SECOND AMENDMENT TO LEASE AGREEMENTSECOND AMENDMENT TO LEASE AGREEMENT
The Amendment is made and entered into this bi day of
1 a rc,r`t , 2018 ("Effective Date") by and between the CITY OF
CLEARWATER, FLORIDA, a municipal corporation of the State of Florida,
hereinafter "City" or "Lessor" and Ruth Eckerd Hall, Inc., a Florida not-for-profit
corporation, as successor in interest to PACT, Inc. hereinafter "REH" or "Lessee"
(each individually referred to herein as "Party" or collectively as the "Parties").
WHEREAS, the Parties entered into that certain Lease Agreement
("Lease") dated March 7, 2001 whereby the Lessor leased to Lessee property
being more fully described in Exhibit "A" attached hereto (hereinafter referred to
as the "Entire Parcel"); and
WHEREAS, the Lease was amended on November 25, 2003 to release a
portion of the Entire Parcel to the Lessor to construct a Habitat Restoration and
Mitigation Project, (hereinafter referred to as the "Mitigation Project") as permitted
by the Florida Department of Environmental Protection; and
WHEREAS, REH intends to improve the Ruth Eckerd Hall Facility to update
the facility and create the "Ruth Eckerd Hall Experience," attached hereto as
Exhibit B, and to further provide for the continuing operation thereof as a City
owned performing arts venue providing quality performing arts experiences and
educational opportunities; and
WHEREAS, the City finds that the renovation and redevelopment of the
Ruth Eckerd Hall Facility will preserve, enhance and improve the City owned
facility and enhance the performing arts experience for the community and
advance the City's economic development efforts, enhance tourism and arts
education and provide a clear sense of regional and national destination for the
City; and
WHEREAS, REH desires to construct, renovate, repair and continue to
operate the Ruth Eckerd Hall Facility, and is actively soliciting funds to provide for
the long-term operation and maintenance of the said premises and improvements
thereon as a performing arts venue; and
WHEREAS, the REH has requested that the City provide Funding for
certain capital improvements and enhancements for the Ruth Eckerd Hall
Experience; and
WHEREAS, the City has determined that it is in the public interest and
serves a public purpose to enter into this Second Amendment to the Lease
Agreement to provide funding in the amount of Three Million Dollars
($3,000,000.00) for specific capital Improvements and enhancements necessary
for the renovation, repair and operation of the Ruth Eckerd Hall Facility under and
pursuant to the terms and provisions hereinafter set forth; and
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WHEREAS, in order to the construct the improvements and expansion to
Ruth Eckerd Drive which are part of the Ruth Eckerd Hall Experience, REH, the
City, and Clearwater Housing Authority have entered into an Easement Agreement
dated March 2018 which Agreement contains certain minimum insurance
requirements to be carried by REH; and
Whereas, the City and REH desire to amend the lease to provide for such
insurances; and
WHEREAS, the City and REH entered in to a Facility Use Agreement dated
March 7, 2001 for the purpose of providing a subsidy to REH to secure public
availability of the Facility for the use of and performances by various community
groups and by the City which provided for an annual payment to REH; and
WHEREAS, the Facilities Use Agreement also provided that the City would
enter into a guarantee agreement with REH and a lender for certain refinancing in
an amount limited to $1,000,000 (One Million Dollars); and
WHEREAS, concurrent with this amendment, the Parties agree to terminate
that Facilities Use Agreement since the City has not needed to use the Facility
pursuant to the Agreement; and
WHEREAS, City wishes to provide for an ongoing annual contribution of
$420,000 for the purpose of maintenance and improvements to Premises to
include repairs, general maintenance, and asset and fixture replacement for the
Premises, for the purpose of assuring the continued high-quality maintenance of
the City owned Facility; and
WHEREAS, REH has and will continue to operate and maintain the Facility
and Premises for the benefit of the citizens of Clearwater, in consideration of which
the City and REH wish to amend the Lease to allow the City to enter into a
Guarantee Agreement if requested, with REH and a lender for the purposes of
financing, refinancing, renovation, modernization and expansion of the Premises
subject to the City's reasonable approval of the plans and proposals for any
renovation, modernization, and expansion; such guarantee to be unconditional but
limited to an amount not to exceed $1,000,000 (One Million Dollars) principal and
interest inclusive; and
NOW THEREFORE, it is agreed for the sum of One Hundred Dollars
($100) and other valuable considerations the receipt of which is hereby
acknowledged, as follows:
1. Recitals. The recitals set forth above are true and correct and are
incorporated herein by reference.
