HomeMy WebLinkAbout2001-071 4
RESOLUTION NO. 2001- 071
A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA PROVIDING FOR
THE APPROVAL OF THE FORM OF AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A COLLATERAL DEVELOPMENT AGREEMENT AND
DECLARATION OF EASEMENTS FOR PARKING IN CONNECTION WITH THE
ACQUISITION OF CERTAIN REAL PROPERTY KNOWN AS DODGERTOWN;
AUTHORIZING OTHER REQUIRED ACTIONS; PROVIDING FOR
SEVERABILITY AND AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN
RIVER COUNTY, FLORIDA:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant
to the provisions of Chapter 125,Florida Statutes,County Home Rule Ordinance No.95-16,enacted July
18, 1995, as amended, and other applicable provisions of law.
SECTION 2. FINDINGS. It is hereby found and determined that:
A. The County Commission approved and executed that certain Memorandum of
Understanding dated as of July 24,2000(the"Memorandum of Understanding"),by and among
the County,the City of Vero Beach,Florida(the"City"),Los Angeles Dodgers,Inc. ("Dodgers"),
Fox Baseball Holdings Incorporated ("Fox") and de Guardiola Development, Inc. (the
"Developer"),which Memorandum of Understanding required the County to approve additional
documents.
B. Certain of the additional documents required by the Memorandum of
Understanding were approved by the County in Resolution No.2000-099,adopted September
7,2000.
C. The County Commission in Resolution No. 2000-099, approved and there-
after executed that certain Document Escrow Agreement dated as of September 1,2000,among
the County,the City,Dodgers,Fox,the Developer and Bryant,Miller and Olive,P.A.,as escrow
agent(the"Escrow Agent"),as amended by that certain Agreement to Extend Escrow dated May
15,2001 (collectively,the"Document Escrow Agreement"),approved by Resolution No.2001-
053.
1
D. Certain additional documents required by the Memorandum of Understanding
and the Document Escrow Agreement have been prepared and submitted to the County for
approval.
E. The parties to the Document Escrow Agreement, other than the County have
each indicated that all conditions precedent to the release of the documents held by the
Escrow Agent pursuant to the Document Escrow Agreement have either been satisfied or
waived and upon approval of the additional documents by this Resolution, the conditions to
the release of all such documents by the Escrow Agent will have been satisfied.
SECTION 3. APPROVAL OF THE COLLATERAL DEVELOPMENT AGREEMENT.
The Collateral Development Agreement in substantially the form attached hereto as Exhibit A is
hereby approved and the Chairman or Vice-Chairman and the Clerk are hereby authorized and
directed to execute and deliver the consent to the Collateral Development Agreement on behalf of
and in the name of the County, with such additional changes, insertions and omissions therein as may
be otherwise made and approved by said officers of the County executing the same, such execution
to be conclusive evidence of such approval.
SECTION 4. APPROVAL OF THE DECLARATION OF EASEMENTS FOR PARKING.
The Declaration of Easements for Parking in substantially the form attached hereto as Exhibit B is
hereby approved and the Chairman or Vice-Chairman and the Clerk are hereby authorized and
directed to execute and deliver the Declaration of Easements for Parking on behalf of and in the name
of the County, with such additional changes, insertions and omissions therein as may be otherwise
made and approved by said officers of the County executing the same, such execution to be
conclusive evidence of such approval.
SECTION 5. APPROVAL OF WAIVER AND ACKNOWLEDGMENT. The Waiver and
Acknowledgment in substantially the form attached hereto as Exhibit C is hereby approved and the
Chairman or Vice-Chairman and the Clerk are hereby authorized and directed to execute and deliver
the Waiver and Acknowledgment on behalf of and in the name of the County, with such additional
changes, insertions and omissions therein as may be otherwise made and approval of said officers of
the County executing the same, such execution to be conclusive evidence of such approval.
SECTION 6. GENERAL AUTHORITY. The Chairman or Vice-Chairman, the County
Administrator, the County Attorney, the Clerk and any other proper officials of the County are hereby
authorized to do all acts and things required of them by this Resolution or that may otherwise be
desirable or consistent with accomplishing the full, punctual and complete performance of all the
terms, covenants and agreements contained in any of the foregoing and the County is hereby
authorized and directed to execute and deliver any and all papers and instruments and to cause to be
done any and all acts and things necessary or proper for carrying out the transactions contemplated
thereby.
2
■
SECTION 7. SEVERABILITY AND INVALID PROVISIONS. If any one or more of the
covenants, agreements or provisions herein contained shall be held contrary to any express provision
of law or contrary to the policy of express law, but not expressly prohibited or against public policy,
or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions
shall be null and void and shall be deemed separable from the remaining covenants, agreements or
provisions and shall in no way effect the validity of the other provisions hereof.
SECTION 8. EFFECTIVE DATE. This Resolution shall be effective immediately upon its
adoption.
Adopted this 7th day of August, 2001.
BOARD OF COUNTY COMMISSIONERS
OF INDIAN RIVER COUNTY, FLORIDA
By:
As: Chairman
Attest:
Cler c
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
pecial County Attorney
3
ENHIBIT A
FORM OF COLLATERAL DEVELOPMENT AGREEMENT
t
PREPARED BY: RESERVED FOR USE BY
Eric D. Rapkin, Esq. CLERK OF CIRCUIT COURT
Hughes Hubbard & Reed LLP
201 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131
RECORD AND RETURN TO:
Robert C. Reid, Esq.
Bryant, Miller and Olive, P.A.
201 South Monroe Street, Suite 500
Tallahassee, Florida 32301
COLLATERAL DEVELOPMENT AGREEMENT
This Collateral Development Agreement (the "Agreement") is entered into as of August
2001, by and between Los Angeles Dodgers, Inc., a Delaware corporation, with its principal
place of business located at 1000 Elysian Park Avenue, Los Angeles, California 90012 ("Dodgers"),
and Vero Acquisition, LLLP, a Florida limited liability limited partnership, with its principal place
of business located at 3801 PGA Boulevard, Suite 555, Palm Beach Gardens, Florida 33410
("Developer").
RECITALS
A. Dodgers own and control the sports and entertainment venue located in Los
Angeles, California, and known as "Dodger Stadium," the Major League Baseball team known
as the "Los Angeles Dodgers" (the "Team"), and, subject to the MLB Documents and the Rules
of Major League Baseball (as defined below), all rights, title, and interest in and to the names,
trademarks, service marks, trade names, insignia, symbols, logos, decorative designs, trade dress,
uniform designs, or other identifications associated with Dodger Stadium and the Team
(collectively, the "Dodgers' Marks").
B. Since 1949, Dodgers have owned and operated the spring training facility located
in Vero Beach, Florida, and known generally as "Dodgertown."
C. Pursuant to that certain Warranty Deed of even date herewith, Indian River
County, Florida (the "County") has purchased from Dodgers that portion of Dodgertown which
encompasses the baseball fields and facilities, office buildings, and conference facilities located
on the premises (collectively, the "Baseball Facilities"). Dodgers, in turn, have leased the
Baseball Facilities back from the County and have agreed to renovate certain portions of the
Page 1 of 19
726coua.aoc
Baseball Facilities. The Baseball Facilities are described with particularity in Exhibit "A,"
which is attached hereto and incorporated herein by this reference.
D. Pursuant to those certain Warranty Deeds of even date herewith, Fox Baseball
Holdings, Inc. ("Fox") and Dodgers have sold to Developer the approximately acre
nine-hole golf course immediately adjacent to the western boundary of the Baseball Facilities
and the approximately acres of land adjacent to the northern boundary of the Baseball
Facilities (the combined acreage to be referred to hereafter as the "Adjacent Land"). In turn,
Developer has agreed to develop the Adjacent Land by constructing thereon a mixed-use "mini-
town" containing, inter alfa, residential, retail, restaurant, and entertainment facilities
(hereinafter collectively referred to as the "Collateral Development"). The Adjacent Land is
described with particularity in Exhibit `B," which is attached hereto and incorporated herein by
this reference. For purposes of this Agreement, any reference to "Developer" in this Agreement
shall be deemed to include, without limitation, Developer's heirs, successors and assigns. A
conceptual master plan showing the Collateral Development (subject to change as hereinafter
provided) is shown on Exhibit"C," attached hereto and incorporated herein by this reference.
E. Pursuant to the Facility Lease Agreement, dated as of September 1, 2000,
between Dodgers and the County, the County has leased the Baseball Facilities to Dodgers for an
initial term of twenty (20) years (subject to renewal options set forth therein). The Facility Lease
Agreement has been recorded among the Public Records of the County prior to the recordation
of this Agreement.
F. Developer shall develop the Adjacent Land and construct the Collateral
Development, through final completion thereof, in accordance with the protective covenants,
conditions, restrictions, and easements, set forth in this Agreement, all of which covenants,
conditions, restrictions, and easements shall run with the Adjacent Land.
COVENANTS AND REPRESENTATIONS
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual promises,
covenants, conditions, warranties, and representations set forth herein, and such other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Dodgers
and Developer hereby agree as follows:
Section 1. Plan for Collateral Development
(A) Covenants Running with the Land: Dodgers and Developer declare and agree that
the Adjacent Land and the Collateral Development shall be developed, constructed, held, sold,
conveyed, encumbered, hypothecated, leased, used, occupied, and improved subject to all of the
agreements, easements, restrictions, covenants, and conditions set forth in this Agreement, all of
which are essential for the purpose of protecting the value and desirability of the Baseball
Facilities and the Collateral Development. The agreements, covenants, conditions, restrictions,
and easements set forth herein (1) shall run with the title to the Adjacent Land and shall be
binding upon and inure to the benefit of Developer, its successors and assigns; and (2) shall run
Page 2 of 19
726colla.doc
t
with the title to the Baseball Facilities and shall be binding upon and inure to the benefit of
Dodgers, their successors and assigns.
