AMENDMENT TO FUNDING AGREEMENT BETWEEN POLK COUNTY AND THE CENTRAL FLORIDA DEVELOPMENT COUNCIL, INC. (CFDC)

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1 AMENDMENT TO FUNDING AGREEMENT BETWEEN POLK COUNTY AND THE CENTRAL FLORIDA DEVELOPMENT COUNCIL, INC. (CFDC) THIS AMENDMENT TO FUNDING AGREEMENT (the Agreement ) is made and entered into this day of, 2013 between POLK COUNTY, a political subdivision of the State of Florida, whose address is 330 West Church St., Bartow, Florida (hereinafter the COUNTY ) and the CENTRAL FLORIDA DEVELOPMENT COUNCIL, INC., a Florida Non-Profit Corporation, whose address is 2701 Lake Myrtle Park Road, Auburndale, Florida (hereinafter CFDC ). WITNESSETH: WHEREAS, the COUNTY and CFDC entered into a Funding Agreement on January 6, 2010 (the Funding Agreement ) which called for the COUNTY to provide funding to the CFDC over a period of years from 2008 through 2011 in the total amount of Five Million Dollars ($5,000,000.00) to enable the CFDC to provide a challenge pledge for economic development purposes to the University of South Florida Foundation, Inc. (the Foundation ); and WHEREAS, the Funding Agreement provided that the funds were to be used exclusively for the design, permitting and construction of an academic facility for the Sports Education and Wellness programs including but not limited to an Aquatic Center and related infrastructure on the Polytechnic Campus of the University of South Florida Lakeland which was proposed to be located on lands to be donated by the Williams Companies at the intersection of Interstate I-4 and the Polk Parkway; and WHEREAS, the Funding Agreement included conditions calling for a separate gift agreement to be entered into between the CFDC and the Foundation and the University of South Florida, which gift agreement was entered into between those parties on March 31, 2010 (the Gift Agreement ); and WHEREAS, the terms of the Funding Agreement also required that matching grants funds be applied for and obtained so that at least a 3 for 1 match was realized; and WHEREAS, the terms of the Funding Agreement also required that grants be obtained from the Alec P. Courtelis Facility Enhancement Challenge Grant Program or equivalent programs with the funds being used exclusively for the Sports Education and Wellness programs; including, without limitation, an Aquatic Center and related infrastructure; and 1

2 WHEREAS, the terms of the Funding Agreement also provided that if by December 31, 2015 that project was not funded with the required 3 for 1 match that the CFDC shall immediately demand the return of the donated $5 million dollars, which funds would then be returned by the CFDC to the COUNTY; and WHEREAS, the COUNTY performed all obligations pursuant to the Funding Agreement by paying to the CFDC the amounts of $100,000 by December 2008, $1.7 million dollars by the end of 2009, $1.7 million dollars by the end of 2010 and $1.5 million dollars by the end of 2011 for a total of $5 million dollars; and WHEREAS, the CFDC, pursuant to the terms of the Gift Agreement, paid those funds over to the Foundation; and WHEREAS, pursuant to legislation in 2012, the Florida Polytechnic University ( FPU ) was created and the University of South Florida Board of Trustees and the University of South Florida Foundation were required to develop a plan to transfer assets and donations that had been intended for the development of the USF Polytechnic campus to the new organization serving the Florida Polytechnic University; and WHEREAS, pursuant to Sections and , Florida Statutes (2012), Florida Polytechnic University established the Florida Polytechnic University Foundation, Inc. (the FPU Foundation ); and WHEREAS, the CFDC and the COUNTY wish to amend the Funding Agreement to provide for transfer of the $5 million dollars from the University of South Florida Foundation, Inc. to the FPU Foundation and to otherwise amend and modify the Funding Agreement. NOW, THEREFORE, in consideration of the mutual benefits to be derived from construction and development of the FPU campus, and the mutual promises made herein, the COUNTY and CFDC do hereby agree as follows: 1. RECITALS. The above Recitals are true, correct and form a material part of this Agreement, and are hereby incorporated by reference and made a part hereof. 2. FUNDING. Paragraph 2 of the Funding Agreement is hereby amended to read as follows: Polk County has performed all obligations of the Funding Agreement by having paid in full required contributions totaling $5 million dollars to the CFDC by the end of calendar year

3 3. PURPOSE OF THE FUNDING. Paragraph 3 of the Funding Agreement is amended to read as follows: The purpose of the gift of $5 million dollars previously made to CFDC by the COUNTY, which in turn was donated by CFDC to the University of South Florida Foundation, is to benefit the Florida Polytechnic University with respect to its efforts to develop and/or finance a student services center and/or residential facility, whether constructed as stand-alone facilities or a combined facility (the Approved Purpose ). FPU is not required to seek further approval from the COUNTY or CFDC should the gift be utilized for the Approved Purpose. Should FPU propose to CFDC, in accordance with the terms of the Gift Agreement, to utilize the gift for a public purpose other than the Approved Purpose (a New Public Purpose ), CFDC shall first obtain written confirmation from the County Manager for Polk County that the New Public Purpose is an appropriate public purpose, prior to approving FPU s proposal. The fund name in the FPU Foundation will be the Florida Polytechnic University Assistance Fund. 4. CONDITIONS OF FUNDING. Paragraph 4 of the Funding Agreement is amended to read as follows: The desire of the parties is for the FPU Foundation to take possession of the Gift and to apply for an Alec P. Courtelis Facility Enhancement Challenge Grant ( Grant ) from the Board of Governors. However, the parties recognize that the Board of Governors of the State University System of Florida has not been granting matches to contributions for grants to State University programs and may or may not be doing so in the future. As such, the parties agree that the receipt of a matching Grant specifically does not constitute a condition of the Agreement. Additionally, the parties hereto agree to remove the original condition that required a 3 to 1 match to be funded on or before December 31, 2015 and a return of all funds in the event that match funding was not realized. As modified, neither the receipt of a Grant nor the deposit of the remaining funds necessary to construct the student services center shall constitute a condition of the granting of the gift. 5. CFDC FULFILLED ITS OBLIGATIONS. The COUNTY acknowledges that CFDC has satisfied and fulfilled its obligations under the Funding Agreement. 3

4 6. ASSIGNMENT. Paragraph 6 of the Funding Agreement is amended to read as follows: The parties hereto agree and consent to the assignment of the rights and agreements of the Gift Agreement from the University of South Florida and the University of South Florida Foundation, Inc. to the Florida Polytechnic University and/or the Florida Polytechnic University Foundation, Inc. Except as expressly stated herein, any assignment of this Amended Funding Agreement shall require prior written consent of the parties hereto. 7. ADDITIONAL TERMS AND CONDITIONS. All additional terms and conditions of the Funding Agreement between the COUNTY and the CFDC shall remain in full force and effect and shall bind the parties hereto, their successors and assigns. 8. EFFECTIVE DATE. This Agreement shall become effective on the date upon which the Agreement has been properly executed by all of the parties. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement effective the date first written above. ATTEST: Stacy M. Butterfield, Clerk By: Deputy Clerk POLK COUNTY, a political subdivision of the State of Florida, by and through its Board of County Commissioners By: Melony M. Bell, Chairman Approved as to form and legal sufficiency: County Attorneys Office 4

5 ATTEST: CENTRAL FLORIDA DEVELOPMENT COUNCIL, INC., a Florida Non-Profit Corporation By: Print Name: As its: 5