2. Paragraph 11 of the Lease is hereby amended to read as follows:
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11. Insurance. During the term hereof, RUTH ECKERD
HALL shall maintain fire and extended coverage insurance
on the Premises in an amount reasonably acceptable to City
as further described below. REH shall maintain contents
insurance upon its personal property located in the Premises.
As required in the Easement Agreement between
Clearwater Housing Authority, REH, and the City dated
March 19, 2018, during the term hereof, REH shall maintain
general liability insurance in the minimum amount of
$2,000,000 per occurrence, and $5,000,000 in the
aggregate, which amounts may be satisfied by an applicable
umbrella liability policy. Such insurance shall be effected
under valid and enforceable policies issued by financially
responsible insurers which are subject to the service of legal
process in the State of Florida and have a general
policyholders rating of A- or better and a financial
classification of VII or better, as classified and rated in the
edition of Best's Key Rating Guide of Property and Liability
Insurers most recently published by A. M. Best Company as
of the date of issue of such policy or with an equivalent
policyholders rating if the present rating and classification
system utilized by the A. M. Best Company shall be changed
or if such Key Rating Guide shall no longer be published.
Evidence of the initial policies or renewal policies, as the
case may be, required to be carried hereunder shall be
delivered to Clearwater Housing Authority upon execution of
this Agreement and thereafter not less than thirty (30) days
prior to the expiration date of the expiring policy. Such
insurance may be maintained under a blanket policy
covering other properties. Such policies may not, without
consent of Clearwater Housing Authority, include a
"deductible" or self-insured retention limit in excess of
$10,000. Such insurance shall name the City and Clearwater
Housing Authority and Clearwater Housing Authority's
mortgagee (if Clearwater Housing Authority notifies City of
the same) as additional insureds.
3. Paragraph 16 of the Lease, is amended to add paragraph (c) to
read as follows:
(c). The City will enter into a guarantee agreement in a form
reasonably acceptable to the City, with REH and a lender or
lenders pursuant to any financing, refinancing, renovation,
modernization, or expansion subject to the city's reasonable
approval of any such transaction. Such guarantee will be
unconditional but limited to a total amount of One Million
Dollars ($1,000,000) principal and interest inclusive. Under no
circumstance shall the City be obligated to enter into a
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guarantee agreement until any previous guarantee agreements
have been fully released. In the event REH defaults on any
financing or refinancing and the city is required to pay under
the terms of any Guarantee Agreement, the city will have no
further obligation to guarantee any additional financing or
refinancing.
4. Paragraph 25 of the Lease, is added to read as follows:
25. City contribution to Ruth Eckerd Hall Experience Premises
Improvements.
REH has requested and the City wishes to contribute certain funding for the
Project known as Ruth Eckerd Hall Experience described in Exhibit "B"
attached hereto and incorporated herein by reference, specifically those
Project elements described in Exhibit "C" attached hereto and incorporated
herein by reference.
The disbursement of, and any continued funding for the Project herein, is
subject to the following conditions precedent:
(a) Upon receipt of documentation establishing satisfaction of the
conditions precedent as required in by this paragraph, the City
agrees to reimburse to REH funds in the sum not to exceed Three
Million Dollars ($3,000,000.00), from legally available funds of the
City, for specific improvements and enhancements shown on
Exhibit C as follows:
i. Payments shall be made in payments of not
exceeding One Million Five Hundred Thousand Dollars and No
Cents ($1,500,000.00) during the City's 2018 fiscal year, One
Million Dollars and No Cents ($1,00,000.00) during the City's
2019 fiscal year and Five Hundred Thousand Dollars and No
Cents ($500,000.00) during the City's 2020 fiscal year.
ii. Upon receipt of a payment request from REH
to the City, the City shall make payment as provided herein.