(B) Master Plan: Upon taking possession of the Adjacent Land, Developer, at no cost
to Dodgers, shall diligently undertake and complete the development of the Collateral
Development as described in Recital D, above, in accordance with a "Master Plan" to be
submitted by Developer for the prior review and approval of Dodgers. Once the Master Plan has
been approved by Dodgers, Developer shall not materially change or materially deviate from the
Master Plan without the prior written consent of Dodgers, which shall not be unreasonably
withheld. Dodgers hereby acknowledge and agree that a Master Plan based upon the conceptual
master plan attached as Exhibit "C" would be acceptable as the Master Plan.
If changes are required to be made to the scope of the Collateral Development as a result
of (1) the operation of section 1(C) below, or (2) site plan or other permitting approval
conditions imposed by the City of Vero Beach, Florida (the "City") or by any other applicable
governmental authorities, or (3) economic conditions which make the Collateral Development
unfeasible or financially impracticable, the Developer shall nevertheless be required to complete
the Collateral Development with such changes to the scope of the Collateral Development as
may be necessary to satisfy any or all of the aforementioned conditions. Any resulting material
changes in the Master Plan shall be subject to approval by the Dodgers as provided above.
(C) Hotel: As soon as reasonably practicable after gaining possession of the Adjacent
Land, Developer shall undertake to obtain a nationally recognized, high quality Hotel
developer/operator to construct, on or about the northern portion of the western parcel of the
Adjacent Land, the "Hotel" described in Recital D, above. The Hotel shall be situated on the
Adjacent Land in a manner which will enable the Hotel's personnel, guests, and conferees to
have direct access to the Baseball Facilities and which will give Dodgers' personnel direct access
to the Hotel. Dodgers' approval of a site plan for the Hotel shall constitute compliance by
Developer with the requirements of the foregoing sentence. It is the intention of the parties that,
during each spring training period throughout the Term, Dodgers' personnel will have access to
the shops and dining facilities in the Hotel, and that, at times other than spring training, certain
portions of the Baseball Facilities will be used in connection with the Hotel. The terms and
conditions pursuant to which the aforementioned access will be given to the parties shall
hereafter be determined by mutual agreement of the parties. The Hotel shall be affiliated with
and managed by a nationally recognized, high quality Hotel operator or chain. If, after making
its best efforts to obtain a hotel developer/operator to construct the Hotel, Developer is unable to
obtain a hotel developer/operator within two (2) years after the date hereof, and, therefore, will
not build the Hotel, Developer shall give Dodgers written notice of its decision not to build the
Hotel and shall thereafter be relieved of any obligation hereunder to build the Hotel.
(D) Compliance with Laws: The Adjacent Land shall be developed, and the
Collateral Development shall be constructed, occupied, used, and held by Developer in
accordance with this Agreement, and all applicable present and future laws, ordinances, codes,
rules, and regulations of all applicable governmental authorities, including, without limitation,
zoning, building, environmental, health, disabilities access, and fire codes, and the Rules of
Major League Baseball (collectively, the "Legal Requirements").
Page 3 of 19
726colla.doc
(E) Prohibited Activities: Notwithstanding any other provision contained in this
Agreement, Developer shall not assign, lease, sell, transfer, use, or make available in any way to
any person and/or entity engaged in any of the activities described below, any space, whether
business or residential, in or on the Adjacent Land and/or within the Collateral Development:
(1) The sale, display and/or distribution of any products and/or services which
involve nude performances or services (including, without limitation, establishments with
nude or partially nude waiters, waitresses, and dancers, and massage parlors), the sale,
display, or dissemination of pornography (including, without limitation, by means of adult
bookstores, telephone services, and/or on-line interactive services), any activities involving
graphic violence, any activity involving any form of racial, sexual, and/or religious
discrimination, and/or the sale, display, distribution, or dissemination of any materials or
editorial content which would be deemed lewd, immoral, tasteless, lascivious, grotesque
and/or offensive by a reasonable segment of the population in the community of Vero
Beach, Florida, and/or would undermine the character, reputation, and/or goodwill of
Dodgers or their standing in the community.
(2) Any activities which involve gambling, including, without limitation,
casinos, off-track betting, sports books, and bingo parlors. With respect to the Florida State
Lottery, or any other state-run lottery, Developer shall abide by the Rules of Major League
Baseball, including, without limitation, the memoranda of March 6, 1985, November 18,
1985,November 14, 1990, and March 6, 1995, as amended and supplemented.
(F) Maintenance and Repair Obligations of Developer: Developer, at no cost to
Dodgers, and subject to the provisions of this Agreement regarding architectural approval, shall
be responsible for maintaining, repairing, replacing, and restoring the Adjacent Land and the
Collateral Development, including, without limitation, all "Improvements" (as defined in
Section 2(A), below), in a neat, sanitary, attractive, and functional condition.
Section 2. Architectural Review and Approval
(A) Architectural Review and Approval: It is the intention of the parties that the
ambiance and tradition of Dodgertown be incorporated into the Collateral Development in such a
way as to create a uniform look and feel for both the Collateral Development and the Baseball
Facilities. Toward that end, Developer agrees that the architectural design of all improvements
constructed on the Adjacent Land in connection with the Collateral Development shall be
compatible with the design and construction of the Baseball Facilities and the ambiance and
tradition which have defined Dodgertown for the past fifty years. Accordingly, no improvement,
structure, or other artificially created condition of any type and kind, including, without
limitation, all buildings, out-buildings, walkways, roads, streets, driveways, parking areas,
fences, screening walls, landscaping, hedges, plantings, planted trees and shrubs, poles, street
signs, building signs, and any other signs (hereinafter referred to as the"Improvements"), shall
be constructed, erected, maintained, altered in any manner, or replaced on the Adjacent Land,
until Dodgers have reviewed and approved the "Site Plan Application" to be submitted by
Developer to the City as part of the permitting process. The Site Plan Application shall include,
Page 4 of 19
726colla.doc
at a minimum: schematic drawings, building elevations (front and side and including roof) and
fenestration of the Improvements; location, size, and type of landscaping; hardscape and lighting
package; and colors of the Improvements.
(1) As soon as reasonably possible after the execution of this Agreement, the
parties shall prepare a "Pattern Book" which shall serve as the design guidelines for all
Improvements to be constructed in connection with the Collateral Development. The
Pattern Book shall establish the design standards by which Dodgers' shall approve
Developer's Site Plan Applications.
(2) Developer shall submit each Site Plan Application to Dodgers not less than
seven(7) days before submitting the Site Plan Application to the City. Dodgers shall
approve or disapprove the Site Plan Application within seven(7) days after Dodgers'
receipt of Developer's request for approval. Dodgers shall be deemed to have disapproved
the request if their approval has not been given within the aforementioned time. If Dodgers
disapprove a Site Plan Application, Dodgers shall notify Developer in writing as to the basis
for their disapproval and the reasons why, in Dodgers' opinion, the proposed Site Plan
Application deviates from the guidelines established by the Pattern Book. If Dodgers are
deemed to have disapproved a Site Plan Application, Dodgers shall provide Developer with
such basis and reasons promptly after request by Developer.
(3) Any change proposed by Developer in connection with any previously
approved Site Plan Application shall be submitted to Dodgers in writing for approval and
shall not be implemented without the prior written approval of Dodgers.
(4) Dodgers' approval of a Site Plan Application or any modification thereof
will not be unreasonably withheld or delayed, except as it pertains to the use of the
Dodgers Marks, in which case Dodgers may exercise their sole and absolute discretion in
granting or denying their approval.
(5) Dodgers' approval of any Site Plan Application, or in connection with any
other matter requiring the approval and consent of Dodgers, shall not be deemed to
constitute a waiver of any right to withhold approval or consent as to any other Site Plan
Application subsequently or additionally submitted for approval or consent.
(B) Inspection of Work: During the course of construction of any portion of the
Collateral Development, Dodgers or their duly authorized representative shall have the right to
inspect the work in progress to ascertain whether the work is being effected in substantial
compliance with the approved Site Plan Application, and the Dodgers may notify Developer in
writing of any such noncompliance by Developer, whereupon Developer shall immediately
undertake to remedy such noncompliance. In addition, regardless of whether Dodgers have
undertaken any inspection during the course of construction, upon Developer's completion of
any work for which an approved Site Plan Application is required under this Agreement,
Developer shall give written notice of completion to Dodgers. Within ten(10) business days
thereafter, Dodgers or their duly authorized representative may inspect the work. If Dodgers find
that the work was not effected in substantial compliance with the approved Site Plan
Page 5 of 19
726colla.doc
t �
Application, Dodgers shall promptly notify Developer in writing of such noncompliance, and
Developer shall immediately undertake to remedy the noncompliance. If Dodgers fail to provide
notice of noncompliance within ten (10) business days after their receipt of Developer's notice of
completion, then the work shall be deemed to have been effected in accordance with the
approved Site Plan Application.
