the terms of separate agreements that the City is not a
party to.
19. 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.
20. NO CONSTRUCTION AGAINST PREPARER OF AGREEMENT. This
Agreement has been prepared by City and reviewed by CMA and its professional
advisors. The City, CMA, and their professional advisors believe that this Agreement
expresses their understanding and that it should not be interpreted infavor of or
against either party merely because of their efforts in preparing it.
21. 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.
22. 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.
23. FUNDING OBLIGATION. This Capital Project Funding Agreement is not a
general obligation of the City. The obligations of the City as to any funding
required pursuant to this Agreement shall be limited to an obligation in any
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given year to budget and appropriate sufficient funding that is required during
that year from legally available funds after funding for secured obligations,
essential and necessary services. The City agrees to promptly notify CMA in
writing at least fifteen (15) days prior to any public hearing related to the
anticipated failure to appropriate funding as contemplated herein and notify
CMA in writing of such failure of appropriation.
24. INDEPENDENT CAPACITY.
A. The Parties agree that CMA and 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 City. CMA agrees to take such steps as
may be necessary to ensure that any third -party it contracts with will
be deemed to be an independent contractor and will not be
considered or permitted to be an agent of the City.
B. CMA has no authority to, and shall not pledge the City's credit or
make the City a guarantor of payment or surety for any contract,
debt, obligation, judgment lien, or any form of indebtedness.
25. 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
Agreement irrespective of whether the parties have advance notice of the
possibility of such damage; provided however, the foregoing limitation does not
apply to the indemnification obligations described in Section 9 herein.
26. PUBLIC RECORDS.
A. CMA acknowledges that information and data relating to its
services may be public records in accordance with Chapter 119, Florida
Statutes. CMA 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 and
regulations, including but not limited to the Sec. 119.0701, Florida
Statutes. Notwithstanding any other provision of this Agreement relating
to compensation, CMA agrees to charge the City, and/or any third
parties requesting public records only such fees allowed by Section
119.07, Florida Statutes for locating and producing public records during
the term of this Agreement.
B. If CMA has questions regarding the application of Chapter 119,
Florida Statutes, to the duty to provide public records relating to this
contract, contact Rosemarie Call, City Clerk at 727-562-4093,
Rosemarie.Call@myclearwater.com, or send your questions by mail to:
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City Clerk, 112 S. Osceola Ave., Clearwater, FL 33756.
27. 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.
28. SURVIVAL. The terms and obligations Section 6, 7, 9, 21, and 23 of shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives on the date first above written.
WITNESSES
Sign:
Print:
Sign:
.en Apra
Print: us
CLEARWATER MARINE AQUARIUM
B
Printed name: Frank L. Dame, COO
CITY OF CLEARWATER CAPITAL PROJECT FUNDING AGREEMENT WITH
CLEARWATER MARINE AQUARIUM
Countersigned:
ctQAv l Wk.\'Xos
George N. Cretekos
Mayor
Approved as to f rm:
Pamela K. Akin
City Attorney
[GM 17-9100-048/208117/1 ] 9
CITY OF CLEARWATER, FLORIDA
By:
Attest:
William B. Horne II
City Manager
Rosemarie Call
City Clerk
Exhibit A
Capital Project Description
The Clearwater Marine Aquarium (CMA) is operating out of a converted water treatment
plant not designed as an aquarium attraction or rescue facility. The building is capacity
constrained and limits increased future growth. The facility operates as a marine hospital
whose capacity to care for dolphins, sea turtles, river otters and other marine animals is
limited to the existing pools. To provide for optimal care for these marine animals,
enhance the guest capacity and improve the guest experience CMA's Capital
Improvement Project, with a cost of approximately $64.0 million is designed to deliver
these enhancements.
The project will facilitate high quality in both design of the facility and care for non -
releasable resident marine animals it houses as well as enhance the visitor experience.
The proposed improvements include a minimum of a 376 space parking garage, 5 new
dolphin pools, and approximately 93,500 square feet of additional guest space including
new buildings, an elevated deck, balconies and ground floor viewing areas. These
additions will provide for improved animal care, guest capacity for future growth,
additional exhibits and the enhancement of the organization's ability to educate the public
on the preservation of marine life and the environment. This plan also includes improved
vehicular access to our facility. Project implementation began in October 2016; and is
planned to be phased in, with completion targeted for FY 2020. For the purposes of this
analysis, the stable year of operations is assumed to occur in FY 2022, after the Master
Plan has been fully implemented.