With such documentation as required herein. At a
minimum, the payment request shall include
documentation detailing (i) the work completed that REH is
seeking reimbursement for; (ii) proof of payment for the
work; (iii) a certification: from the either the contractor,
design professional, or REH certifying the work has been
completed and paid for before submittal of the payment
request.
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(b) City's contributions of funds herein shall in no event exceed any
amount agreed to herein and any and all excess Project costs are
the sole responsibility of REH.
(c) The Capital Project Funds shall be paid in accordance with
section 218.70 et seq., Florida Statutes. The Local Government
Prompt Payment Act."
(d) the REH shall:
i. 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
operating the project/facility.
ii. Utilize all commercially reasonable efforts to complete
the Project within the Project Budget on an agreed
upon date, REH may elect to increase the Project
Budget or any component part thereof with notice to
the City and shall be solely responsible for the
additional costs and expenses, including any cost
overruns, on the Project.
(e) Each of the following shall constitute an event of default (each,
an "Event of Default") hereunder:
i. A breach by REH of any material term, covenant,
obligation or agreement under this Amendment, and
the continuance of such breach for a period of thirty
(30) days after written notice thereof shall have been
given to REH, which will entitle the City to immediately
exercise the available remedies;
ii. REH'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
is insolvent and unable to pay its debts when due;
iii. A payment request containing a material
misrepresentation;
iv. REH permanently ceases operations of the Capital
Proiect or Facility during the Term.
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v. REH fails to pay taxes and/or assessments, if anv,
when due.
(f) Upon or at any time after the occurrence of an Event of Default
which has not been cured if authorized herein:
i. The City may withhold, temporarily or permanently, anv
or all unpaid portion of the Project Funds and/or may
terminate this Agreement by giving thirty (30) calendar
days' notice to REH. At which point, the City shall then
have no further funding obligation under this
Agreement;
ii. Additionally, the City may exercise any right, power, or
remedy as provided in law or equity pursuant to Florida
law.
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.
5. Paragraph 26 of the Lease, is added to read as follows:
Annual Commitment by The City. City agrees to provide annual funding to
REH in the amount of Four Hundred Twenty Thousand Dollars ($420,000) for the
purpose of Premises maintenance and improvements to include repairs,
custodial labor, general maintenance, and asset and fixture replacements for the
Premises including the structures, parking, drive way, and landscaping etc. Such
contribution is subject to the terms and conditions of this section and applicable
provisions of the lease. If the City determines that sufficient funds will not be
available for such purposes in anv year or years, then prior to July 1 of each year
the City may by written notice to REH notify REH that no payment shall be made
during such fiscal year. REH shall have the option to submit supplemental
information or proposals to the City for consideration at the City's budget
hearings. Anything herein to the contrary notwithstanding, should the City give
such notice with respect to particular fiscal year, the same shall not terminate this
provision except as to the particular fiscal year with respect to which notice is
given. In May of each year commencing in 2019, REH provide an annual report
in writing to the City outlining the use of the City funds provided.
6. Paragraph 27 is added to read as follows:
This Lease is not a general obligation of the City. It is understood that neither
this Lease nor any representation by any City employee or officer creates any
obligation to appropriate or make monies available for the purpose of the Lease
[GM 18-1801-136/215855/1 ]
beyond the fiscal year in which this Lease is executed. No liability shall be incurred
by the City, or any department, beyond the monies budgeted and available for this
purpose. If funds are not appropriated by the City for any or all of this Lease, the
City shall not be obligated to pay any sums provided pursuant to this Leasebeyond
the portion for which funds are appropriated. The City agrees to promptly notify
REH 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 REH
in writing of such failure of appropriation.
(a) The Parties agree that REH 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. REH agrees to take such steps
as may be necessary to ensure that any third -party REH
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) REH 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.
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 Toss of business arising out of this funding 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.
7. All other terms and conditions of the Lease and amendments shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
COUNTERSIGNED: CITY OF CLEARWATER
[GM18-1801-136/215855/1]
SECOND AMENDMENT TO LEASE AGREEMENT RUTH ECKERD HALL
COUNTERSIGNED:
By: —6t?Ay1CfAekos
George N. Cretekos
Mayor
APPROVED AST FORM:
By:
Pamela K. in
City Attorney
ATTEST:
By: GL) dia
Name:
[GM 18-1801-136/215855/1]
By:
CITY OF CLEARWATER
By: 1,044A. 4
William B. Horne, II
City Manager
ATTEST:
Rosemarie CaII
City Clerk
RUTH ECKERD HALL, INC.