(C) Standard of Review: Dodgers shall review and approve or disapprove all Site
Plan Applications, and any alterations or additions thereto, solely on the basis of the guidelines
set forth in the Pattern Book and/or any material detriment which would result to the Baseball
Facilities. Dodgers shall not be responsible for reviewing, nor shall their approval of any Site
Plan Application or any modification thereof be deemed an approval of, any plan or design from
the standpoint of structural safety or conformance with Legal Requirements.
Section 3. Non-Liability of Dodgers
Neither Dodgers nor any owner, shareholder, director, officer, employee, representative,
agent or assign of Dodgers shall be liable to Developer or any other person or entity for any loss,
damage, or injury arising out of or in any way connected with any Improvements approved by
Dodgers and/or the performance by Dodgers of their duties hereunder, unless such damage or
injury is caused directly by the willful misconduct of Dodgers.
Section 4. Regulations of Operation and Uses
(A) Cooperative Development: It is the intention of the parties that the operation and
use of the Baseball Facilities and the Collateral Development will be carried on in a cooperative
manner and for the mutual benefit of the parties hereto.
(B) ging Training Games: Pursuant to the Facility Lease Agreement referenced
above, Dodgers (subject to the conditions and limitations set forth in the Facility Lease
Agreement) are required to cause the Team to play at least ten (10) Spring Training Home
Games (as such term is defined in the Facility Lease Agreement) at the Baseball Facilities during
each Lease Year of the Term of the Facility Lease Agreement (as such terms are defined in the
Facility Lease Agreement). Dodgers hereby agree that such covenant to play at least ten (10)
Spring Training Home Games at the Baseball Facilities per Lease Year is also deemed to be a
covenant in favor of Developer, but subject to the conditions and limitations set forth in the
Facility Lease Agreement and, if applicable, Dodgers' inability to play such games because of an
"Event of Force Majeure" (as defined in Section 7(A), below).
(C) Uses at Collateral Development: As a general (but not exclusive) standard, and in
accordance with Section 1(E), above, it is intended that the specific uses to be engaged in at the
Collateral Development reflect high quality, family-style uses as would customarily be found in
family-oriented, mixed-use developments.
(D) Nuisances. No noxious or offensive activity shall be carried on in or on any
portion of the Adjacent Land or the Collateral Development. No portion of the Adjacent Land
will be used for or in connection with any unlawful or illegal business, use, or purpose, or for
Page 6 of 19
726colla.doc
any business, use or purpose described in Section 1(E), above, or which is extra-hazardous, or in
such manner as to constitute either a private or public nuisance of any kind, or for any purpose or
in any way in violation of the certificates of occupancy, or other similar approvals of applicable
governmental authorities. No rubbish, trash, garbage, or other waste material shall be kept or
permitted on the Adjacent Land except in containers located in appropriate areas, if any, and no
odor shall be permitted to arise therefrom so as to render the Adjacent Land or any portion
thereof unsanitary, unsightly, offensive, or detrimental to any other property in the vicinity
thereof.
Section 5. Cooperation Between Dodgers and Developer; New Player Housing
(A) Sponsorship Opportunities: Developer and Dodgers acknowledge and agree that
each will benefit from any cross-promotional and/or sponsorship opportunities which may be
created in connection with the Collateral Development and the Baseball Facilities. Therefore,
throughout the Term, Developer and Dodgers shall work together in good faith to identify,
develop, create, enhance, and exploit any and all advertising, cross-promotional, marketing, and
sponsorship rights and opportunities which may exist or may yet be created in connection with
the Collateral Development and the Baseball Facilities. Developer and Dodgers shall also work
in good faith to integrate the ancillary activities (e.g., fantasy camps) which have been conducted
by Dodgers at Dodgertown over the past fifty years with the Collateral Development.
(B) Extension of Privileges: Each party shall extend to the other such benefits,
privileges, and consideration as each party may reasonably request in connection with the use of
the Collateral Development and/or the Baseball Facilities; provided, however, that neither party
shall be required to incur any material expense, disruption of business activities, and/or suffer
any loss of revenue or inconvenience in order to provide such benefits, privileges, and
consideration to the other party.
(C) New Player Housing: Dodgers have expressed an interest in constructing one
hundred twenty (120) rooms of new player housing (the "New Player Housing") to replace the
current player housing at the Baseball Facilities. The New Player Housing would be built behind
the left field and centerfield berms of Holman Stadium and adjacent to the site of the Hotel.
Developer has represented to Dodgers that it is seeking a hotel developer/operator to participate
in the construction and operation of the Hotel. If an agreement is reached between Dodgers and
Developer and/or the hotel developer/operator in connection with the construction of New Player
Housing, part of such agreement will include the Dodgers, as lessee of the County, subleasing
the New Player Housing to the Developer and/or the hotel developer/operator in accordance with
the terms of this Agreement for as long as Dodgers are the lessee of the Baseball Facilities, at an
annual sublease rental not to exceed One and No/100 ($1.00) Dollar per year. In any event, all
right, title, and interest in and to the New Player Housing shall be transferred to and held by the
County as owner of the Baseball Facilities.
As part of its agreement with a hotel developer/operator, Developer will seek to
obtain the following commitments from the hotel developer/operator:
Page 7 of 19
726colla.doc
(1) In consideration for the right to use sixty (60) of the rooms of New Player
Housing in connection with the Hotel (or such additional rooms as may be available in
the sole discretion of the Dodgers), except during the period of spring training
(approximately 45 days from mid-February through March each Contract Year) during
which period of spring training there will be no right to use any of the rooms, the hotel
developer/operator will operate, maintain, and repair the New Player Housing on a
year-round basis at its sole expense and will provide all such services in connection
therewith (e.g., maid and linen services, telephone operators, etc.) as it normally provides
to the guests at the Hotel. The hotel developer/operator shall also reimburse Dodgers for
any costs and expenses incurred by Dodgers in making the housing units available to
hotel developer/operator.
(2) Throughout the forty-five (45) days of each spring training during the
Term hereof, the hotel developer/operator shall provide breakfast, lunch, and dinner for
not more than 200 Dodgers players and personnel per day. The total cost to Dodgers of
such meal service shall be determined by mutual agreement of the parties.
If Developer succeeds in obtaining a hotel developer/operator to participate in the construction of
the Hotel and such hotel developer/operator agrees to the commitments described above, then
Developer and/or the hotel developer/operator shall build the one hundred twenty (120) rooms of
New Player Housing in accordance with the plans and specifications to be determined by mutual
agreement of the parties after good faith negotiations. In consideration for building the New
Player Housing and for obtaining the aforementioned commitments from the hotel
developer/operator, Dodgers shall pay to Developer and/or the hotel developer/operator an
annual fee to be determined by mutual agreement of the parties for approximately twenty (20)
Contract Years.
Section 6. Easements
(A) Easements over Adjacent Land. Developer, as grantor, hereby grants to the
County and, so long as Dodgers are the lessee of the County or otherwise become the fee owner
of the Baseball Facilities, to Dodgers, as grantees, and to the agents, representatives, customers,
invitees, licensees, and employees of the County and Dodgers a perpetual non-exclusive
easement over the Adjacent Land for pedestrian and vehicular ingress and egress to and from the
Baseball Facilities over any streets, roadways, and walkways located on the Adjacent Land.
Without limiting the effect of the foregoing, Developer shall grant to the County and so long as
Dodgers are the lessee of the County or otherwise become the fee owner of the Baseball
Facilities, to Dodgers, an easement for a water line which shall run to the Baseball Facilities
from a pump to be placed in the canal in the area adjacent to the southwest corner of the
Adjacent Land, either along the maintenance easement which runs along the canal or through the
Adjacent Land in a manner that will not interfere with Developer's use and development of the
Adjacent Land.
(B) Declaration of Easements for Parking. Dodgers, the County, and Developer have
entered into that certain Declaration of Easements for Parking, of even date herewith, which
Declaration of Easements for Parking is intended to be recorded among the Public Records of the
Page 8 of 19
726colla.doc
County. Nothing contained in this Agreement shall be deemed to amend or modify the
provisions of the Declaration of Easements for Parking.
Section 7. Event of Force Majeure
(A) Definition: For purposes of this Agreement, an "Event of Force Majeure" means
any cause or event which is beyond the reasonable control of a party and which renders the
performance of this Agreement by the affected party either impossible or commercially
impracticable, including, without limitation, inclement weather, drought, flood, earthquake, storm,
fire, lightning, labor actions or work stoppages (including, without limitation, strikes, sympathy
strikes and lockouts), natural calamities, national emergencies, declarations of war, riot, civil
disturbance, sabotage, explosions, acts of God, acts of any governmental body and/or agency
having jurisdiction over the affected party, and any federal, state, and/or local laws, rules,
regulations, orders, ordinances, acts, or mandates which prohibit, restrict, or regulate the affected
party's performance of its obligations under this Agreement.
(B) Suspension of Obligations: If either party is unable to perform its obligations
hereunder because of an Event of Force Majeure, then both parties shall be relieved of their
obligations hereunder throughout the time that the Event of Force Majeure is pending.
Section 8. Defaults
(A) Defaults: If either party (as the "Defaulting Party") is in default of any of its
obligations hereunder and such default either cannot be cured, or, if it can be cured, has not been
cured by the Defaulting Party within thirty (30) days after its receipt of written notice of default
from the other party (the "Non-Defaulting Party"), then the Non-Defaulting Party shall have the
right to seek any remedies which may be available to it at law or in equity as a result of the
default.
(B) Cumulative Remedies: The various rights, powers, and/or remedies of any party
hereto or herein contained shall not be considered as exclusive of, but shall be considered
cumulative to, any rights, powers, and/or remedies now or hereafter existing at law or in equity
and/or created by this Agreement.