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Exhibit B
Capital Funding Project Budget
Total Project Cost $64,082,918
Phase 1: Pre -Construction, Architectural & Parking Garage
Owners rep for Pre Construction and Phase I Parking Garage $ 206,000
Civil Engineering Documents $ 64,500
Additional Civil Engineering Fees (Fisher 5/17) $ 12,000
Architectural fees 1/0 to Fisher $ 512,400
Architectural fees paid to 1/0 $ 146,655
Structural Construction Documents $ 250,000
Electrical Construction Documents $ 185,000
Mechanical & Plumbing Construction Documents $ 150,000
Landscaping Design and Document Allowance $ 15,000
Geotechnical Services $ 12,970
Life Support engineering (Satchell Engineering) $ 101,450
Interior design fees $ 400,000
Permitting and Impact Fees (Estimated) $ 250,000
Parking Consultants (Walker) $ 8,000
Pre -Construction Total $ 2,313,975
Phase' ParkingGarage(223spaces)
Parking Garage Budget Phase 1 $ 7,462,073
Site Work Allocation S 1,502,773
Demo and Drive Allowance S 450,000
Guaranteed Maximum Price (GPM) Increase $ 29,486
General Conditions, Direct Costs, Contingency, insurance Fee $ 1,375,452
Sub Total $ 10,819,784
Total Pre -Construction, Const. Management & Phase I Parking Garage
Construction (completed) $ 13,133,759
Phase 2: Dolphin, Main building, Phase 2 Parking Demo, & Site Work
Construction Management (Owner's Rep for Phase 2) $ 180,000
Dolphin, Main building, 3rd floor TI, Demo,& site work for Phase 2 $ 40,607,273
2nd floor Interior Buildout for Education $ 514,761
Garage Phase 2 & Event Space Shell $ 4,232,502
4th floor Interior Buildout, Theater, Dolphin Tale Exhibit, Event Space $ 2,306,161
Exhibit Build Out $ 1,000,000
Phase 2 Sub Total $ 48,840,697
Phase 3 Improvement to Old Facility
Lower Mangrove/Old Pelican exhibit $ 241,969
Phase 3 Improvements to Old Facility Sub Total $ 241,969
Total Project Cost $ 62,216,425
3% Owner Contingency $ 1,866,493
Grand Total $ 64,082,918
Note: Project Cost does not include FF&E or Capital Campaign expenses
6/8/2017
RESOLUTION OF BOARD OF DIRECTORS
OF CLEARWATER MARINE AQUARIUM, INC.
I HEREBY CERTIFY that I am the duly elected and qualified Secretary of
CLEARWATER MARINE AQUARIUM, INC., a Florida not-for-profit corporation
("Corporation"), and the keeper of the records and corporate seal of this Corporation, and that
the following is a true and correct copy of the Resolution duly adopted by a majority vote held
on October 5, 2017 of the Board of Directors of said Corporation, in accordance with the Articles
of Incorporation and the By-laws of said Corporation.
BE IT RESOLVED that the Corporation by and through David Yates, as Chief Executive
Officer or Frank L. Dame, as Executive Vice President and Chief Operating Officer of said
Corporation, are hereby authorized and directed in the name of, and for the benefit of said
Corporation to execute, endorse and deliver the "City of Clearwater Capital Funding Agreement"
by and between the City of Clearwater, Florida, (the "City") and the Corporation, attached hereto
as Exhibit "A", and to execute any other document necessary for the Corporation to perform its
obligations under said agreement and to receive the revenue from the City.
RESOLVED FURTHER, that all actions to date taken by the officers of the Corporation
in connection with the receipt of the revenue from the City are hereby ratified and confirmed.
IN WITNESS WHEREOF, I have hereunto affixed me as Secr- ary and have
caused the corporate seal of said Corporation to be affixed this / day o • tober, 2017.
(Seal)
Linda Griffin-Kecretary