By:
= ArE uffman
'resident and CEO
i"ier
LEGAL DESCRIPTION
EXHIBIT "A"
A PARCEL OF LAND LYING IN THE SOUTH 1/2 OF THE NORTH 1/2 OF SECTION 9
TOWNSHIP 29 SOUTH, RANGE 16 EAST, PINELLAS COUNTY, FLORIDA, AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 9
TOWNSHIP 29 SOUTH RANGE 16 EAST PINELLAS COUNTY FLORIDA; THENCE
SOUTH 89°21'05" EAST, ALONG THE NORTH LINE OF DEL ORO GROVES, AS
RECORDED 1N PLAT BOOK 12, PAGE 2, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA, A DISTANCE OF 477.16 FEET TO THE SOUTHWEST CORNER OF
LOT 21, .DEL ORO GROVES FIRST ADDITION, AS RECORDED IN PLAT BOOK 69,
PAGE 56 AND 57 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE ALONG THE WEST AND NORTH LINES OF SAID DEL ORO GROVES FIRST
Addition THE FOLLOWING TEN (10) COURSES AND DISTANCES: 1. NORTH 00°16'15"
EAST, 519.23 FEET: 2. SOUTH 89°19'45" EAST 118.80 FEET; 3. NORTH 00°29'45" WEST
79.68 FEET; 4. SOUTH 89°09'15" EAST 245.08 FEET: 5. NORTH 00°05'45" EAST, 129.43
FEET; 6. SOUTH 89°34'15" EAST, 60.45 FEET: 7. NORTH 00°10'15" WEST, 301.98 FEET; 8.
SOUTH 89°17'15" EAST, 498.69 FEET: 9. NORTH 81°25'06"
EAST, 479.63 FEET; 10. SOUTH 89°49'15" EAST, 251.76 FEET TO A POINT ON THE
WEST LINE OF
LOT 25, DEL ORO HEIGHTS, AS RECORDED IN PLAT BOOK 54. PAGE 12, OF THE
PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE ALONG THE WEST
LINE OF SAID DEL ORO HEIGHTS SUBDIVISION, NORTH 00°04'50" EAST A
DISTANCE OF 221.17 FEET TO THE NORTH LINE OF THE SOUTH 1/2 OF THE NORTH
1/2 OF SAID SECTION 9; THENCE NORTH 89°17'04" WEST ALONG SAID LINE, A
DISTANCE OF 1514.66 FEET; THENCE LEAVING SAID LINE SOUTH 00°07'43" WEST A
DISTANCE OF 64.54 FEET; THENCE NORTH 89°21'08" WEST A DISTANCE OF 320.00
FEET; THENCE SOUTH 00°07'43" WEST, A DISTANCE OF 50.00 FEET; THENCE NORTH
89°21'08" WEST A DISTANCE OF 290.00 FEET; THENCE SOUTH 00°07'34" WEST A
DISTANCE OF 117 FEET MORE OR LESS TO THE CENTER OF ALLIGATOR CREEK,
SAID POINT TO BE KNOWN AS POINT "A" FOR CONVENIENCE; RETURN THENCE
TO THE POINT OF BEGINNING; THENCE NORTH 89°21'05" WEST ALONG THE
NORTH LINE OF DEL ORO ESTATES, AS RECORDED IN PLAT BOOK 46, PAGE 29, OF
THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, A DISTANCE OF 695.52
FEET; THENCE NORTH 00°07'00" EAST A DISTANCE OF 610.82 FEET; THENCE
NORTH 89°18'29" WEST A DISTANCE OF 590.03 FEET TO THE EASTERLY RIGHT-OF-
WAY LINE OF MCMULLEN BOOTH ROAD (S.R. 593) (A 100' R/W); THENCE NORTH
00°07'00" EAST ALONG SAID R/W LINE. A DISTANCE OF 60.00 FEET TO THE
SOUTHWEST CORNER OF KAPOK MANOR CONDOMINIUM VILLAGE ONE, AS
RECORDED IN CONDOMINIUM PLAT BOOK 22, PAGES 48 THROUGH 51, INCLUSIVE,
OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE SOUTH
89°18'29" EAST ALONG THE SOUTH LINE OF SAID CONDOMINIUM AND THE SOUTH
LINE OF ONE KAPOK TERRACE, A CONDOMINIUM PHASE VI, AS RECORDED IN
CONDOMINIUM PLAT BOOK 102. PAGES 8 THRU 10, INCLUSIVE, OF THE PUBLIC
RECORDS OF PINELLAS COUNTY, FLORIDA. A DISTANCE OF 1135.68 FEET; THENCE
NORTH 00°07'00" EAST, A DISTANCE OF 60.00 FEET; THENCE NORTH 66°27'06"
WEST, ALONG THE NORTHERLY LINE OF THE UNRECORDED ONE KAPOK
TERRACE A CONDOMINIUM, PHASE VI 1, A DISTANCE OF 267.83 FEET; THENCE
NORTH 00°07'34" EAST, A DISTANCE OF 140 FEET MORE OR LESS TO THE
CENTERLINE OF ALLIGATOR CREEK; THENCE EASTERLY AND NORTHERLY
ALONG THE CENTERLINE OF ALLIGATOR CREEK AS IT WINDS AND TURNS TO