(C) No Implied Waiver: The failure of either party to seek redress for any violation of,
or to insist upon the strict performance of, any covenant, term, condition, representation, and/or
warranty set forth in this Agreement shall not constitute a waiver of such rights or in any way limit
or prevent the subsequent enforcement of any such covenant, term, condition, representation, and/or
warranty.
(D) No Termination by Developer: Notwithstanding anything to the contrary
contained in this Agreement, it is expressly understood and agreed that no uncured breach or
default of this Agreement by Dodgers shall entitle Developer to cancel, rescind, or otherwise
terminate this Agreement. However, such limitation shall not affect in any manner any other
rights or remedies which Developer may have hereunder or under any applicable law by reason
of any such uncured breach.
Page 9 of 19
726colla.doc
(E) Notice to Mortgagees: Each party shall provide copies to the other party's first
priority mortgagee (if any) of any default notices sent hereunder, provided any such mortgagee
has requested such notices and has provided the other party in writing with an appropriate
address for the mailing of such notices. Any such first priority mortgagee which has requested
notice in accordance with this Agreement shall, after receiving a notice of default hereunder,
have a fifteen (15) day period to cure such default.
Section 9. Costs and Attorneys' Fees
If either party to this Agreement brings an action to enforce its rights hereunder, the
prevailing party shall be entitled to recover its costs and expenses, including, without limitation,
legal interest thereon, and reasonable attorneys' fees incurred in connection with such action.
Section 10. Governing Law
This Agreement and the rights and obligations of the parties hereto shall be governed by
and construed in accordance with the laws of the State of Florida and any applicable federal law
without regard to choice of law rules. Venue with respect to any action or proceeding arising
hereunder shall be in Indian River County, Florida.
Section 11. Arbitration
(A) Notwithstanding anything to the contrary contained in this Agreement, during the
Term hereof, any disputes or claims between Dodgers and Developer shall be resolved first by
good faith negotiation of the parties, and if such good faith negotiation does not resolve any such
dispute or claim, then the matter shall be submitted to expedited arbitration administered by the
American Arbitration Association ("AAA") as provided in this Section 11 and the Commercial
Arbitration Rules of the AAA (the "AAA Rules") in effect as of the commencement of the
applicable arbitration proceeding, except to the extent the then-current AAA Rules are
inconsistent with the provisions of this Section 11, in which case the terms hereof shall control.
The arbitration shall be governed by the United States Arbitration Act and the Florida Arbitration
Code to the extent the Florida Arbitration Code is not inconsistent with the United States
Arbitration Act and this Section 11, and judgment upon the award entered by the arbitrator may
be entered in any court having jurisdiction. Such arbitration shall be subject to the following
additional provisions:
(1) Any arbitration pursuant to this Section 11 shall be conducted in Indian
River County, Florida.
(2) The arbitration shall be conducted by one (1) arbitrator in accordance with
the AAA Rules for Expedited Procedures, which arbitrator shall be selected in
accordance with the AAA Rules for Expedited Procedures, and which arbitrator shall
have had experience in dealing with large-scale real estate development and construction
matters.
Page 10 of 19
726colla.doc
(3) In connection with any arbitration proceeding: (a) No arbitrator shall have
been employed or engaged by a party hereto or its consultants within the previous five (5)
year period; (b) the arbitrator shall be neutral and independent of the parties to this
Agreement; (c) no arbitrator shall be affiliated with either party's auditors; and (d) no
arbitrator shall have a conflict of interest with (including, without limitation, any bias
towards or against) a party hereto.
(4) The award of the arbitrator shall be accompanied by a statement of the
reasons upon which the award is based. The arbitrator shall not have the power to
modify this Agreement. The award may not include, and the parties specifically waive,
any award of punitive damages. The fees and costs of the arbitrator shall be borne
equally by the parties.
(5) The arbitrator may consolidate proceedings with respect to any dispute or
claim under this Agreement with proceedings with respect to any related controversy,
provided that any parties to such controversy who are not parties to this Agreement
consent to such consolidation.
(6) The parties will cooperate in the exchange of documents relevant to any
dispute or claim. Deposition or interrogatory discovery may be conducted only by
agreement of the parties or if ordered by the arbitrator. In considering a request for such
deposition or interrogatory discovery, the arbitrator shall take into account that the parties
are seeking to avoid protracted discovery in connection with any arbitration proceeding
hereunder.
(7) If a party determines that a dispute or claim presents such party with an
extraordinary situation that requires it to seek emergency provisional relief prior to the
appointment of the arbitrator who will determine such dispute or claim, it may seek such
emergency provisional relief from any court having jurisdiction; provided, however, that
(a) in order to obtain any such relief, the court shall determine that such party has met any
applicable standards imposed by the law applicable to the relief requested with respect to
such party's rights to such relief and (b) such relief may only be sought and obtained on
the condition that any order entered by the court will expire ten (10) days after the
appointment of the arbitrator unless the party that sought the order renews its application
for emergency provisional relief to the arbitrator within such ten (10) day period, which
arbitrator shall then make de novo any findings of fact that may be required in ruling on
such renewed application.
Section 12. Term
(A) Term: The covenants, conditions, easements, and restrictions of this Agreement
shall run with and bind the properties covered hereby, and shall inure to the benefit of the parties
hereto, and their respective successors and assigns, for a term of twenty (20) years from the date
this Agreement is recorded, after which time said covenants, conditions, easements, and
restrictions shall be automatically extended for four (4) successive periods of five (5) Contract
Page 11 of 19
726colla.doc
Years, unless an instrument terminating this Agreement has been executed by the parties hereto
(or their respective successors or assigns, as the case may be) and recorded.
(B) Contract Year: For purposes of this Agreement, a "Contract Year" means a twelve-
month period commencing on May 1 of any calenaar year of the Term hereof and ending on April
30 of the following calendar year; provided, however, that the first Contract Year shall commence
as of the Effective Date and shall end on April 30, 2002.
Section 13. Estoppel Certificates
At any time, within fifteen (15) days after a request by either party, the other party shall
certify in writing to the requesting party, or any 'person specified by the requesting party, (1)
whether this Agreement is unmodified and in full :orce and effect (or if it has been modified, that
the same is in full force and effect as modified and setting forth such modification); (2) whether
to the best of the other party's knowledge, the requesting party is in default under this Agreement
(and if there are known defaults, specifying with reasonable detail the nature thereof); and (3)
any other information which the requesting party may reasonably request to be confirmed.
Section 14. Constructive Notice and Acceptance
Every person who owns, occupies, or acquires any right, title, estate, or interest in or to
the Baseball Facilities or the Adjacent Land shall be conclusively deemed to have consented and
agreed to every limitation, restriction, easement, reservation, condition, and covenant contained
herein, whether or not any reference hereto is contained in the instrument by which such person
acquired an interest in such property.
Section 15. Nature of Relationship
(A) No Partnership: This Agreement does not and shall not be construed as creating a
partnership,joint venture, or employment relationship between the parties, and nothing contained
herein shall cause or be construed as causing either party to be the employee, agent, or
representative of the other.
(B) No Warranties: Neither party shall make any warranties and/or representations,
or incur any obligations whatsoever, on behalf of or in the name of the other party.
Section 16. Representations and Warranties by the Parties
Each party to this Agreement represents and warrants to the other as follows:
(A) Each party has the power to execute, deliver, and perform this Agreement in
accordance with its terms;
(B) Each party's execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated herein, have been duly authorized by all
requisite corporate action on the part of said party, have received all required governmental
Page 12 of 19
726colla.doc
approvals, and do not and will not violate any provision of law or constitute a default under any
agreement or other instrument by which such party is bound; and
(C) This Agreement, when executed by the undersigned on behalf of the respective
parties, shall constitute the valid and legally binding obligation of the parties, enforceable in
accordance with its terms.
Section 17. Assignment
Neither party may grant, assign, sublicense, or otherwise convey to a third party any or
all of its rights and/or obligations under this Agreement or any portion hereof without first giving
notice to the other party and a reasonable opportunity to object to the assignment on the basis
that the association with the prospective assignee will undermine the character, reputation, or
goodwill of the remaining party or its standing in the community. The acquisition of a party's
stock and/or substantially all of its assets by a third party, or a party's merger with a third party,
shall not constitute an assignment or conveyance of rights requiring the other party's prior
written approval; provided, however, that the prior written approval of Dodgers is required
pursuant to the standard set forth above if at any time Developer is not controlled by George de
Guardiola and/or Bruce A. Rendina, and/or George de Guardiola and/or Bruce A. Rendina
ultimately does not have day-to-day management responsibility for Developer. Developer shall
have the right to collaterally assign this Agreement to Developer's institutional lender(s) for the
Collateral Development; provided, however, that any successor to Developer's interest in this
Agreement as a result of a foreclosure or deed-in-lieu thereof is subject to approval of Dodgers
pursuant to the standard set forth above. Nothing contained herein shall be deemed to prohibit
any such lender from foreclosing its mortgage and/or taking a deed-in-lieu thereof; provided that
any further sale of the property to, and/or the engagement of, a new developer for the Collateral
Development shall be subject to the prior written approval of Dodgers pursuant to the standard
set forth above.
Section 18. Notices
All notices to be given, payments to be made, or documents, samples, or other materials
to be delivered by either party to the other pursuant to this Agreement shall be sent by prepaid
first class mail, by overnight courier or telephone facsimile, or hand-delivered, to the addresses
set forth below. Any such notices, payments, documents, samples, or other materials shall be
deemed to have been given or delivered forty-eight (48) hours after posting, if sent by first class
mail, when received, if sent by overnight courier or telephone facsimile, or when delivered, if
delivered by hand.
If to Dodgers: Los Angeles Dodgers, Inc.
1000 Elysian Park Avenue
Los Angeles, California 90012
Attn.: Santiago Fernandez, Esq.,
Senior Vice President and General Counsel
Page 13 of 19
726colla.doc
■
with a copy to: Los Angeles Dodgers, Inc.
401 26th Street
Vero Beach, Florida 32961
Attn.: Craig B. Callan
Vice President, Spring Training
and Minor League Facilities
and: Fox Baseball Holdings, Incorporated
P.O. Box 900
Beverly Hills, California 90213
Attn: Gary Ehrlich
Executive Vice President
If to Developer: Vero Acquisition, LLLP
3801 PGA Boulevard, Suite 555
Palm Beach Gardens, Florida 33410
Attn.: George de Guardiola
President
Tel. No.: (561) 630-5055
Fax No.: (561) 630-8310
with a copy to: Lawrence B. Juran, Esq.
3801 PGA Boulevard, Suite 555
Palm Beach Gardens, Florida 33410
Tel. No.: (561) 630-5055
Fax No.: (561) 630-8310
If to the County: Indian River County
1840 25th Street
Vero Beach, Florida 32960
Attention: County Administrator
Section 19. Provisions Severable
The provisions of this Agreement are severable and if any one or more of these
provisions is held to be invalid or unenforceable, in whole or in part, the remaining provisions
and any partially enforceable provisions shall be and remain binding and enforceable.
Section 20. Headings
The section headings in this Agreement have been provided solely for convenience of
reference and are not a part of, nor are they intended to govern, limit, or aid in the construction or
interpretation of any term or provision hereof.
Page 14 of 19
726colla.doc
Section 21. Time
Time is of the essence in the performance of this Agreement.
Section 22. Extended Meanings
The words "hereof," "hereto," "hereunder," and similar expressions used in this
Agreement relate to the whole of this Agreement and not only to the provisions in which such
expressions appear. This Agreement shall be read with all changes in number and gender as may
be appropriate or required by the context. Any reference to Developer includes, when the
context allows, the employees, agents, invitees, and licensees of Developer and all others over
whom the Developer might reasonably be expected to exercise control.
Section 23. No Public Dedication
Nothing contained in this Agreement will be deemed to be a gift or dedication of any
portion of the Baseball Facilities or the Adjacent Land to the general public or for any public
purpose whatsoever.
Section 24. Subservience to Major League Baseball
(A) Notwithstanding any other provision of this Agreement, any and all rights granted
by Dodgers to Developer to use the Dodgers' Marks pursuant to this Agreement are subject to
the approval of the Office of the Commissioner of Baseball and shall, in all respects, be
subordinate to, and shall not prevent the issuance, entering into, or amendment of, any of the
following documents, each as may be issued, entered into, or amended from time to time
(collectively, the "MLB Documents"): (1) any present or future agreements or arrangements
regarding the telecast, broadcast, recording (audio or visual), or other transmission or
retransmission (including, but not limited to, transmission via the Internet or any other medium
of interactive communication, now known or hereafter developed) of Major League Baseball
games, and/or the accounts and descriptions thereof, entered into with third parties by any of the
MLB Entities, either on its own behalf or on behalf of the Major League Baseball Clubs and/or
other MLB Entities; (2) any other present or future agreements or arrangements entered into with
third parties by, or on behalf of, any of the MLB Entities, including, without limitation, those
relating to ticketing, e-commerce, and/or the exploitation of intellectual property rights in any
medium, including the Internet or any other medium of interactive communication; (3) any
present or future agreements or arrangements entered into by Dodgers with the other Major
League Baseball Clubs and/or one or more of the MLB Entities (including, without limitation,
the Major League Constitution and each agency agreement and operating guidelines among the
Major League Baseball Clubs and an MLB Entity); and (4) any Rules issued or adopted either by
the Commissioner or otherwise pursuant to the Major League Constitution or any such agency
agreement. Dodgers and Developer shall each comply with all applicable terms, conditions and
requirements contained in the MLB Documents with respect to the subject matter of this
Agreement.
Page 15 of 19
726colla.doc
(B) Nothing contained in this Agreement shall be construed as conferring on
Developer rights in areas outside of Dodgers' Home Television Territory.
(C) Dodgers shall have the right, at no cost or liability to themselves and/or any other
club or MLB Entity, to terminate this Agreement at any time Developer breaches its obligations
under Section 24(A) or 24(B), above. Notwithstanding any other provisions to the contrary
contained in this Agreement, this right to terminate shall be exercisable by delivering written
notice to Developer within thirty (30) days after Dodgers obtain actual knowledge that such
breach or retransmission has occurred and the effective date of such termination shall be no more
than thirty(30) days after the date such notice is given, as specified by Dodgers in such notice.
(D) In addition, Dodgers shall have the right to terminate immediately any right or
obligation in this Agreement involving "Interactive Media," upon thirty (30) days' written
notice, at no cost or liability to Dodgers and/or any other club or any MLB Entity. For purposes
of this provision, "Interactive Media" shall mean (1) the Internet or any other on-line system or
computer network; (2) any interactive wireless service, including any interactive microwave or
cellular service; (3) any interactive satellite service; (4) any interactive broadcast television,
broadcast radio or cable television service; and (5) any other medium of interactive
communication now known or hereafter devised.
(E) Dodgers represent that as of the effective date of this Agreement, the terms of this
Agreement and the rights granted to Developer hereunder comply with the requirements of the
MLB Documents and the Rules of the MLB Entities. Dodgers shall notify Developer as soon as
reasonably possible of any changes in the terms of the MLB Documents and/or the Rules of the
MLB Entities which would or could affect Developer's rights hereunder.
Section 25. Entire Agreement
(A) This Agreement constitutes the entire agreement between the parties and the
provisions hereof supersede any and all prior and/or contemporaneous agreements or
understandings relating to the same subject matter. This Agreement may be amended only by a
writing signed by both parties.
(B) This Agreement has been negotiated at arm's length between the parties hereto,
both of which are sophisticated and knowledgeable in the matters dealt with in this Agreement.
Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision
which would require any ambiguities in this Agreement to be interpreted against the party that
drafted it, is not applicable and is hereby waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the purpose and intent of the parties.
(C) For the convenience of the parties,this Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall constitute one and the same
Agreement.
Page 16 of 19
726coua.aoc
Section 26. Third Party Beneficiary
The County is deemed to be a third party beneficiary of this Agreement.
[signatures begin on next page]
Page 17 of 19
726colla.doc
IN WITNESS WHEREOF, Dodgers and the Developer have executed this
Agreement as of the date first written above.
WITNESSES: DODGERS:
LOS ANGELES DODGERS, INC., a Delaware
corporation
By:
Print name: Name:
Title:
Print name:
STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2001, by , as of
LOS ANGELES DODGERS, INC., a Delaware corporation, on behalf of the corporation.
He/She is personally known to me or produced a valid driver's license as identification.
Notary Public
Print name:
My commission expires:
Page 18 of 19
726colla.doc
WITNESSES: DEVELOPER:
VERO ACQUISITION, LLLP, a Florida limited
liability limited partnership
By: VERO ACQUISITION EQUITY
CORPORATION, a Florida corporation, sole
general partner of Vero Acquisition, LLLP
By:
Print name: Name:
Title:
Print name:
STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2001, by
as of VERO ACQUISITION EQUITY CORPORATION, a Florida
corporation, on behalf of the corporation, which corporation is sole general partner of VERO
ACQUISITION, LLLP, a Florida limited liability limited partnership, on behalf of the limited
liability limited partnership. He/She is personally known to me or produced a valid driver's
license as identification.
Notary Public
Print name:
My commission expires:
Page 19 of 19
726colla.doc
CONSENT
INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of
Florida, as the fee simple owner of the Baseball Facilities described on Exhibit "A" hereto,
hereby consents to the foregoing Collateral Development Agreement.
Approved as to Form and INDIAN RIVER COUNTY, FLORIDA, a political
subdivision of the
legal sufficiency State of Florida
By: By:
Print name: Name:
Special County Attorney Title:
Attest:
Clerk
STATE OF FLORIDA )
)ss:
COUNTY OF INDIAN RIVER )
. The foregoing instrument was acknowledged before me this day of
2001, by as Chairman of
Indian River County, Florida, a political subdivision of the State of Florida, on behalf of such
political subdivision, who is personally known to me or produced a valid driver's license as
identification.
Notary Public, State of Florida
Print Name:
My commission expires:
726colla.doc
EXHIBIT"A"
LEGAL DESCRIPTION OF BASEBALL FACILITIES
726colla.doc
CONSENT
as the owner and
holder of a Mortgage and Security Agreement granted by Developer with respect to the Adjacent
Land described on Exhibit `B" hereto, which Mortgage and Security Agreement is intended to
be recorded among the Public Records of Indian River County, Florida, hereby consents to the
foregoing Collateral Development Agreement.
, a
By:
Print name: Name:
Title:
Print name:
STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by
as of
a on behalf of the
He/She is personally known to me or produced a valid driver's license
as identification.