THE AFOREMENTIONED POINT "A".
EXHIBIT "B"
RUTH ECKERD HALL
REH is a donor -funded, nonprofit performing arts center and education institute. The facility, owned by the
City of Clearwater, opened in 1983 and sits on a 34 -acre campus, was designed by the Frank Lloyd Wright
Foundation. REH is known for its 2,180 -seat auditorium and in 1992, it became the first performing arts center
in Florida to be designated a major cultural institution by the State. Artists from U.S. and around the world,
ranging from classical, rock, opera, Broadway, jazz, and pop, among others, comprise the annual line up of
more than 300 performances, serving over 750,000 patrons.
Compared to other performing arts centers, REH is special — it is an established institution in the State of
Florida and has drawn millions of visitors and performers from around the world for several decades. It is well
run and has made significant efforts to be a high performing asset for the City of Clearwater and the Tampa
Bay region. Its proximity to Hillsborough and Pasco County, with outstanding road access, allows it to draw
visitors from a wide regional catchment.
REH established The Marcia P. Hoffman School of the Arts in 2003 and has since served more than 2.0 million
students and adults. The School includes the 182 -seat Murray Studio Theater, which is utilized for productions
that work well in intimate settings and for smaller audiences, as well as master classes.
RUTH ECKERD HALL EXPERIENCE EXPANSION
Over the past three years, significant progress has been made towards improving the City owned REH facility.
The final priority relates to the renovation and expansion of all patron service areas within the main facility,
which houses the Main auditorium and 80 percent of all entertainment and food and beverage offerings, and
will occur in two phases:
• PHASE 1 will address renovation of the Margarete Heye Great Room, the kitchen that currently
supports all REH catering functions, and the Terrace adjacent to the Great Room. Grant funds will be
used for this project.
• PHASE 2 will address the Lobby and patron service areas associated with the main auditorium.
Construction of Phase 2 will begin upon the conclusion of Phase 1 and there is a visible need for the
Phase 2 improvements. The building is nearly 33 years old, and as is playing to larger audiences than
ever, selling more meals than ever, and providing parking to more vehicles. These must be made to the
City owned facility in order to maintain REH's competitive position in the marketplace and ensure its
ongoing success.
Exhibit C
Penny IV -Eligible Projects in Ruth Eckerd Hall's
"Expanding the Experience" Capital Campaign
Roadway/Parking Phase — ($2.4 MM project -City Portion $1 MM)
• Improvements to existing roadway, storm water drainage system, sidewalks and main
parking lot, including construction of initial portions of retaining walls, walks, plaza and
ramps
Murray Theatre Phase — ($1.5 MM project -City Portion $1 MM)
• Renovation of REH's Murray Theatre, a learning laboratory for students in REH's education
programs, and intimate performance venue
Margarete Heye Great Room Phase — ($1.5 MM- City Portion $1 MM)
• Renovation of the Margarete Heye Great Room, REH's primary rental space for community
events and location of pre -show meals