Notary Public
Print name:
My commission expires:
726collaaoc
EXHIBIT `B"
LEGAL DESCRIPTION OF ADJACENT LAND
726colla.doc
EXHIBIT "C"
CONCEPTUAL MASTER PLAN
726colla.doc
EXHIBIT B
FORM OF DECLARATION OF EASEMENTS FOR PARKING
EXHIBIT C
PARKING MULTI-FAMILY , EXISTING
RESIDENTIAL
CLUBHOUSE w� DEVELOPMENT
!;�a r• ;Uw��
HOTEL&CONFERENCE HOLMAN
CENTER STADIUM yq'
; � ttw. . �' . NEW OBSERVATION
-- TOWERIFIESTROOM
law t
il
EXISTING
RESIDENTIAL ;: i I :R•p. a l " r :; °, ' EXISTING
DEVELOPMENT RESIDENTIAL
DEVELOPMENT
MIXED USE "1 EX t: LEAGUE
RESTAURANT! Fro ,� _ I l} �, a°
83
RESIDENTIAL I
NEW
E FEW' 1/2
i �+ ' ,♦ k,� :f. \ n j�• FIELD
W� ?t
MASTER SITE PLAN
3 �.3..
OWN
ENTERTAINMENT/ "'!'° •Q�%� ���/�p�P/.t �!/ GI��P/tG�
RETAIL � t:1 _
4
FSpring Training Facility
MULTI-FAMILY Vero Beach, Florida
RESIDENTIAL July 13,200D
PREPARED BY: RESERVED FOR USE BY
Eric D. Rapkin, Esq. CLERK OF CIRCUIT COURT
Hughes Hubbard & Reed LLP
201 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131
RECORD AND RETURN TO:
Robert C. Reid, Esq.
Bryant, Miller and Olive, P.A.
201 South Monroe Street, Suite 500
Tallahassee, Florida 32301
DECLARATION OF EASEMENTS FOR PARKING
This Declaration of Easements for Parking (the "Declaration") is entered into as of August
2001, by and between Los Angeles Dodgers, Inc., a Delaware corporation, ("Dodgers"), Vero Acquisition,
LLLP, a Florida limited liability limited partnership ("Developer"), and Indian River County, Florida, a
political subdivision of the State of Florida(the"County").
RECITALS
A. Dodgers own and control the sports and entertainment venue located in Los Angeles,
California, and known as "Dodger Stadium," the Major League Baseball team known as the "Los
Angeles Dodgers" (the "Team"), and, subject to the MLB Documents and the Rules of Major League
Baseball (as defined below), all rights, title, and interest in and to the names, trademarks, service marks,
trade names, insignia, symbols, logos, decorative designs, trade dress, uniform designs, or other
identifications associated with Dodger Stadium and the Team (collectively, the"Dodgers' Marks").
B. Since 1949, Dodgers have owned and operated the spring training facility located in Vero
Beach, Florida, and known generally as"Dodgertown."
C. Pursuant to that certain Warranty Deed of even date herewith, the County has purchased
from Dodgers that portion of Dodgertown which encompasses the baseball fields and facilities, office
buildings, and conference facilities located on the premises (collectively, the "Baseball Facilities").
Dodgers, in turn, have leased the Baseball Facilities back from the County and have agreed to renovate
certain portions of the Baseball Facilities. The Baseball Facilities are described with particularity in
Exhibit "A," which is attached hereto and incorporated herein by this reference.
D. Pursuant to those certain Warranty Deeds of even date herewith, Fox Baseball Holdings,
Inc. ("Fox") and Dodgers have sold to Developer the approximately acre nine-hole golf course
immediately adjacent to the western boundary of the Baseball Facilities and the approximately
726decla.doc
Page 1 of 13
acres of land adjacent to the northern boundary of the Baseball Facilities (the combined acreage to be
referred to hereafter as the "Adjacent Land"). In turn, Developer has agreed to develop the Adjacent
Land by constructing thereon a mixed-use "mini-town" containing, inter alfa, a hotel and conference
facility, multifamily rental units, and retail, restaurant, and entertainment facilities (hereinafter
collectively referred to as the "Collateral Development"). The Adjacent Land is described with
particularity in Exhibit `B," which is attached hereto and incorporated herein by this reference. For
purposes of this Declaration, any reference to "Developer" in this Declaration shall be deemed to
include, without limitation, Developer's heirs, successors and assigns.
E. Pursuant to the Facility Lease Agreement, dated as of September 1, 2000, between
Dodgers and the County, the County has leased the Baseball Facilities to Dodgers for an initial term of
twenty (20) years (subject to renewal options set forth therein). The Facility Lease Agreement has been
recorded among the Public Records of the County prior to the recordation of this Declaration.
F. Developer shall develop the Adjacent Land and construct the Collateral Development,
through final completion thereof, in accordance with the protective covenants, conditions, restrictions,
and easements, set forth in this Declaration, all of which covenants, conditions, restrictions, and
easements shall run with the Adjacent Land.
G. Dodgers, the County, and Developer desire to provide adequate parking space for all
anticipated events at the Baseball Facilities, as well as at the Collateral Development, and have agreed to
enter into and record this Declaration among the Public Records of the County to encumber both the
Baseball Facilities and the Adjacent Land.
COVENANTS
NOW, THEREFORE, in consideration of the foregoing Recitals and of the mutual promises,
covenants, conditions, warranties, and representations set forth herein, the parties hereto agree as
follows:
Section 1. Declaration
(A) Declaration: Dodgers, Developer, and the County declare and agree that the Adjacent
Land and the Baseball Facilities shall be developed, constructed, held, sold, conveyed, encumbered,
hypothecated, leased, used, occupied, and improved subject to the agreements, easements, restrictions,
covenants, and conditions set forth in this Declaration, all of which are for the purpose of providing that
adequate parking be readily available for all anticipated events at the Baseball Facilities as well as at the
Collateral Development. The agreements, covenants, conditions, restrictions, and easements set forth
herein (a) shall run with the title to the Adjacent Land and shall be binding upon and inure to the benefit
of Developer, its successors and assigns; and (b) shall run with the title to the Baseball Facilities and
shall be binding upon and inure to the benefit of Dodgers, the County, and their respective successors
and assigns.
(B) Compliance with Laws: The parking areas for the Baseball Facilities and the Adjacent
Land shall be developed, used, constructed, occupied, and held in accordance with this Declaration, and
726decla.doc
Page 2 of 13
all applicable present and future laws, ordinances, codes, rules, and regulations of all applicable
governmental authorities (collectively, "Legal Requirements").
Section 2. Parking Requirements
(A) Total Parking Requirements: The parties acknowledge that the general plan of
development for the Collateral Development and the Baseball Facilities shall be required to provide a
certain minimum number of parking spaces as required by the City of Vero Beach (the"City") Code of
Ordinances or pursuant to a variance or as otherwise acceptable to the City. (The minimum number of
parking spaces required by the City's Code of Ordinances or pursuant to a variance or as otherwise
acceptable to the City for both the Collateral Development and the Baseball Facilities is hereinafter
referred to as the"Total Parking Requirements.") Accordingly, Dodgers and Developer hereby agree
that a sufficient number of parking spaces shall be provided within the Collateral Development (and any
other land which may be secured by Developer and acceptable to the City of Vero Beach and the
Dodgers, which approval will not be unreasonably withheld as to the Dodgers) and the Baseball
Facilities to satisfy the Total Parking Requirements; provided, however, that the total number of parking
spaces to be provided by Dodgers within the Baseball Facilities shall not interfere with Dodgers' use of
the Baseball Facilities and/or require that any of the baseball fields (including the outfield portions of the
fields) be used for parking and/or otherwise result in material detriment to the Baseball Facilities. At
such time as the exact number of parking spaces in the Total Parking Requirements (and the location
thereof) has been finalized, the parties shall execute and record a supplemental declaration to this
Declaration in order to evidence the Total Parking Requirements.
(B) Collateral Development Agreement: The parties acknowledge and agree that this
Declaration is not intended to modify their respective obligations set forth in the Collateral Development
Agreement.
(C) Parking Easements: Each party hereto, as grantor, hereby grants to the other party, as
grantee, as an appurtenance to the Baseball Facilities with respect to Dodgers and the County, and as an
appurtenance to the Adjacent Land with respect to Developer, and to the agents, customers, invitees,
licensees, employees, and tenants of grantee, a perpetual, nonexclusive easement for the parking of
motor vehicles in such parking areas of the Baseball Facilities and the Adjacent Land as may be
available from time to time.
(D) Parking During, Construction of Collateral Development: Dodgers and their agents,
customers, invitees, licensees, employees, and tenants shall have the right to utilize for parking any and
all areas of the Adjacent Land which have not yet been developed. During the construction of the
Collateral Development, Dodgers and Developer shall work together to arrange for the parking on the
Adjacent Land to be located in mutually satisfactory locations so that parking in close proximity to the
Baseball Facilities is always available for the Baseball Facilities, while at the same time Developer's
construction activities can proceed safely and efficiently, and in any event in accordance with applicable
Legal Requirements.
726decla.doc
Page 3 of 13
Section 3. Parking Charges
(A) Parking Charges: All charges for all parking within the Collateral Development shall be
as may be agreed to from time to time solely by Dodgers and Developer, in their sole discretion (subject
to applicable Legal Requirements). All charges for all parking at the Baseball Facilities shall be as
promulgated from time to time by Dodgers, in their sole discretion (subject to applicable Legal
Requirements). In all cases, any and all revenues derived from parking on the Collateral Development
in connection with events at the Baseball Facilities shall be retained solely by Dodgers after reimbursing
Developer for any costs and expenses incurred by Developer in connection with such parking, provided
that such costs and expenses (or the method of calculating the same) has been approved in writing in
advance by Dodgers, which approval will not be unreasonably withheld or delayed. At such time as
Dodgers are no longer lessee of the Baseball Facilities, any reference herein to Dodgers shall mean the
County or its assigns (except if Dodgers have become the fee owner of the Baseball Facilities).
(B) Other Parking: The provisions of Section 3(A), above, do not apply to parking on land
which is secured by Developer and is not within the Adjacent Land. As to such land, Developer and
Dodgers shall share any revenues derived therefrom in accordance with an allocation formula to be
determined hereafter by mutual agreement of the parties.
Section 4. Defaults
(A) Defaults: If either party (as the "Defaulting Party") is in default of any of its obligations
hereunder and such default either cannot be cured, or, if it can be cured, has not been cured by the
Defaulting Party within thirty (30) days after its receipt of written notice of default from the other party
(the "Non-Defaulting Party"), then the Non-Defaulting Party shall have the right to seek any remedies
which may be available to it at law or in equity as a result of the default.
(B) Cumulative Remedies: The various rights, powers, and/or remedies of any party hereto or
herein contained shall not be considered as exclusive of, but shall be considered cumulative to, any rights,
powers, and/or remedies now or hereafter existing at law or in equity and/or created by this Declaration.
(C) No Implied Waiver: The failure of either party to seek redress for any violation of, or to
insist upon the strict performance of, any covenant, term, condition, representation, and/or warranty set
forth in this Declaration shall not constitute a waiver of such rights or in any way limit or prevent the
subsequent enforcement of any such covenant,term, condition, representation, and/or warranty.
(D) No Termination by Developer: Notwithstanding anything to the contrary contained in
this Declaration, it is expressly understood and agreed that no uncured breach or default of this
Declaration by Dodgers shall entitle Developer to cancel, rescind, or otherwise terminate this
Declaration. However, such limitation shall not affect in any manner any other rights or remedies which
Developer may have hereunder or under any applicable law by reason of any such uncured breach.
(E) Notice to Mortgagees: Each party shall provide copies to the other party's first priority
mortgagee (if any) of any default notices sent hereunder, provided any such mortgagee has requested
such notices and has provided the other party in writing with an appropriate address for the mailing of
such notices. Any such first priority mortgagee which has requested notice in accordance with this
726decla.doc
Page 4 of 13
Declaration shall, after receiving a notice of default hereunder, have a fifteen (15) day period to cure
such default.
Section 5. Costs and Attorneys' Fees
If any party to this Declaration brings an action to enforce its rights hereunder, the prevailing
party shall be entitled to recover its costs and expenses, including, without limitation, legal interest
thereon, and reasonable attorneys' fees incurred in connection with such action.
Section 6. Governing Law
This Declaration and the rights and obligations of the parties hereto shall be governed by and
construed in accordance with the laws of the State of Florida and any applicable federal law without
regard to choice of law rules. Venue with respect to any action or proceeding arising hereunder shall be
in Indian River County, Florida.
Section 7. Arbitration
(A) Notwithstanding anything to the contrary contained in this Declaration, during the Term
hereof, any disputes or claims between the parties shall be resolved first by good faith negotiation of the
parties, and if such good faith negotiation does not resolve any such dispute or claim, then the matter
shall be submitted to expedited arbitration administered by the American Arbitration Association
("AAA") as provided in this Section 7 and the Commercial Arbitration Rules of the AAA (the "AAA
Rules") in effect as of the commencement of the applicable arbitration proceeding, except to the extent
the then-current AAA Rules are inconsistent with the provisions of this Section 7, in which case the
terms hereof shall control. The arbitration shall be governed by the United States Arbitration Act and
the Florida Arbitration Code to the extent the Florida Arbitration Code is not inconsistent with the
United States Arbitration Act and this Section 7, and judgment upon the award entered by the arbitrator
may be entered in any court having jurisdiction. Such arbitration shall be subject to the following
additional provisions:
(1) Any arbitration pursuant to this Section 7 shall be conducted in Indian River
County, Florida.
(2) The arbitration shall be conducted by one (1) arbitrator in accordance with the
AAA Rules for Expedited Procedures, which arbitrator shall be selected in accordance with the
AAA Rules for Expedited Procedures, and which arbitrator shall have had experience in dealing
with large-scale real estate development and construction matters.
(3) In connection with any arbitration proceeding: (a) No arbitrator shall have been
employed or engaged by a party hereto or its consultants within the previous five (5) year period;
(b) the arbitrator shall be neutral and independent of the parties to this Declaration; (c) no
arbitrator shall be affiliated with either party's auditors; and (d) no arbitrator shall have a conflict
of interest with (including, without limitation, any bias towards or against) a party hereto.
726decla.doc
Page 5 of 13
(4) The award of the arbitrator shall be accompanied by a statement of the reasons
upon which the award is based. The arbitrator shall not have the power to modify this
Declaration. The award may not include, and the parties specifically waive, any award of
punitive damages. The fees and costs of the arbitrator shall be borne equally by the parties.
(5) The arbitrator may consolidate proceedings with respect to any dispute or claim
under this Declaration with proceedings with respect to any related controversy, provided that
any parties to such controversy who are not parties to this Declaration consent to such
consolidation.
(6) The parties will cooperate in the exchange of documents relevant to any dispute
or claim. Deposition or interrogatory discovery may be conducted only by agreement of the
parties or if ordered by the arbitrator. In considering a request for such deposition or
interrogatory discovery, the arbitrator shall take into account that the parties are seeking to avoid
protracted discovery in connection with any arbitration proceeding hereunder.
(7) If a party determines that a dispute or claim presents such party with an
extraordinary situation that requires it to seek emergency provisional relief prior to the
appointment of the arbitrator who will determine such dispute cr claim, it may seek such
emergency provisional relief from any court having jurisdiction; provided, however, that (a) in
order to obtain any such relief, the court shall determine that such party has met any applicable
standards imposed by the law applicable to the relief requested with respect to such party's rights
to such relief and (b) such relief may only be sought and obtained on the condition that any order
entered by the court will expire ten (10) days after the appointment of the arbitrator unless the
party that sought the order renews its application for emergency provisional relief to the
arbitrator within such ten (10) day period, which arbitrator shall then make de novo any findings
of fact that may be required in ruling on such renewed application.
Section 8. Term
The covenants, conditions, easements, and restrictions of this Declaration shall run with and bind
the properties covered hereby, and shall inure to the benefit of the parties hereto, and their respective
successors and assigns, until an instrument terminating this Declaration has been executed by the parties
hereto (or their respective successors or assigns, as the case may be) and recorded.
Section 9. Estoppel Certificates
At any time, within fifteen (15) days after a request by either party, the other party shall certify in
writing to the requesting party, or any person specified by the requesting party, (1) whether this
Declaration is unmodified and in full force and effect (or if it has been modified, that the same is in full
force and effect as modified and setting forth such modification); (2) whether to the best of the other
party's knowledge, the requesting party is in default under this Declaration (and if there are known
defaults, specifying with reasonable detail the nature thereof), and (3) any other information which the
requesting party may reasonably request to be confirmed.
726decla.doc
Page 6 of 13
Section 10. Constructive Notice and Acceptance
Every person who owns, occupies, or acquires any right, title, estate, or interest in or to the
Baseball Facilities or the Adjacent Land shall be conclusively deemed to have consented and agreed to
every limitation, restriction, easement, reservation, condition, and covenant contained herein, whether or
not any reference hereto is contained in the instrument by which such person acquired an interest in such
property.
Section 11. Nature of Relationship
(A) This Declaration does not and shall not be construed as creating a partnership, joint
venture, or employment relationship between the parties, and nothing contained herein shall cause or be
construed as causing either party to be the employee, agent, or representative of the other.
(B) None of the parties hereto shall make any warranties and/or representations, or incur any
obligations whatsoever, on behalf of or in the name of any other party.
Section 12. Representations and Warranties by the Parties
Each party to this Declaration represents and warrants to the other as follows:
(A) Each party has the power to execute, deliver, and perform this Declaration in accordance
with its terms;
(B) Each party's execution, delivery, and performance of this Declaration, and the
consummation of the transactions contemplated herein, have been duly authorized by all requisite
corporate action on the part of said party, have received all required governmental approvals, and do not
and will not violate any provision of law or constitute a default under any agreement or other instrument
by which such party is bound; and
(C) This Declaration, when executed by the undersigned on behalf of the respective parties,
shall constitute the valid and legally binding obligation of the parties, enforceable in accordance with its
terms.
Section 13. Assignment
No party may grant, assign, sublicense, or otherwise convey to a third party any or all of its
rights and/or obligations under this Declaration or any portion hereof without first giving notice to the
other parties and a reasonable opportunity to object to the assignment on the basis that the association
with the prospective assignee will undermine the character, reputation, or goodwill of the remaining
parties and/or their standing in the community. The acquisition of a party's stock and/or substantially all
of its assets by a third party, or a party's merger with a third party, shall not constitute an assignment or
conveyance of rights requiring the other party's prior written approval; provided, however, that the prior
written approval of Dodgers is required pursuant to the standard set forth above if at any time Developer
is not controlled by George de Guardiola and/or Bruce A. Rendina, and/or George de Guardiola and/or
Bruce A. Rendina ultimately does not have day-to-day management responsibility for Developer.
726decla.doc
Page 7 of 13
Developer shall have the right to collaterally assign this Declaration to Developer's institutional
lender(s) for the Collateral Development; provided, however, that any successor to Developer's interest
in this Declaration as a result of a foreclosure or deed-in-lieu thereof is subject to approval of Dodgers
pursuant to the standard set forth above. Nothing contained herein shall be deemed to prohibit any such
lender from foreclosing its mortgage and/or taking a deed-in-lieu thereof, provided that any further sale
of the property to, and/or the engagement of, a new developer for the Collateral Development shall be
subject to the prior written approval of Dodgers pursuant to the standard set forth above.
Section 14. Notices
All notices to be given, payments to be made, or documents, samples, or other materials to be
delivered by either party to the other pursuant to this Declaration shall be sent by prepaid first class mail,
by overnight courier or telephone facsimile, or hand-delivered, to the addresses set forth below. Any
such notices, payments, documents, samples, or other materials shall be deemed to have been given or
delivered forty-eight (48) hours after posting, if sent by first class mail, when received, if sent by
overnight courier or telephone facsimile, or when delivered, if delivered by hand.
If to Sellers: Los Angeles Dodgers, Inc.
1000 Elysian Park Avenue
Los Angeles, California 90012
Attn.: Santiago Fernandez, Esq.,
Senior Vice President and General Counsel
Tel. No.: (323) 224-1312
Fax No.: (323) 224-1595
with a copy to: Los Angeles Dodgers, Inc.
401 26th Street
Vero Beach, Florida 32961
Attn.: Craig B. Callan
Vice President, Spring Training
and Minor League Facilities
Tel. No.: (561) 569-4916
Fax No.: (561) 770-2424
and: Fox Baseball Holdings, Incorporated
P.O. Box 900
Beverly Hills, California 90213
Attn: Gary Ehrlich
Executive Vice President
Tel. No.: (310) 286-3818
Fax No.: (310) 286-3885
726decia.dm
Page 8of13
If to the County: Indian River County
1840 25t' Street
Vero Beach, Florida 32960
Attention: County Administrator
Phone: (561) 567-8000, Ext. 1408
Facsimile: (561) 978-1822
If to Developer: Vero Acquisition, LLLP
3801 PGA Boulevard, Suite 555
Palm Beach Gardens, Florida 33410
Attn.: George de Guardiola
President
Tel. No.: (561) 630-5055
Fax No.: (561) 630-8310
with a copy to: Lawrence B. Juran, Esq.
3801 PGA Boulevard, Suite 555
Palm Beach Gardens, Florida 33410
Tel. No.: (561) 630-5055
Fax No.: (561) 630-8310
Section 15. Provisions Severable
The provisions of this Declaration are severable and if any one or more of these provisions is
held to be invalid or unenforceable, in whole or in part, the remaining provisions and any partially
enforceable provisions shall be and remain binding and enforceable.
Section 16. Headings
The section headings in this Declaration have been provided solely for convenience of reference
and are not a part of, nor are they intended to govern, limit, or aid in the construction or interpretation of
any term or provision hereof.
Section 17. Time
Time is of the essence in the performance of this Declaration.
Section 18. Extended Meanings
The words "hereof," "hereto," "hereunder," and similar expressions used in this Declaration
relate to the whole of this Declaration and not only to the provisions in which such expressions appear.
This Declaration shall be read with all changes in number and gender as may be appropriate or required
by the context. Any reference to Developer includes, when the context allows, the employees, agents,
invitees, and licensees of Developer and all others over whom the Developer might reasonably be
expected to exercise control.
726decla.doc
Page 9 of 13
A
Section 19. No Public Dedication
Nothing contained in this Declaration will be deemed to be a gift or dedication of any portion of
the Baseball Facilities or the Adjacent Land to the general public or for any public purpose whatsoever.
Section 20. Entire Agreement
(A) This Declaration constitutes the entire agreement between the parties and the provisions
hereof supersede any and all prior and/or contemporaneous agreements or understandings relating to the
same subject matter. This Declaration may be amended only by a writing signed by both parties.
(B) This Declaration has been negotiated at arm's length between the parties hereto, both of
which are sophisticated and knowledgeable in the matters dealt with in this Declaration. Accordingly,
any rule of law (including California Civil Code Section 1654) or legal decision which would require
any ambiguities in this Declaration to be interpreted against the party that drafted it, is not applicable
and is hereby waived. The provisions of this Declaration shall be interpreted in a reasonable manner to
give effect to the purpose and intent of the parties.
(C) For the convenience of the parties, this Declaration may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall constitute one and the same Declaration.
[signatures begin on next page]
726decla.doc
Page 10 of 13
IN WITNESS WHEREOF, Dodgers, Developer, and the County have executed this Declaration
as of the date first written above.
WITNESSES: DODGERS:
LOS ANGELES DODGERS, INC.,
a Delaware corporation
By:
Print name: Name:
Title:
Print name.-
STATE
ame:STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by as of LOS
ANGELES DODGERS, INC., a Delaware corporation, on behalf of the corporation. He/She is
personally known to me or produced a valid driver's license as identification.
Notary Public
Print name:
My commission expires:
726decla.doc
Page 1 I of 13
WITNESSES: DEVELOPER:
VERO ACQUISITION, LLLP, a Florida limited liability
limited partnership
By: VERO ACQUISITION EQUITY
CORPORATION, a Florida corporation, sole
general partner of Vero Acquisition, LLLP
By:
Print name: Name:
Title:
Print name:
STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by as
of VERO ACQUISITION EQUITY CORPORATION, a Florida
corporation, on behalf of the corporation, which corporation is sole general partner of VERO
ACQUISITION, LLLP, a Florida limited liability limited partnership, on behalf of the limited liability
limited partnership. He/She is personally known to me or produced a valid driver's license as
identification.
Notary Public
Print name:
My commission expires:
726decla.doc
Page 12 of 13
WITNESSES: COUNTY:
Approved as to Form and INDIAN RIVER COUNTY, FLORIDA, a political
legal sufficiency subdivision of the State of Florida
By: By:
Print name: Name:
Special County Attorney Title:
Attest.--
Clerk
ttest: Clerk
STATE OF FLORIDA )
)ss:
COUNTY OF INDIAN RIVER )
The foregoing instrument was acknowledged before me this day of , 2001, by
as Chairman of Indian River
County, Florida, a political subdivision of the State of Florida, on behalf of such political subdivision,
who is personally known to me or produced a valid driver's license as identification.
Notary Public, State of Florida
Print Name:
My commission expires:
726decla.doc
Page 13 of 13
CONSENT
as the owner and holder of
a Mortgage and Security Agreement granted by Developer with respect to the Adjacent Land described
on Exhibit "B" hereto, which Mortgage and Security Agreement is intended to be recorded among the
Public Records of Indian River County, Florida, hereby consents to the foregoing Declaration of
Easements for Parking.
, a
By:
Print name: Name:
Title:
Print name:
STATE OF )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by as
of a
on behalf of the
He/She is personally known to me or produced a valid driver's license as identification.
Notary Public
Print name:
My commission expires:
726decla.doc
EXIIIBIT "A"
LEGAL DESCRIPTION OF BASEBALL FACILITIES
726decla.doc
EXHIBIT `B"
LEGAL DESCRIPTION OF ADJACENT LAND
726decla.doc
EXHIBIT C
FORM OF WAIVER AND ACKNOWLEDGMENT
f
WAIVER AND ACKNOWLEDGMENT
(LA Dodgers Spring Training Facility)
Indian River County, Florida (the "County") has entered into (a) a Memorandum of
Understanding (the "MOU"), dated July 24, 2000, by and among the County, the City of Vero Beach,
Florida, a municipal corporation (the "City"), Los Angeles Dodgers, Inc., a Delaware corporation,
the owner of record of the Land (the"Dodgers"), Fox Baseball Holdings Incorporated, a Delaware
corporation, ("Fox") and de Guardiola Development, Inc., a Florida corporation (the "Developer")
and (b) a Document Escrow Agreement dated September 1, 2000, by and between the County, the
City, the Dodgers, Fox, the Developer and Bryant, Miller and Olive, P.A., a Florida professional
corporation (the "Agent"), as amended by the parties thereto by the Agreement to Extend Escrow
dated May 15, 2001 (collectively, the "Document Escrow Agreement").
The undersigned hereby certifies as to the following: (i) all conditions and prior performance
requirements under the Memorandum of Understanding and the Document Escrow Agreement, or
any other documentation facilitating the transactions contemplated thereby, have been satisfied or
waived by the other parties to the MOU and the Document Escrow Agreement and any conditions
to the County's performance under the MOU and the Document Escrow Agreement have been
satisfied or are hereby waived, (ii) any conditions or objections to the closing on the acquisition of
the land by the County under the County Agreement for Sale and Purchase (as defined in the
Document Escrow Agreement)have been satisfied or are hereby waived, and (iii) the County agrees
that it will proceed with the issuance of its Bonds in anticipation of a closing on the acquisition of the
Land or before August 31, 2001 or such later date as may be required to coincide with the closing
on the County's bonds.
However, no provision of this Waiver and Acknowledgment is intended to impair the county's
authority, as the governing authority in whose jurisdiction the contemplated development is located,
to enforce the pertinent provisions of its Code of Ordinances. The County specifically reserves its
right to require adherence to that Code's applicable text.
This Waiver and Acknowledgment is hereby executed this day of August, 2001.
[Seal] INDIAN RIVER COUNTY, FLORIDA
Date: By:
Its:
Attest: