HomeMy WebLinkAbout2009-0721996555
THIS DOCUMENT HAS BEEN
RECORDED IN THE PUBLIC RECORDS
OF !NDIAN RIVER COUNTY FL
BK 2344 PG 1405, Pagel of 96
0&01;2009 at 09:43 AM,
RESOLUTION NO. 2009-072
JEFFREY K BARTON, CLERK OF COURT
A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA PROVIDING FOR
THE APPROVAL OF THE FORM OF AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A FACILITY LEASE AGREEMENT, CAPITAL RESERVE
ACCOUNT AGREEMENT, GUARANTY AGREEMENT, AND ESTOPPEL
CERTIFICATE IN CONNECTION WITH THE LEASING 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. 77-
19, enacted August 3, 1977 and effective August 9, 1977, as amended, and other applicable
provisions of law.
SECTION 2. FINDINGS. It is hereby found and determined that:
A. The County is the owner of a retained spring training facility (the "Facility")
commonly known as "Dodgertown", which Facility is not presently leased or operated by a
major league baseball team.
B. The County is desirous of leasing the Facility to Minor League Baseball for
operation by Minor League Baseball of the Facility for the promotion of baseball and non -
baseball sporting events and sports related activities, promotion of playing baseball
internationally, and holding meetings and conferences at the Facility.
C. Minor League Baseball will promote the Facility and Indian River County as
a tourist destination as part of its national advertising and promotional activities, which
advertising and promotion programs will constitute expenditures qualifying for the use of
tourist development tax receipts levied by the County pursuant to Section 125.0405, Florida
Statutes.
SECTION 3. APPROVAL OF THE FACILITY LEASE AGREEMENT. The Facility Lease
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 Facility Lease 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 CAPITAL RESERVE ACCOUNT AGREEMENT, The
Capital Reserve Account Agreement in substantially the form attached hereto as ExhibitB is hereby
approved and the Chairman or Vice -Chairman and the Clerk are hereby authorized and directed to
execute and deliver the Capital Reserve Account 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 5. APPROVAL OF THE GUARANTY AGREEMENT. The Guaranty Agreement
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 Guarantv
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 6. APPOINTMENT OF THE CAPITAL RESERVE ACCOUNT AGENT. The
Clerk of the Court of Indian River County, ex officio Clerk of the Board of County Commissioners,
is hereby appointed to serve as the "Capital Reserve Account Agent" under the Capital Reserve
Account Agreement.
SECTION 7. ESTOPPEL CERTIFICATE. The Estoppel Certificate in substantially the
form attached hereto as Exhibit D is hereby approved and the Chairman or Vice -Chairman and the
Clerk are hereby authorized and directed to execute and deliver the Estoppel Certificate 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 S. APPROVAL OF IMPROVEMENTS. The County recognizes that the
"Improvements" set forth in the Facility Lease Agreement are subject to adjustment, expansion and
deletion as a result of the negotiation for and receipt of bids for the costs of such Improvements and
as a result of any applicable site plan approval process. The County Administrator is expressly
authorized and directed to approve, on behalf of the County, any such adjustments, expansions and
deletions as a result of the bidding process and as a result of any site plan approval process, without
further action by this Commission.
SECTION 9. 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
2
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.
SECTION 10. 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 10. EFFECTIVE DATE. This Resolution shall be effective immediately upon its
adoption.
This -resolution was moved- for adoption by Commissioner O'Bryan, seconded by
Commissioner Wheeler, and upon vote was unanimously approved on this 191h day of May, 2009.
J.K. BARTON
CLERK CIRCUIT COURT
Attest:
Clerk of the Circuit Court
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
pedal County Attorney
COUNTYATTORNEY'S OFFICE
INDIAN RIVER COUNTY
1801 27th Street
Vero Beach, Florida 32960
3
BOARD OF COUNTY COMMISSIONERS
OF INDIAN RIVER COUNTY, FLORIDA
B
As: Chairman —
EXHIBIT A
FORM OF FACILITY LEASE AGREEMENT
Prepared By,
Record and Return to:
D. Scott Poley, Esq.
Vice President, Legal and General Counsel
National Association of Professional Baseball Leagues, Inc.
201 Bayshore Dr. SE
St. Petersburg, Florida 33701
Robert C. Reid, Esq.
Bryant, Miller Olive P.A.
201 South Monroe Street, Suite 500
Tallahassee, Florida 32301
FACILITY LEASE AGREEMENT
This FACILITY LEASE AGREEMENT ("Agreement") is made as of this 1st day of May
2009, by and between Indian River County, Florida, a political subdivision of the State of
Florida (hereinafter referred to as the "County"), and MiLB Vero Beach LLC, a Florida limited
liability company (hereinafter referred to as the "MiLB").
RECITALS
A.
WHEREAS, MiLB is
a single purpose entity affiliate
of the National Association
of Professional
Baseball Leagues, Inc.
(hereinafter referred to as the "National
Association");
B. WHEREAS, the National Association enjoys a rich baseball related history,
having been formed over a hundred years ago to advance professional baseball; and
C. WHEREAS, between 1949 and 2008, the Los Angeles Dodgers (formerly known
as the Brooklyn Dodgers) conducted spring training operations and played their spring training
home games at the facility located in Vero Beach, Florida, and known generally as "Dodgertown"
(the "Facility"); and
D. WHEREAS, the County, MiLB and the community in general desire to preserve
the rich traditions and history of "Dodgertown" and the Facility and recognize that the benefits to
the local community of continuing baseball, athletic and conference operations at the Facility are
unique and diverse, and include, but are not limited to, entertainment for the community, the
creation of new jobs and increased employment opportunities, increased tourist trade and
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promotional opportunities, direct and indirect tax revenues, and the enhancement of the
community's image; and
E. WHEREAS, because of the aforementioned benefits to the community, the
County purchased the Facility in 2000, and has and will incur the debt service designed to
accommodate the baseball spring training and other associated Facility uses; and
F. WHEREAS, in recognition of the commitment made by the County and the
community, MiLB desires to continue to conduct baseball, athletic, conference and associated
operations, including potentially spring training operations, at the Facility during the Term of this
Agreement and to operate, maintain, and manage the Facility in accordance with the terms
hereof: and
G. WHEREAS, MiLB desires to use and manage the Facility under the terms and
conditions specified herein.
COVENANTS
NOW THEREFORE, in consideration of the foregoing Recitals (which are hereby
incorporated into this Agreement) and the mutual promises and covenants set forth below, IT IS
AGREED AS FOLLOWS:
ARTICLE I
DEFINITIONS/EXHIBITS
Section 1.01. Exhibits. True and correct copies of all of the exhibits referenced in this
Agreement shall be initialed by the parties and attached to this Agreement, and such exhibits
shall thereafter be incorporated into this Agreement by this reference.
Section 1.02 Definitions. The following terms shall have the following meanings:
(a) Agreement means this Facility Lease Agreement between MiLB and the
County, and all of the attached exhibits.
(b) Capital Reserve Account means the repair and replacement account as
defined in Section 8.01, below.
(c) Capital Reserve Account Agent means the Clerk of the Circuit Court for
Indian River County, Florida, or a bank or trust company identified as such in the Capital
Reserve Account Agreement.
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(d) Capital Reserve Account Agreement means the Capital Reserve Account
Agreement by and among the County, MiLB, and the Capital Reserve Account Agent,
governing the maintenance of the Capital Reserve Account.
(e) Cessation of Use is defined in Section 10.04, below.
(f) City means the City of Vero Beach, Florida.
(g) Conn means Indian River County, Florida, a political subdivision of the
State of Florida.
(h) County Funds means the funds to be provided to MiLB by the County
pursuant to this Agreement or the Capital Reserve Account Agreement.
(i) Dodgers means the team owned by the Los Angeles Dodgers, LLC, a
Delaware limited liability company and their predecessors, the former users of the
Facility, as the context requires.
(j) Effective Date means theJ47 day of )N U 2009, the date upon
which this Agreement becomes effective.
(k) Existing Facilities means the baseball spring training facilities located on
the Land as they existed as of the Effective Date, including the spring training baseball
stadium known as "Holman Stadium", the eighty-nine (89) unit hotel facility, the
conference center with meeting and dining rooms, the clubhouse and weight room, indoor
batting and pitching cages, baseball administration building, four (4) baseball practice
fields, and two (2) half baseball practice fields.
(1) Facility means, collectively, the Land, the Existing Facilities, and, as the
context warrants, the Improvements and any additional improvements hereafter
constructed on the Land.
(m) FF&E means furniture, fixtures, and equipment located at Facility on
Effective Date and initially described in Exhibit "C" hereto, as same may be replaced or
substituted during the Term, which replacements and substitutions shall be reflected on
an updated Exhibit "C" from time to time.
(n) Holman Stadium means the baseball stadium improvements known as
Holman Stadium which is a part of the Existing Facilities.
(o) Improvements means the
improvements constructed or to be constructed
on the Existing Facilities
during
the term of this Agreement, or any extension thereof,
consisting of the addition
of field
lights
to two (2) of the existing playing fields in 2009
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and to an additional two (2) fields in 2010, and the conversion of two (2) half practice
fields to youth dimension fields in 2009.
(p) Initial Term is defined in Section 2.01, below.
(q)
Land
means
the
real
estate upon which the
Facility is located, as described
in Exhibit "A"
collectively,
and
the
real estate described in
Exhibit "B".
(r) Lease Year means a twelve month period commencing on May 1 of any
calendar year of the Term hereof and ending on April 30 of the following calendar year;
provided, however, that the First Lease Year shall commence as of the Effective Date and
end on the first April 30`h following the Effective Date.
(s) Liquidated Damages is defined in Section 10.05.
(t) Maintenance Standards means the standards of maintenance, repair, and
operations maintained by managers of comparable spring training facilities in comparable
markets in the State of Florida in accordance with reasonable commercial practices then
in use. The County hereby acknowledges and agrees that the manner in which the
Dodgers operated and maintained the Existing Facilities prior to the termination of their
Lease was consistent with or exceeded the standards of maintenance, repair, and
operations maintained by managers of comparable spring training facilities in comparable
markets in the State of Florida.
(u) Major League Baseball means the Office of the Commissioner of Baseball,
Major League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., Major
League Baseball Properties Canada Inc., Baseball Television, Inc., and/or any of their
respective present or future affiliates, assigns or successors.
(v) Parking Lease means the Parking Property Lease Agreement entered into
as of November 17, 2005 by and between the Dodgers and the City, which, inter alfa,
governs use rights for the Parking Property.
(w)
Parking
Property
means the real estate subject
to the Parking Lease
described in
Exhibit "B".
(x) Renewal Term is defined in Section 2.02, below.
(y) Repairs or Replacements means capital repairs or replacements made to
the fixtures, structures and/or improvements at the Facility, including the Improvements
upon their completion.
(z) Team means any Major League Baseball team.
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(aa) Term means the Initial Term and any Renewal Terms.
ARTICLE II
TERM/OPTIONS TO RENEW/RENT
Section 2.01. Initial Term. The "Initial Term" of this Agreement shall commence on the
Effective Date and shall expire on April 30, 2014, unless this Agreement is terminated earlier by
the parties pursuant to the provisions hereof.
Section 2.02. Renewal Term. For purposes of this Agreement, a "Renewal Term" means
a term of five (5) years commencing upon the expiration of the Initial Term or the immediately
preceding Renewal Term, if any.
Section 2.03. Option to Renew. MiLB shall have two (2) successive options to renew
this Agreement for a Renewal Term. MiLB shall exercise their right and option for the first
Renewal Term by serving written notice upon the County of their election to exercise said option
at least eighteen (18) months before the expiration of the then -current Term. MiLB shall
exercise their right and option for the second Renewal Term by serving written notice upon the
County of their election to exercise said option at least twelve (12) months before the expiration
of the first Renewal Term. If MiLB fails to provide such notice within the aforementioned time,
then MiLB's right and option to renew shall continue in full force until the County notifies MiLB
that the renewal notice has not been received and MiLB fails to exercise their renewal rights
within sixty (60) days after receipt of the County's notice since, it being the intention of the
parties that MiLB shall not lose any renewal right through inadvertence. Except for the reduction
in Liquidated Damages in Section 10.05 hereof, each Renewal Term shall be upon the same
terms and conditions as the Initial Term.
Section 2.04. Rent. MiLB shall pay to the County the sum of One Dollar (51.00) per
Lease Year as rent payable in advance. Receipt of such rent by the County is hereby
acknowledged.
ARTICLE III
MiLB'S USE OF THE FACILITY
Section 3.01. Lease and Grant of Management Rights with Respect to the Facility. The
County hereby leases to MiLB, and MiLB hereby leases from the County, the Land, the Facility
and the FF&E. The County hereby transfers to MiLB the food and beverage inventory and
consumables on the premises and reasonably associated with the Facility. Except as otherwise
provided in this Agreement, MiLB shall have the exclusive right and obligation to use, manage,
and operate the Facility at its sole discretion in accordance with the terms and purposes of this
Agreement. MiLB covenants to use the Facility in accordance with Section 5.01 hereof, which
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may include the promotion of baseball, attraction of Major League Baseball, training of umpires,
and promoting the playing of baseball internationally. During the Term, the County shall not
lease to or grant to any person other than MiLB, the right to use, manage, or operate the Facility,
subject to the provisions of Section 6.04 below.
Section 3.02. MiLB's Riehts and Obligations. Except as specifically provided in this
Agreement, MiLB shall be exclusively responsible for managing, operating, and maintaining the
Facility at its sole discretion and expense during the Term in accordance with the Maintenance
Standards. MiLB shall not cause, permit, or suffer any waste or damage, disfigurement, or injury
to the Facility, or the fixtures or equipment thereon, with the exception of reasonable wear and
tear, loss or damage by fire, natural catastrophe, or other casualty, or condemnation.
Notwithstanding anything to the contrary contained in this Agreement, MiLB shall not be
responsible for ad valorem real estate taxes, if any, assessed or collected with respect to the
Facility. The County shall not remove any FF&E from the Facility and MiLB shall have the
right, during the Term, to use all FF&E in place prior to or after the Effective Date. During the
Term, MiLB shall have, but not be limited to, the following rights, responsibilities, and
obligations in connection with the Facility:
(a) At its sole discretion, control the scheduling and use of the Facility as a
publicly operated spring training, athletic, entertainment and conference facility for all
baseball and non -baseball events;
(b) Perform all maintenance of the Facility, including by providing all of the
labor and materials required to keep the Facility clean and free of debris and by repairing,
maintaining, and replacing all components of the Facility consistent with the Maintenance
Standards;
(c) Maintain the Facility, including, but not limited to, the parking lots at the
Facility, the structural portions of the Facility, the foundation of the Facility, the exterior
structural walls of the Facility, all electrical, plumbing, heating, ventilating, air-
conditioning, mechanical and utility systems for the Facility or any portion thereof,
including any portion located in the Facility, in good order, condition, and repair, in a
clean, sanitary, and safe condition, and in accordance with all applicable laws and
regulations;
(d) Provide all security, crowd control, maintenance, cleaning, landscaping
and other personnel or independent contractors required for the proper maintenance and
operation of the Facility consistent with the Maintenance Standards;
(e) Obtain and maintain all commercial general liability insurance necessary
or appropriate to insure the liability of the County and MiLB with respect to the Facility
and property insurance. The insurance, as it protects the County's interests, shall be
subject to the County's reasonable approval and shall cause the County to be named as an
additional insured on such policies. Further provisions concerning insurance are set forth
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in Section 14.05, below. A certificate of insurance evidencing proof of such insurance
shall be provided to the County annually starting on the beginning date of the Term and
as further provided in Section 14.05, below;
(f) Set rates and charges for the use of the Facility by third parties;
(g) Advertise and promote all baseball and non -baseball events conducted at
the Facility, such advertising and promotion to mention or identify the County and/or the
City to the extent practicable (MiLB understands the importance of promoting the County
and the City and their image and desire and agree to assist in such regard);
(h) Select and employ all concessionaires, licensees and other contractors with
respect to the Facility, including, but not limited to, its parking lots, concession areas, and
advertising space; and
(i) Enter into lawful contracts in MiLB name relating to any and all of the
foregoing upon terms and conditions which are consistent with the Maintenance
Standards and the terms of this Agreement.
0) MiLB shall not remove from the premises any baseball memorabilia
located on or present at the Facility premises on the Effective Date, without prior County
written approval, which may be granted or denied in the sole discretion of the County.
Section 3.03.
Event
Control.
MiLB shall have
the right, at their sole discretion, to
cancel or postpone any event
to be held
at the Facility.
Section 3.04. Books and Records. All books and records of the Facility specifically
relating to MiLB's responsibilities under this Agreement which are required to be maintained
pursuant to applicable law or which are necessary to verify, the County's rights and MiLB's
obligations hereunder, except as the same may be specifically excepted from public disclosure by
any law, rule, regulation, or ordinance, shall be kept and retained in accordance with generally
accepted accounting principles and shall be subject to reasonable inspection by the County at the
Facility during regular normal business upon two (2) days prior written notice to MiLB. Books
and records shall include, but not be limited to, all records of expenditures from the Capital
Reserve Account. MiLB shall notify the County thirty (30) days prior to discarding or
destructing such records. Such books and records are subject to review and shall not include
profit and loss statements or any proprietary information that is not reasonably related to MiLB's
maintenance and operational responsibilities hereunder.
Section 3.05. Promotion as Tourist Destination. MiLB shall promote, as part of its
national advertising and promotional programs, the Facility, the City and Indian River County as
tourist destinations ("MiLB Tourism Development Activities"). Each Lease Year the County
covenants to budget and appropriate, by amendment if necessary, proceeds of the tourist
development tax levied pursuant to Section 125.0104, Florida Statutes (the "Tourist
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Development Tax") to the extent such funds are legally available to the County for such
appropriation in order to provide during the Initial Term, and any Renewal Term, the following
funding to be used to pay costs directly associated with MiLB's Tourism Development Activities
or to reimburse MiLB for such costs previously paid by MiLB during the corresponding Lease
Year. Such annual obligations shall be as follows: $50,000 for the first Lease Year; $55,000 for
the second Lease Year; $60,500 for the third Lease Year; $66,550 for the fourth Lease Year; and
$75,000 for the fifth Lease Year and each subsequent Lease Year during any Renewal Term,
unless another amount is agreed upon in writing by the parties.
ARTICLE IV
MAINTENANCE RESPONSIBILITIES
Section 4.01. MiLB's Rights and Obligations. During the Term, MiLB shall be
responsible for the repair, operation, and maintenance of the Facility, and shall have, but not be
limited to, the rights, responsibilities and obligations specified in Sections 4.02 through 4.05
below.
Section 4.02. Maintenance. From the Capital Reserve Account and, upon depletion
thereof, from their own funds, MiLB shall construct and pay for any repairs, replacement and
improvements for the Facility as are required:
(a) To satisfy the Maintenance Standards;
(b) To comply with all applicable laws, ordinances and regulations, including,
but not limited to the requirements of the Americans with Disabilities Act of 1990
("ADA") any amendments thereto, including Title II, Structural and Title III,
Programmatic Accessibility Standards as well as any future additions;
(c) To meet the standards and regulations of Major League Baseball; and,
(d) The County shall pay or reimburse MiLB up to a total of $800,000 (eight
hundred thousand dollars), payable in eight monthly installments of $100,000 (one
hundred thousand dollars) as a maintenance subsidy for eight (8) months beginning May
2009 and ending with the final subsidy payment in December 2009. The maintenance
subsidy shall be prorated for each day of actual possession of the Facility by MiLB, if
possession in any month is for less than a full calendar month.
Section 4.03. Operation. MiLB shall provide and pay for, solely from funds of MiLB or
the Capital Reserve Account, if appropriate, all costs and expenses required for the operation and
maintenance of the Facility which are not, by the terms of this Agreement, specifically required
to be provided and paid for by the County, including, but not limited to, all personnel (including
supervisory- staff), labor, equipment, telephone, water, sewer, storm water, and materials. All
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expenditures from the Capital Reserve Account shall be in accordance with Article VIII hereof.
Costs for which MiLB is responsible shall include, but not be limited to, taxes (except for ad
valorem real property taxes, if any, imposed upon the County in connection with the Facility),
gas, electricity and other utilities related to operation of the Facility, and production of all events
taking place at the Facility.
Section 4.04. Taxes. MiLB shall pay all taxes associated with the operation of the
Facility, including, but not limited to, sales taxes, except that the County shall pay that portion of
the ad valorem real property taxes levied on the Land and all structures and improvements
constituting the Facility.
Section 4.05. Liaison. MiLB shall name a person to be the liaison to work with the
County with respect to coordinating the mutual responsibilities of MiLB and the County. MiLB
hereby designates Mr. Craig Callan as the liaison unless and until a new person is designed in
writing by MiLB.
Section 4.06. Limitations. MiLB's rights and obligations under this Agreement are
subject to the following additional limitations:
(a) No contract entered into pursuant to this Agreement may impair any right
of the County hereunder.
(b) MiLB shall not, without the County's consent, enter into any contract
extending beyond the expiration date of the Term, as the Term is defined when any such contract
is executed by MiLB.
(d) MiLB shall not knowingly occupy or use the Facility for any purpose or in
any manner that is unlawful.
(e) Within the policies and standards set by the County pursuant to this
Agreement, MiLB shall function as an independent contractor in fulfilling the duties required by
this Agreement. All staff required by MiLB to accomplish their obligations under this
Agreement shall be employees of MiLB and not the County.
(f) MiLB takes the Facility "as is", both as of the Effective Date and upon
completion of any Improvements, with no warranty from the County as to condition.
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(c) MiLB shall take no action which may result in the attachment of a lien or
cloud on
the
County's interest in or title to the Land,
the Facility, the FF&E, or any other real or
personal
property purchased or paid for with funds
provided by the County. If, as a result of
MiLB's actions, a lien or cloud is attached to the
County's interest or title to the Land, the
Facility,
the
FF&E, or any other real or personal
property purchased or paid for with funds
provided
by
the County, MiLB shall immediately
take all reasonable and necessary steps to
remove such
lien or cloud.
(d) MiLB shall not knowingly occupy or use the Facility for any purpose or in
any manner that is unlawful.
(e) Within the policies and standards set by the County pursuant to this
Agreement, MiLB shall function as an independent contractor in fulfilling the duties required by
this Agreement. All staff required by MiLB to accomplish their obligations under this
Agreement shall be employees of MiLB and not the County.
(f) MiLB takes the Facility "as is", both as of the Effective Date and upon
completion of any Improvements, with no warranty from the County as to condition.
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(g) MiLB shall repair, replace, provide and maintain, at its expense, all
equipment necessary to perform their responsibilities hereunder; and, such equipment shall at all
times be deemed to be included as a part of the FF&E and run with and be part of the Facility.
(h) Provided, however, at the termination of this Agreement, any equipment
(exclusive of fixtures and FF&E) which has been purchased and paid for by MiLB with funds
other than the funds provided by the County, may be identified and removed by MiLB upon
notice to the County.
(i) Except as may be provided in this Agreement, MiLB shall not undertake
any capital improvements to the Facility without the permission of the County, which permission
shall, when not otherwise governed by this Agreement, not be unreasonably withheld.
0) If the County reasonably believes that MiLB's failure to comply with any
of their obligations under this Agreement involves a "life safety issue", as hereinafter defined, the
County shall have an immediate right to correct the life safety issue and the reasonable costs and
expenses incurred by the County in correcting the life safety issue shall be due and payable by
MiLB to the County within thirty (30) days after the submission of a statement to MiLB for the
payment of the same. If such amount is not paid when due, it shall bear interest at the prime rate
published by the Wall Street Journal from time to time from the date that MiLB received the
County's statement until the date payment was made. For purposes of this Agreement, a "life
safety issue" shall mean a situation which imposes an immediate threat of bodily harm or death
to any users or occupants of the Facility.
(k) Except as otherwise expressly authorized in this Agreement, MiLB shall
not construct any additional buildings or structures on any portion of the Facility, or make any
structural or exterior changes to the Facility, without the prior written approval of the County,
which approval shall not be unreasonably withheld. MiLB shall not make major alterations or
modifications to the Facility without the prior written approval of the County, which approval
shall not be unreasonably withheld. All such permanent improvements, alterations, or additions
placed on the Facility by MiLB shall be conveyed by MiLB to the County by a quit -claim deed
upon the completion of such improvements, alterations or additions.
(1) On or before the expiration date of this Agreement, or its earlier
termination as provided herein, MiLB shall remove all of its personal goods and effects including
any equipment (exclusive of fixtures and FF&E) which have been purchased or paid for by MiLB
with funds other than funds provided by the County, repair any damage caused by such removal,
and surrender and deliver the Facility (together with any and all required and existing FF&E) in
an "as is" condition. Any personal property or effects not removed within thirty (30) days after
the expiration date of this Agreement or its earlier termination as provided herein shall be
deemed to have been abandoned by MiLB, and may be retained or disposed of by the County, in
its sole discretion, in accordance with applicable law.
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(m) Upon the expiration or earlier termination of this Agreement, MiLB shall
return to the County the Facility and all the then existing FF&E, together with any other real or
personal property purchased or paid for with funds provided by the County, free and clear of any
contractual obligations or other legal encumbrances granted by MiLB, except for utility
easements and other encumbrances necessary for the maintenance and operation of the Facility.
If requested by the County following expiration or earlier termination of this Agreement. MiLB
shall provide an unqualified quit claim deed or bill of sale for any real or personal property
associated with this Agreement, including the then existing FF&E, or any other real or personal
property purchased or paid for with funds provided by the County, any abandoned property, or
the Facility.
(n) The Facility shall not be used for the manufacture or storage of flammable,
explosive or Hazardous Materials (as defined below), except for Hazardous Materials typically
found for use or sale in retail stores, including supermarkets and dry cleaning stores, and/or
typically found for use in comparable spring training facilities. For purposes of this Agreement,
"Hazardous Materials" shall mean any containment, chemical, waste, irritant petroleum product,
waste product, radioactive material, flammable or corrosive substance, explosive, poly-
chlorinated biphenyls, asbestos, hazardous toxic substance, material or waste of any kind, or any
other substance that any environmental law regulates. "Hazardous Materials" shall include, but
not be limited to, substances defined as "hazardous substances", "hazardous materials", or "toxic
substances" in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act,
39 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq.; all applicable state and local laws; and in the regulations adopted and publications
promulgated pursuant to said laws or any amendments or addenda thereto.
(o) If MiLB pays the rent and complies with all other terms of this Agreement,
MiLB may occupy and enjoy the premises of the Facility for the full Term and any renewals
thereof, subject to the provisions of this Agreement.
ARTICLE V
OPERATIONAL COVENANT
Section 5.01. MiLB Activities. Except if MiLB is prevented from doing so by any of the
events described in Article XV, below, or by a rule, regulation, directive, order, bulletin, or
agreement of Major League Baseball, MiLB shall, each Lease Year during the Term, use its best
efforts to promote baseball and non -baseball sporting events and sports related activities, attract
Major League Baseball, promote playing baseball internationally, and hold meetings and
conferences at the Facility. Except for periods of active maintenance or renovations to the
Facility, MiLB shall maintain, operate and hold the Facility open for business during ordinary
and customary business hours throughout the Term in accordance with the terms and provisions
of this Agreement.
Page 11 of 29
Section 5.02. Rules and Regulations. MiLB shall comply with all applicable laws,
ordinances, rules and regulations, including, but not limited to, the rules, regulations, directives,
orders, bulletins, or agreements of Major and Minor League Baseball.
Section 5.03. Spring Training and Other Major League Baseball Activities. MiLB
acknowledges the community's desire to host, and agrees to promote the use of the Facility for
Major League Baseball spring training activities and game events. MiLB agrees to negotiate
with any Team expressing an interest in conducting spring training activities or game events at
the Facility and will use its best efforts to enter into a sub lease or other use arrangement on such
terms and conditions as MiLB deems commercially reasonable or feasible. Any such use by a
Team shall require prompt review and approval by the County Administrator, which shall not be
unreasonably withheld. In the event such approval is not timely forthcoming or otherwise
withheld, MiLB may seek approval from the County Commission.
ARTICLE VI
COUNTY'S USE OF THE FACILITY; PARKING AGREEMENT
Section 6.01. Right of Entry. During the Term, the County shall have the right to enter
into and upon any and all parts of the Facility for the purpose of examining the same with respect
to the obligations of the parties under this Agreement upon two (2) days prior written notice to
MiLB (or without prior notice in the event of a "life safety issue" as defined in Section 4.060),
above, but with immediate notice thereafter).
Section 6.02. Advertising and Promotion. If, during the Term, MiLB has any unsold
advertising display space (e.g., billboards, outfield signs, etc.) at the Facility, then, subject to
MiLB's prior reasonable approval as to the content, design, frequency of display, and placement
of any such advertisements or promotional materials, the County shall be permitted to have
advertisements or other promotional materials and information for the County and/or the City
displayed at the Facility in such unsold advertising display space without charge or
reimbursement. Nothing contained in this Agreement shall require MiLB to remove or substitute
any paid advertisement or promotional materials displayed at the Facility in favor of the County's
and/or the City's advertisements or promotional materials, and all revenue-producing advertisers
obtained by MiLB shall have priority of use over such advertising display space. In addition,
nothing contained in this Agreement shall require MiLB to create new advertising display space
or to increase the amount advertising display space, nor shall MiLB be prohibited or restricted
from decreasing the amount advertising display space at the Facility.
Section 6.03. Right to Use the Facility. In addition to all of the rights specifically granted
to MiLB in this Agreement, MiLB shall have the right to use the Facility in any manner and/or
for any lawful purpose that MiLB deems appropriate in exercise of their sole and absolute
discretion, subject to the terms of this Agreement.
Page 12 of 29
Section 6.04. The County's Use of Holman Stadium and the Practice Fields. The County
shall have the right to use Holman Stadium and/or the practice fields, for up to ten (10) days per
Lease Year, together with any use associated with the community's annual "Harvest Festival"
each year, at no charge to the County (other than reimbursing MiLB for any operating expenses
incurred by MiLB as a result of the County's use of Holman Stadium and/or the practice fields).
The dates during which the County may use Holman Stadium and/or the practice fields shall be
selected by mutual agreement of the parties; provided that, if the parties cannot agree on the
dates, MiLB's reasonable selection of dates shall be final and controlling. Provided, however,
that MiLB will defer to the County and cooperate in scheduling and making the Facility available
for the community's annual "Harvest Festival." The County may use Holman Stadium and/or the
practice fields only for functions which do not directly compete with revenue -generating events
which have been otherwise arranged by MiLB. Moreover, the County's use of Holman Stadium
and/or the practice fields must not interfere in any way with MiLB's use and quiet enjoyment of
the Facility. The County shall not use or authorize the use of Holman Stadium and/or the
practice fields in any manner which would have a material detrimental impact on Holman
Stadium and/or the practice fields, and the County shall be and remain solely responsible for any
damage or destruction to Holman Stadium and/or the practice fields by the County or its
assignee. The County, or its assignee, shall be entitled to retain the revenues from ticket sales for
its events, and concessions sold during the events when Holman Stadium and/or the practice
fields are utilized by the County; provided, however, that although MiLB covenants to cooperate
with the County in such endeavors, MiLB shall not be required to provide concession
management services and/or any other related services during any County event. In all cases,
MiLB shall be reimbursed by the County for any operating costs and expenses incurred by MiLB
as a result of the County's use of Holman Stadium and/or the practice fields, including, but not
limited to, the cost of any parking attendants, ticket takers, security personnel, clean-up crews,
and the like provided by MiLB. Prior to using Holman Stadium and/or the practice fields as
provided herein, the County shall cause MiLB to be named as an additional insured on the
County's general liability insurance policy and shall deliver to MiLB a certificate of insurance
which verifies the existence of the policy and the fact that MiLB is named as an additional
insured.
Section 6.05. Parking. The property described on Exhibit "B" hereto, consisting of
approximately 9.1297 acres adjacent to the Existing Facilities (the "Parking Property"), is owned
by the County, subject to the terms and provisions of the Parking Lease and resulting use by the
City. The County assumed the rights and obligations of the Dodgers under the Parking Lease,
and on the Effective Date MiLB shall accept and assume from the County the same prior rights
and obligations of the Dodgers as provided for in the Parking Lease for the Term of this
Agreement. Accordingly, all references in the Parking Lease to the "Facility Lease Agreement"
shall be reasonably construed to hereafter refer to this Agreement, and in the event of any
inconsistency between any documents, this Agreement shall be deemed to supersede any prior
document. In the event that this Agreement expires or is terminated before the Parking Lease
expires or is terminated, the County shall assume all of the rights and obligations of MiLB under
the Parking Lease and the City shall be entitled to continue to occupy and use the Parking
Page 1 B of 29
Property in accordance with the terms and conditions of the Parking Lease until it expires or is
terminated.
Section 6.06. Emergency Staging Area. As a mutual benefit to the County and
MiLB, during the Term, MiLB agrees to provide the Facility as a staging area for responsive
emergency personnel and equipment, for natural disaster preparations, response, and potential
shelter. Notwithstanding anything to the contrary, neither the County nor the public may use the
stadium field. In the event the County uses the Facility as an emergency staging area, the County
agrees to diligently employ its best efforts to completely remove all disaster/hurricane-related
debris and materials from the Facility within fourteen (14) days after any emergency or use for
the purpose of this Section. Further, the County shall be responsible for all damage, clean-up,
repairs and costs and expenses in connection with the use of the Facility, and the County shall
promptly clean up, repair and restore the Facility, all at no cost or liability to MiLB.
Notwithstanding anything in this Agreement to the contrary, the County shall be responsible for
any liability arising out of or in connection with the County's or the public's use of the Facility
pursuant to this Section 6.06, and the County agrees not to hold MiLB responsible, and thus
MiLB will be held harmless, for such use of the Facility by the County or the public or its failure
to timely remove all disaster/hurricane-related debris and material from the Facility after any
emergency or use for the purposes of this Section. The County agrees to use its best efforts to
seek "facilities hardening" funds and/or other funds available for natural disasters from the State
and/or Federal government and to apply such funds for the sole and the exclusive use of the
Facility. In the event the County receives Federal Emergency Management Agency ("FEMA")
proceeds or other funds for damage to or destruction of the Facility, the County agrees to
promptly apply such FEMA proceeds or other funds towards the clean up, repair, restoration,
construction or reconstruction of the Facility. To the extent that the County utilizes the Facility
for sheltering, the County shall be responsible for any shelter requirements and all costs
associated therewith.
ARTICLE VII
REVENUES
Section 7.01. Revenues. During the Term, MiLB shall control, collect, receive, and retain
all revenues generated by any means at or in connection with the Facility, including, but not
limited to, all revenues from ticket sales, food and beverage sales, merchandise sales,
concessions and products sales, novelties, parking, telecast and broadcast rights, pouring rights,
advertising, sponsorship, promotional and signage rights, permitted Facility naming, affiliation,
and or sponsorship rights, and any other revenues derived or generated in connection with
baseball and non -baseball events held at the Facility (exclusive of any County use events).
Section 7.02. Rebranding; Naming Rights.
Page 14 of 29
(a) The County will pay MiLB up to a total of $100,000.00 (one hundred
thousand dollars) towards "rebranding" the Facility as a facility operated by MiLB. These
funds will be paid or advanced based upon actual and verifiable costs presented by MiLB.
Rebranding will include banners, signage and paint schemes as determined by MiLB.
(c) The County will not object to MiLB using the common or historical name
"Dodgertown" in operating the Facility. In agreeing to this use, MiLB acknowledges that
neither the City nor the County has made any representation that either holds or possesses
any rights to the use of the name "Dodgertown", or that either has the authority to
authorize such use.
ARTICLE VIII
CAPITAL IMPROVEMENTS AND REPAIR
Section 8.01. Capital Reserve Account. During the Term (until depleted), the County
shall establish a trust account with a depository (the "Capital Reserve Account") in which County
Funds shall be deposited pursuant to the Capital Reserve Account Agreement. The Capital
Reserve Account shall be funded and maintained in accordance with the provisions of the Capital
Reserve Account Agreement. All funds in the Capital Reserve Account shall be County Funds.
All withdrawals from the Capital Reserve Account shall require the co -signature of the County
Administrator or his designee. The Capital Reserve Account shall be used by MiLB in making
Repairs and Replacements to the Facility. MiLB shall consult with the County with respect to
any expenditure from the Capital Reserve Account and any such expenditure shall be subject to
the approval of the County, which approval will not be unreasonably withheld and shall be
granted in accordance with the Capital Reserve Account Agreement. Any amounts remaining in
the Capital Reserve Account at the expiration of the Term or earlier termination of this
Agreement shall be paid to the County. MiLB shall be solely responsible for the cost of any
Repairs or Replacements which exceed the funds available in the Capital Reserve Account and
any applicable available insurance proceeds from policies of insurance provided at MiLB's
expense.
Section 8.02. Contributions to the Capital Reserve Account. On or before the Effective
Date, or such later date as may be mutually agreed to by the parties, the County shall deposit into
the Capital Reserve Account the sum of $2,000,000.
Page 15 of 29
(b)
At all times during the Term, neither the County nor MiLB shall have the
right to
sell
naming rights to Holman
Stadium; and neither the County nor MiLB shall
change
the
name of Holman Stadium.
MiLB shall not change the name of any other
portion
of the
Facility without the prior
review and consent of the County, which consent
shall not be
unreasonably withheld.
(c) The County will not object to MiLB using the common or historical name
"Dodgertown" in operating the Facility. In agreeing to this use, MiLB acknowledges that
neither the City nor the County has made any representation that either holds or possesses
any rights to the use of the name "Dodgertown", or that either has the authority to
authorize such use.
ARTICLE VIII
CAPITAL IMPROVEMENTS AND REPAIR
Section 8.01. Capital Reserve Account. During the Term (until depleted), the County
shall establish a trust account with a depository (the "Capital Reserve Account") in which County
Funds shall be deposited pursuant to the Capital Reserve Account Agreement. The Capital
Reserve Account shall be funded and maintained in accordance with the provisions of the Capital
Reserve Account Agreement. All funds in the Capital Reserve Account shall be County Funds.
All withdrawals from the Capital Reserve Account shall require the co -signature of the County
Administrator or his designee. The Capital Reserve Account shall be used by MiLB in making
Repairs and Replacements to the Facility. MiLB shall consult with the County with respect to
any expenditure from the Capital Reserve Account and any such expenditure shall be subject to
the approval of the County, which approval will not be unreasonably withheld and shall be
granted in accordance with the Capital Reserve Account Agreement. Any amounts remaining in
the Capital Reserve Account at the expiration of the Term or earlier termination of this
Agreement shall be paid to the County. MiLB shall be solely responsible for the cost of any
Repairs or Replacements which exceed the funds available in the Capital Reserve Account and
any applicable available insurance proceeds from policies of insurance provided at MiLB's
expense.
Section 8.02. Contributions to the Capital Reserve Account. On or before the Effective
Date, or such later date as may be mutually agreed to by the parties, the County shall deposit into
the Capital Reserve Account the sum of $2,000,000.
Page 15 of 29
(a) Any part of said $2,000,000 that is not expended by the expiration of the
Term or earlier termination of this Agreement shall be paid to the County at such time.
(b) The parties will jointly develop and update periodically a capital
improvement plan or other approach which will provide guidance in the use of the Capital
Reserve Account. Capital improvements will generally be considered to be any capital
repair, replacement or improvement to the Facility, including by way of examples and not
limitation capital equipment, which will extend the useful life of the Facility whose cost
is in excess of $1,000 and is reasonably determined necessary for the maintenance and
upkeep of the Facility.
(c) Beginning with the first Renewal Term and MiLB's sixth year of
occupancy (beginning in May, 2014), MiLB and the County each agree to add $50,000.00
(fifty thousand dollars) per Lease Year to the Capital Reserve Account as a means of
supplementing and/or increasing the Capital Reserve Account balance.
Section 8.03. Immediate Facility Improvements.
(a) The County, at its expense, will add field lights to two existing playing
fields in 2009 and will add field lights to two other existing playing fields in 2010. The
County shall not pay for these additional lights out of the Capital Reserve Account. Field
lighting for those four additional playing fields shall meet the requirements of Class AAA
and Class AA field lighting for a new facility which are 100fc (foot candle) average in
infield and 70fc average in outfield.
(b) The County will convert two existing half -fields into youth -dimensioned
playing fields in 2009 at its expense. The County shall not pay for these field conversions
out of the Capital Reserve Account.
ARTICLE IX
DOCUMENTS AND CERTIFICATES
Section 9.01. Documents and Certificates. Each party shall supply to the other such
documents and certificates as are reasonably available or procurable, and necessary for the
purpose of obtaining certificates from the State of Florida Office of Tourism, or for any other
purpose reasonably related to the obligations of the parties, including, but not limited to, the
County's funding or administration of this Agreement and ownership of the Facility, or to
consummate the transactions or objectives described in this Agreement.
Page 16 of 29
ARTICLE X
DEFAULT/REMEDIES
Section 10.01. MiLB's Default. The occurrence of any one or more of the following
events constitutes a "Default" by MiLB under this Agreement:
(a) Failure by MiLB to observe or perform in any material respect any
covenant, agreement, condition, or provision of this Agreement, if such failure continues
for thirty (30) days after written notice thereof has been delivered by the County to MiLB;
provided, however, that MiLB shall not be in Default with respect to matters which
cannot reasonably be cured within thirty (30) days so long as within such thirty (30) day
period, MiLB commences such cure and diligently proceeds to complete the same
thereafter;
(b) The levy upon, under execution or the attachment by legal process, MiLB's
interest hereunder, or the filing or creation of a lien in respect of such interest, which
levy, attachment, or lien is not released, discharged or bonded against within one hundred
eighty (180) days from the date of such filing;
(c) MiLB is finally adjudicated insolvent or bankrupt or admit in writing their
inability to pay its debts as they mature, or make an assignment for the benefit of
creditors, or apply for or consent to the appointment of a trustee or receiver for MiLB or
for the major part of its property;
(d) A trustee or receiver is
appointed for MiLB or for the major
part of
their
property and such trustee or receiver
is not discharged within one hundred
eighty (180)
days after such appointment; or,
(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other proceedings for relief under any bankruptcy law, or similar law
for the relief of debtors, are instituted by or against MiLB, and, if instituted against MiLB,
are allowed against MiLB or are consented to by MiLB or are not dismissed within 180
days after such institution, to the extent permitted by law.
If a Default occurs, the County shall have the rights and remedies set forth in this Agreement,
which shall be distinct, separate, and, to the extent not mutually exclusive, cumulative, and shall
not operate to exclude or deprive the County of any other right or remedy allowed it by law or
equity.
Section 10.02. County Default. In the event of any failure by the County to observe or
perform any material covenant, agreement, condition, or provision of this Agreement wherein
MiLB's remedies on account thereof are not otherwise specifically provided for in this
Agreement, and if such failure shall continue for thirty (30) days after notice thereof has been
Page 17 of 29
delivered by MiLB to the County, then the County shall be deemed to be in Default hereunder;
provided, however, that the County shall not be in Default with respect to matters which cannot
reasonably be cured within thirty (30) days so long as within such thirty (30) day period, the
County commences such cure and diligently proceeds to complete the same thereafter.
Section 10.03. Remedies. In the event of a Default by either party (other than a Cessation
of Use by MiLB), the parry not in Default shall be entitled, as a non-exclusive remedy, and in
addition to or in lieu of an action for damages, to seek an injunction or decree for specific
performance or equitable relief from a court of competent jurisdiction to enjoin or remedy the
Default.
Section 10.04. Cessation of Use by MiLB. If, at any time during the Initial Term (and
any Renewal Term), MiLB ceases to operate the Facility as described in Section 5.01 hereof,
such event shall constitute a "Cessation of Use" of the Facility by MiLB. Notwithstanding
anything to the contrary contained in this Agreement, a Cessation of Use of the Facility by MiLB
shall entitle the County to terminate this Agreement by giving MiLB ten (10) days written notice
of termination. MiLB shall have ten (10) days after receipt of the aforementioned notice of
termination to renounce the Cessation of Use by confirming to the County its intention to
continue to use the Facility during the Term in the manner described in Section 5.01 hereof and
in fact demonstrating that it is reasonably complying with its operational covenant. A
termination pursuant to the provisions of this Section 10.04 shall become effective upon the
expiration of MiLB's ten (10) day cure period, or its repeated failure to demonstrate that it is
reasonably complying with its operational covenant as provided by this Section after notice by
the County.
Section 10.05. Liquidated Damages. If this Agreement is terminated by the County
during the Initial Term or any Renewal Term as the result of a Default by MiLB or a Cessation of
Use by MiLB, then MiLB shall pay to the County, as "Liquidated Damages" and in lieu of all
other remedies and/or damages of any type which may be available to the County; and, such
Liquidated Damages shall be $300,000 during the Initial Term, $200,000 during the first
Renewal Term, and $150,000 during the second Renewal Term.
ARTICLE XI
ENFORCEABILITY
Section 11.01. Binding Effect; Enforceabilitv. The terms and provisions set forth in this
Agreement shall be binding and enforceable by and against the parties in accordance with the
terms hereof.
Page 18 of 29
ARTICLE XII
ASSIGNMENT/SUBLEASE
Section 12.01. Assignment. This Agreement may not be assigned by either parry without
the prior written consent of the other party, except that this Agreement may be assigned by MiLB
to any person or entity who acquires a Team (by any form of acquisition), with the approval of
Major League Baseball, provided that any such assignee explicitly assumes in writing MiLB's
duties and responsibilities under this Agreement (in which case the liability of MiLB shall cease
with respect to liabilities accruing from and after such transfer).
Section 12.02. Sublease.
(a) MiLB may sublease, at any time during the Term, any portion of the
Facility. for ongoing retail, commercial and/or professional purposes as long as such
activity meets all local zoning codes and remains an activity permitted by Section 5.01
hereof. All revenues derived from subletting any of the foregoing shall be retained solely
by MiLB. Any such sublease shall remain subordinate to this Lease.
(b) At the County's request, MiLB agrees to promptly consider making the
Facility available to a Team for traditional spring training uses in the manner and subject
to the terms provided in Section 5.03 hereof. In addition MiLB will work with Major
League Baseball to schedule other Major League Baseball events at the Facility.
(c) MiLB shall not sublease all or substantially all of the Facility without the
prior written approval of the County, which approval shall be at the sole discretion of the
County, and no such sublease shall be for a term which extends beyond the underlying
lease term without the express prior written consent of the County.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices. Any notice required by or permitted under this Agreement shall
be in writing and shall be deemed delivered when delivered by hand or by overnight delivery
service, addressed as follows (or to such other address as a party shall inform the other party):
Page 19 of 29
If to the County: Indian River County
1801 27`h Street
Vero Beach, Florida 32960-3388
Attention: County Administrator
Phone: (772) 226-1408
Fax: (772) 978-1822
Copy to: Bryant Miller Olive P.A.
101 N. Monroe Street, Suite 900
Tallahassee, Florida 32301
Attention: Robert C. Reid, Special County Attorney
Phone: (850) 222-8611
Fax: (850) 222-8969
If to MiLB: Pat O'Conner, President & CEO
Minor League Baseball
National Association of Professional Baseball Leagues, Inc.
201 Bayshore Dr. SE/ P.O. Box A
St. Petersburg, Florida 33701/ 33731
Phone: (772) 456-1705
Fax: (727) 821-5819
Copy to: Scott Poley, General Counsel
Minor League Baseball
National Association of Professional Baseball Leagues,
Inc., as the Managing Member of MiLB
201 Bayshore Dr. SE/ P.O. Box A
St. Petersburg, Florida 33701/ 33731
Phone: (772) 822-6937 ext 1714
Fax: (727)821-5819
Section 13.02. Rights Concerning Adjacent Lands. The County will assist MiLB in
seeking and securing a "right" to direct and determine the use of the 37 -acres included in the
former Dodgertown Golf Club Property ("Golf Course Property") such that the uses and
structures thereon are compatible with and support the operation of MiLB activities. In the event
the Golf Course Property is not available for such use, the County will assist MiLB in seeking a
comparable property upon which to develop athletic fields, facilities and structures to support the
operation of MiLB activities.
Section 13.03. Current Employees. MiLB agrees to consider former Dodgertown
employees when staffing the Facility. No current or former employee is guaranteed employment
by MiLB as a result of this Agreement. MiLB is not assuming any employee commitments made
by the County relative to current staff working at the Facility.
Page 20 of 29
Section 13.04. Amendment. This Agreement may be amended only in writing executed
by both parties.
Section 13.05. Entire Agreement. This Agreement, including its exhibits, constitutes the
entire agreement between the parties and supersedes all prior or contemporaneous agreements
(whether oral or written) between them.
Section 13.06. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida.
Section 13.07. Counterparts. This Agreement may be executed in two or more
counterparts which have been signed and delivered by each of the parties (a party may execute a
copy of this Agreement and deliver it by facsimile transmission; provided, however, that any
such party shall promptly deliver an original signed copy of the Agreement).
Section 13.08. Jurisdiction and Venue. The exclusive, convenient, and proper venue for
any legal proceeding arising out of, or related to, this Agreement shall be Circuit Court for the
Nineteenth Judicial Circuit, in and for Indian River County, Florida Division. Each party waives
any defense, whether asserted by motion or pleading, that the Indian River Circuit Court is an
improper
or inconvenient venue. Moreover, all parties to this Agreement, persons and entities
alike, consent to the personal
jurisdiction of the Circuit Court,
Nineteenth Judicial Circuit, in and
for Indian
River County, and
irrevocably waive any objections
to said jurisdiction.
Section 13.09. Effective Date. This Agreement shall be effective on the Effective Date.
Section 13.10. Time of Essence. Time is of the essence in the performance of this
Agreement.
Section 13.11. Damage to Property. MiLB shall not have any liability for loss or damage
to property owned or leased or otherwise in the possession, control, or custody of the County,
that is wrongly or incorrectly on the premises of the Facility, unless such damage is caused solely
or partially by MiLB's negligence or willful misconduct, in which case MiLB shall be liable for
only the portion so caused.
Section 13.12. Consequential Damages. Under no circumstances shall either party or any
of its subcontractors, suppliers and vendors be liable to the other party for any indirect, special,
incidental, and/or consequential damages, including, but not limited to, loss of profits or
interruption of business, whether such damages are alleged in tort, contract, indemnity, or
otherwise, even if such party has been apprised of the possibility of such damages. To the extent
permitted by law, each party hereby releases the other party and the other party's subcontractors,
suppliers and vendors therefrom.
Page 21 of 29
Section 13.13. Headings. The headings used herein are for convenience of reference
only and shall not constitute a part hereof or affect the construction or interpretation hereof.
Section 13.14. Severability. If any clause, provision, or section hereof is held illegal,
invalid, or unenforceable by any court, the illegality, invalidity, or unenforceability of such
clause, provision or section shall not affect any of the remaining clauses, provisions, or sections
hereof, and this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable clause, provision or section had not been contained herein.
Section 13.15. Waiver. No failure on the part of any party to exercise, and no delay in
exercising, and no course of dealing with respect to any right hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy provided at law or in equity,
except as expressly set forth herein.
Section 13.16.
Terminology.
All
personal
pronouns used herein, whether used in the
masculine, feminine, or
neuter gender,
shall
include
the singular.
Section 13.17. Third Party Beneficiary. No person other than MiLB, the County, the
Indemnified County Parties, the Indemnified MiLB Parties, and the permitted successors and
assigns of such, shall have any rights whatsoever under this Agreement.
Section 13.18 Radon Notice. Chapter 88-285, Laws of Florida, requires the following
notice to be provided with respect to the contract for sale and purchase of any building, or a
rental agreement for any building, and the parties hereto acknowledge and confirm receipt of the
following:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county health department."
Section 13.19 Estoppel Certificates. At any time, within twenty (20) days after request
by either party, the other party shall certify in writing to the requesting party, or any person
specified by the requesting party, to the effect (a) whether this Agreement is unmodified and in
full force and effect (or if there has been modification, that the same is in full force and effect as
modified and setting forth such modification); (b) whether or not to the best of the other party's
knowledge, the requesting party is in Default hereunder; and (c) any other information which the
requesting party reasonably requests to be confirmed.
Page 22 of 29
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
Section 14.01. Indemnification by MiLB. To the fullest extent permitted by law, MiLB
shall indemnify, protect, and hold the County and its officers, agents, and employees acting on
behalf of the County, and its respective successors and assigns (collectively, the "Indemnified
County Parties") harmless from and defend the Indemnified County Parties against any and all
"liabilities" (as hereinafter defined) for any "bodily injury" (as hereinafter defined) or "property
damage" (as hereinafter defined) whatsoever arising out of or resulting from any Default by
MiLB and/or occurring in, on, or about the Facility to the extent such injury or damage is caused
by MiLB, or MiLB's agents, contractors or employees, but not to the extent caused by the
negligence or willful misconduct of the Indemnified County Parties. In the case of any action or
proceeding being brought against the Indemnified County Parties by reason of any such claim,
MiLB, upon notice from the Indemnified County Parties, shall defend the same at MiLB's
expense by counsel reasonably satisfactory to the County.
Section 14.02. Indemnification by the County. To the fullest extent permitted by law
without waiving any sovereign immunity, the County shall indemnify, protect, and hold MiLB
and their officers, agents, and employees acting on behalf of MiLB, and each of their respective
successors and assigns (collectively, the "Indemnified MiLB Parties") harmless from and defend
the Indemnified MiLB Parties against any and all "liabilities" (as hereinafter defined) for any
"bodily injury" (as hereinafter defined) or "property damage" (as hereinafter defined) whatsoever
arising out of or resulting from any Default by the County and/or occurring in, on, or about the
Facility to the extent such injury or damage is caused by the County, or the County's agents,
contractors or employees, but not to the extent caused by the negligence or willful misconduct of
the Indemnified MiLB Parties. In the case of any action or proceeding being brought against the
Indemnified MiLB Parties by reason of any such claim, the County, upon notice from the
Indemnified MiLB Parties, shall defend the same at the County's expense by counsel reasonably
satisfactory to MiLB.
Section 14.03. Definitions. As used in this Agreement, "liabilities" shall mean all
liabilities, claims, damages (excluding consequential damages), losses, penalties, litigation,
demands, causes of action (whether in tort or contract, in law or equity or otherwise), suits,
proceedings, judgments, disbursements, charges, assessments, and expenses (including
reasonable attorneys' and experts' fees and expenses incurred in investigating, defending, or
prosecuting any litigation, claim or proceeding whether out of court, at trial or in any appellate or
administrative proceeding). "Bodily injury" means bodily injury, sickness or disease sustained by
a person, including death resulting from any of the foregoing. "Property damage" shall mean
physical injury to tangible property, including all resulting loss of use of that property, or loss of
use of tangible property that is not physically injured.
Section 14.04. Independent Provisions. The provisions of Sections 14.01 through 14.03
are independent of, and will not be limited by, any insurance obligations in this Agreement, and
Page 23 of 29
shall survive the expiration or earlier termination of this Agreement with respect to any claims or
liability arising in connection with any event occurring prior to such expiration or termination.
Section 14.05. Insurance. Commencing upon the Effective Date and throughout the
remainder of the Term and any renewals thereof, MiLB shall maintain, at their sole cost, the
following insurance:
(a) A commercial general liability insurance policy in an occurrence form
covering the insured against all bodily injury and property damage liability that may rise
or be claimed due to MiLB's use of the Facility in a minimum amount of coverage of One
Million Dollars ($1,000,000) for injuries to persons in one accident, One Million Dollars
($1,000,000) for injuries to any one person and One Million Dollars ($1,000,000) for
damages to property. The commercial general liability insurance policy in an occurrence
form shall also include contractual liability coverage including a Broad Form
Endorsement covering the insurance provisions of this Agreement and the performance
by MiLB of the indemnification provisions set forth in this Agreement.
(b) Special form (all risk) property insurance covering (t) the Facility,
including, but not limited to, any additional improvements undertaken by MiLB, in an
amount not less than one hundred (100%) percent of their actual replacement costs from
time to time existing during the Term of this Agreement, providing protection against any
peril included within the classification "all risks" of physical loss or damage, together
with insurance against sprinkler damage, vandalism, malicious mischief, and water
damage of any type and theft. The proceeds of such insurance shall be used for the repair
or replacement of the property so insured.
(c) All of the insurance policies required under Sections 14.05(a) and
14.05(b), above, shall be effected from insurance companies recognized by and licensed
in the State of Florida, and provide a Notice of Cancellation or material Coverage
Change provision of thirty (30) days' notice in favor of the County. MiLB shall provide
the County with a duly executed Certificate of Insurance for each such policy. MiLB
shall maintain the Certificate of Insurance on file with the County at all times during the
Term. The policies required under Sections 14.05(a) and 14.05(b), above, shall name the
County as an additional insured.
(d) If MiLB fails to furnish the Certificate(s) of Insurance as required above,
the County may, after notice and an opportunity to cure as set forth in this Agreement,
obtain the insurance, and the premiums on that insurance shall be deemed additional rent
to be paid by MiLB to the County on demand. MiLB shall be responsible for securing, at
their own expense, whatever insurance coverage they may desire on the contents of the
Facility. All Certificates of Insurance required by this Lease shall be provided on a
standard ISO form.
Page 24 of 29
(e) Any insurance required of MiLB under this Agreement may be furnished
by the County under a blanket policy so long as and provided such policy:
(1) complies with all other terms and conditions contained in this
Agreement; and
(2) contains an endorsement that identifies with specificity the
particular address of the Facility as being covered under the blanket policy.
ARTICLE XV
FORCE MAJEURE
Section 15.01. Force Majeure Event. Should any fire or other casualty, act of God,
earthquake, flood, hurricane, lightning, tomado, epidemic, landslide, war, riot, civil commotion,
general unavailability of materials, strike, slowdown, labor dispute, governmental laws or
regulations, or other occurrence beyond MiLB's or County's control ("Force Majeure Event")
prevent performance of this Agreement in accordance with its provisions, performance of this
Agreement by either party shall be suspended or excused to the extent commensurate with such
occurrence, except as specifically provided herein.
Section 15.02. Partial Destruction. In the event of a partial destruction of the Facility, if
MiLB determines, at their sole discretion, that the undamaged portion of the Facility is still
suitable for the purposes and operations described in Section 5.01 hereof, then this Agreement
shall continue in full force and effect with no adjustments in the obligations of the parties, and
MiLB shall restore the Facility as soon as possible from the insurance proceeds or MiLB's own
funds.
Section 15.03. Facility Not Suitable for Use. In the event of total or partial destruction or
damage of the Facility, if MiLB determines at its sole discretion that the Facility is not suitable
for their operations and/or cannot be used as a venue for the purposes described in Section 5.01
hereof, then upon written notice to the County this Agreement shall be suspended immediately
until the Facility is repaired. Within twelve (12) months of the event of such total or partial
destruction or damage, MiLB, with assistance of the County, but not at County expense, shall
begin to repair or rebuild the Facility using the proceeds from the property insurance for that
purpose and shall diligently pursue such repair or rebuilding until completed. Once MiLB
contracts with an Architect or an Engineer or Design Build firm to draw plans for the repair or
rebuilding of the Facility, MiLB shall be deemed to have begun the repair or rebuilding of the
Facility. This Agreement shall continue to be suspended until the Facility is reasonably suitable
for MiLB's operations or as a venue for the purposes described in Section 5.01.
Page 25 of 29
ARTICLE XVI
ADDITIONAL IMPROVEMENTS
Section 16.01. Improvements. The County hereby acknowledges that it will undertake to
promptly complete the Improvements. No improvements to the Facility in addition to the
Improvements are presently contemplated by this Agreement.
Section 16.02. Additional Improvements Nothing contained in this Agreement shall
restrict or prohibit MiLB from making improvements to the Facility which are not described as
"Improvements" hereunder; provided that MiLB shall notify the County of such additional
improvements before MiLB undertakes to make them, and the County provides prior written
consent to such improvements.
ARTICLE XVII
ZONING AND PERMITTING
Section 17.01. Zoning and Permitting. It shall be the sole obligation of MiLB, with
assistance from the County, but not at County expense, to obtain any permits and/or zoning
changes which may be required to construct any improvements which MiLB may hereafter desire
to make to the Facility. The County, acting solely in its capacity as the fee owner of the Land,
shall cooperate with MiLB as may be reasonably required, to enable MiLB to obtain any permits
and/or zoning changes for the Improvements and any additional improvements, including, but not
limited to, by joining in any applications for such permits and/or zoning changes.
ARTICLE XVIII
CONSENTS AND APPROVALS
Section 18.01. Granting or Failure to Grant Approvals or Consents All consents and
approvals which may be given by a party under this Agreement shall, as a condition of their
effectiveness, be in writing. The granting by a party of any consent to or approval of any act
requiring consent or approval under the terms of this Agreement, or the failure on the part of a
party to object to any such action taken without the required consent or approval, shall not be
deemed a waiver by the party whose consent was required of its right to require such consent or
approval for any other act.
Section 18.02. Standard. Unless this Agreement specifically provides for the granting of
consent or approval at a party's sole discretion, then consents and approvals which may be given
by a party under this Agreement shall not (whether or not so indicated elsewhere in this
Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied
Page 26 of 29
within the time period provided, and if no such time period has been provided, within a
reasonable time. Upon disapproval of any request for a consent or approval, the disapproving
party shall, together with notice of such disapproval, submit to the requesting party a written
statement setting forth with specificity its reasons for such disapproval.
Section 18.03. Deemed Approval.
(a) If a party entitled to grant or deny its consent or approval (the "Consenting
Party") within thirty (30) days (or a shorter specified time period) fails to do so, then,
provided that the request for consent or approval bears the legend set forth below in
capital letters and in a type size which is not less than that provided below, the matter for
which such consent or approval is requested shall be deemed consented to or approved, as
the case may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME
PERIOD PROVIDED IN THE FACILITY LEASE AGREEMENT
BETWEEN INDIAN RIVER COUNTY AND MiLB SHALL
CONSTITUTE AUTOMATIC APPROVAL OF THE MATTERS
DESCRIBED HEREIN WITH RESPECT TO SECTION OF
SUCH FACILITY LEASE AGREEMENT."
Section 18.04. _Approvals for the County The County hereby agrees that, subject to
applicable laws and regulations, the County Administrator (or the County Administrator's
authorized designee) shall be authorized to grant consents or approvals on behalf of the County,
with respect to this Agreement.
Section 18.05. No Fees, etc. Except as otherwise expressly authorized in this
Agreement, no fees or charges of any kind or amount shall be required by either party hereto as a
condition of the grant of any consent or approval which may be required under this Agreement
(provided that the foregoing shall not be deemed in any way to limit the County acting in its
governmental, as distinct from its proprietary, capacity from charging governmental fees on a
nondiscriminatory basis).
Page 27 of 29
IN WITNESS THEREOF, the undersigned have executed this Agreement as. of the day
and year first above written.
[Seal] INDIAN RIVER GOU 1TY, FLOJ-JDA,
AS LESSOR
Date: 00e_'�--�
Its: Chair
Attest: ; J.K. G F l
CLERK c rc;; i ;;;v jr-
Clerk of the Circuit Court
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
By:
Special County Attorney
STATE OF FLORIDA )
)ss:
COUNTY OF INDIAN RIVER )
The foregoing instrument was acknowledged before me this 19th day of
May 2009, by Wesley S. Davis , as Chair of Indian River
County, Florida, a political subdivision of the State of Florida, on behalf of such political
subdivision. She is personally known to me or produced a valid drivers license as identification.
ra
lJ V I U-11 * 4M i l
Notary Pubtic
Print Name: Misty L. Horton
My commission expires: Decerrber 29, 2009
IN WITNESS THEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
MiLB VERO BEACH LLC, a Florida
limited liability company
By its Managing Member:
NATIONAL ASSOCIATION OF
PROFESSIONAL BASEBALL LEAGUES,
INC. i
[Seal]
By:
Pat
President and CEO
Attest: 1�//y,
• / G�
Secretary
STATE OF HDVIdg ]
COUNTY OF
PiAtlIC S )ss:
The foregoing instrument was acknowledged before me this ,00 day of
MAV 2009, by Pat O'Conner, President and CEO of National Association of
Professio nalBa Baseball Leagues, Inc, as Managing Member of MiLB Vero Beach LLC, a Florida
limited liability company, on behalf of such entity. He is personally known to me or produced a
valid driver's license as identification.
jFW1Wda �Y Public - Sale Of My COmm. EaPlrn Aug 1COMMInfoO.00 87.
?oary ublic
Print Name: srkrd r& A. [kb&+
My commission expires: $-1-201 3
EXHIBITS:
Exhibit A and Exhibit B Legal Descriptions of Land.
Exhibit C Description of FF&E.
Pa'c :i9 of 29
EXHIBIT A
PARCEL 1-C
A PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 33 SOUTH, RANGE 39 EAST,
INDIAN RIVER COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SECTION 3, TOWNSHIP 33 SOUTH,
RANGE 39 EAST, PROCEED NORTH 89045139" WEST, A DISTANCE OF 1997.62 FEET
TO A POINT; THENCE SOUTH 04°15'11" WEST, A DISTANCE OF 30.07 FEET TO A
POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF AIRPORT DRIVE (A/K/A 34th
AVENUE, A 90 FOOT RIGHT-OF-WAY) SAID POINT BEING THE POINT OF
BEGINNING; THENCE CONTINUE ALONG SAID WESTERLY RIGHT-OF-WAY LINE
SOUTH 10036'49" WEST, A DISTANCE OF 37.55 FEET TO THE POINT OF CURVATURE
OF A TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 1125.14
FEET AND A CENTRAL ANGLE OF 09030'08"; THENCE SOUTH ALONG SAID CURVE,
A DISTANCE OF 186.60 FEET; THENCE SOUTH 20°06'57" WEST, A DISTANCE OF 82.11
FEET TO THE POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE
EAST, HAVING A RADIUS OF 1825.86 FEET AND A CENTRAL ANGLE OF 19054'2511;
THENCE SOUTH ALONG SAID CURVE, A DISTANCE OF 634.38 FEET; THENCE
SOUTH 00012'32" WEST, A DISTANCE OF 55.06 FEET TO A POINT ON THE NORTH
RIGHT-OF-WAY LINE OF INDIAN RIVER FARMS DRAINAGE DISTRICT MAIN CANAL
(300 FOOT RIGHT-OF-WAY); THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY
LINE SOUTH 69022'53" WEST, A DISTANCE OF 482.50 FEET; THENCE NORTH 15°50'35"
WEST, A DISTANCE OF 50.17 FEET TO A POINT 50.00 FEET NORTH OF AFORESAID
MAIN CANAL NORTH RIGHT-OF-WAY LINE; THENCE SOUTH 69°22'53" WEST
ALONG SAID LINE PARALLEL AND 50.00 FEET NORTH OF SAID MAIN CANAL
NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 1001.21 FEET; THENCE NORTH
18015'26" WEST, A DISTANCE OF 386.46 FEET; THENCE NORTH 63°53'04" WEST, A
DISTANCE OF 476.06 FEET; THENCE NORTH 89°45'39" WEST, A DISTANCE OF 414.56
FEET; THENCE NORTH 00°14'21" EAST, A DISTANCE OF 876.82 FEET TO A POINT
30.00 FEET SOUTHERLY OF THE NORTH LINE OF SECTION 3, TOWNSHIP 33 SOUTH,
RANGE 39 EAST; THENCE SOUTH 89°45'39" EAST ALONG A LINE BEING 30.00 FEET
SOUTHERLY OF AND PARALLEL WITH SAID SECTION LINE, A DISTANCE OF 2557.93
FEET TO THE POINT OF BEGINNING.
A-1
EXHIBIT B
LEGAL DESCRIPTION OF PARKING FACILITY
(ALSO KNOWN AS A PORTION OF DODGERTOWN PARCEL 2)
A PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 33 SOUTH, RANGE 39 EAST,
INDIAN RIVER COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF SAID SECTION 3; THENCE SOUTH 67
DEGREES 59 MINUTES 23 SECONDS EAST, A DISTANCE OF 80.89 FEET TO A POINT
ON THE SOUTH RIGHT OF WAY LINE OF INDIAN RIVER FARMS WATER CONTROL
DISTRICT CANAL A3; THENCE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST,
ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE. OF 288.78 FEET, TO THE
POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND; THENCE
CONTINUE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST, ALONG SAID LINE,
A DISTANCE OF 392.00 FEET; THENCE SOUTH 0 DEGREES 14 MINUTES 21 SECONDS
WEST, A DISTANCE OF 876.82 FEET; THENCE SOUTH 89 DEGREES 45 MINUTES 39
SECONDS EAST, A DISTANCE OF 414.56 FEET; THENCE SOUTH 63 DEGREES 53
MINUTES 04 SECONDS EAST, A DISTANCE OF 149.35 FEET; THENCE NORTH 89
DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF 905.94 FEET; THENCE
NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A DISTANCE OF 85.00 FEET;
THENCE NORTH 89 DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF
35.00 FEET; THENCE NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A
DISTANCE OF 857.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINING 9.1297 ACRES, MORE OR LESS.
B-1
EXHIBIT C
LIST OF FUE
C-1
DODGERTOWN FURNITURE, FIXTURES AND EQUIPMENT
(To be modified from time to time to reflect replacement equipment)
CONFERENCE CENTER
Administrative Offices
Front Desk/Reg. Desk
Audio Visual
Description
Quanititv
Desk
g
Desk - built in
1
Chair - desk
g
Chair - office
11
Credenza
3
File Cabinet -2 drawer
5
File Cabinet - 3 drawer
3
File Cabinet -4 drawer
7
Storage Cabinet
2
Bookcase
7
Typewriter
1
Step Stool
1
Small End Table
1
Artificial Plant - small
2
Artifical Plant - tree
1
Combination Safe
1
TV -Zenith 13"
1
Paper shredder large
1
Stereo - receiver
1
Microwave - Sharp
1
Refrigerator -W jr1poo(
1
Sub -total
Chairs - louncie
4
Coffee table
1
Side table
2
Lamp
1
Bakers rack
1
Fax machine
1
File cabinet - 4 drawer
1
Bulletin board
1
Desks
2
TV - S lvania13"
1
Key cabinet
1
Sub -total
NEC LCD Projector
1
Epson LCD Projector
1
Metal TV carts
8
Podiums
2
TV - 27"
7
PA Speakers
2
Overhead projectors
a
VCR
10
PA Amps
3
Wireless Mic
2
Black TV stand
7
, I I
2
COMPUTER EQUIPMENT Monitors 20
Printers 1 o
Fax machines 6
Sub -total
CONCESSIONS
VERO BEACH DODGERS
Dry erase board -four month_
1
Sub -total
TOTAL
*Existing Liquor Inventory will be turned over to MiLB
::
FORM OF CAPITAL RESERVE ACCOUNT AGREEMENT
CAPITAL RESERVE ACCOUNT AGREEMENT
This Capital Reserve Account Agreement is made and entered into as of May 1, 2009, by
and among Clerk of the Circuit Court for Indian River County, Florida (the "Capital Reserve
Account Agent"), Mi1B Vero Beach LLC, a Florida limited liability company (the "MiLB"), and
Indian River County, Florida, a political subdivision of the State of Florida (the "County").
WHEREAS, the County is the owner of those certain parcels of real property more
particularly described on Exhibit "A" and Exhibit "B" attached hereto and incorporated herein by
reference (the "Land"), on which Land is located a professional baseball spring training facility
commonly known as "Dodgertown"), which is comprised of Holman Stadium, an eighty-nine
(89) unit hotel facility, a conference center with meeting and dining rooms, a clubhouse and
weight room, in -door batting and pitching cages, baseball administration building, four (4) full
baseball practice fields, and two (2) half baseball practice fields (collectively, the "Existing
Facilities"), and
WHEREAS, the County has leased the Land and the Existing Facilities to MiLB for an
initial term of five (5) years, with available renewals, pursuant to that certain Facility Lease
Agreement dated as of May 1, 2009 (the "Lease"); and
WHEREAS, the County has agreed to undertake certain capital improvements to the
Existing Facilities and the Land (collectively, the "Improvements"), as contemplated by the
Lease; and
WHEREAS, as part of the consideration to be paid by MiLB to the County under the
Lease, MiLB has undertaken the obligation to maintain (within the standards set forth in the
Lease) the Existing Facilities, the Improvements and any additional improvements on or to the
Land voluntarily undertaken by MiLB (collectively, the "Facility) at the sole costs of MiLB; and
WHEREAS, the County desires to protect its investment in the County's property
consisting of the Land and the Facility and to help insure that the Land and the Facility will be
maintained as anticipated by the Lease; and
WHEREAS, in order to so protect the County's property, the County has agreed to fund
the Capital Reserve Account herein created to assist MiLB in maintaining the Land and the
Facility.
NOW, THEREFORE, in consideration of the premises and recitals set forth above, which
premises and recitals are hereby incorporated herein as if fully set forth herein, and other good
and valuable consideration, the receipt of which is hereby acknowledged, the County, MiLB and
the Capital Reserve Account Agent agree as follows:
1.
Funds.
In
conjunction with the execution
of the
Lease, the County shall transfer
or cause
to be transferred
to the Capital Reserve Account
Agent
the amount of $2,000,000.00 to
1
be held in escrow and deposited in a separate escrow account maintained in the State of Florida
(the "Capital Reserve Account'), invested and disbursed as provided herein.
2. Investment. Funds in the Capital Reserve Account shall be invested at the
direction of the County in such investments which are legal investments for County funds which
are set forth in Exhibit "C" attached hereto and made a part hereof, as same may be amended by
the County from time to time. Interest earnings on such funds shall be deposited to the Capital
Reserve Account and disbursed as provided in Section 3 hereof.
3. Disbursement. Funds on deposit in the Capital Reserve Account shall be disbursed
by the Capital Reserve Account Agent solely upon fulfillment of the following conditions:
(a) Subject to there not having occurred an event as set forth in paragraph (b) of this
Section 3, upon submission of a Requisition Request in the form attached hereto as Exhibit "D",
the Capital Reserve Account Agent is authorized and directed to pay to the payee designated in
such Requisition Request the amount designated for such payment from amounts on deposit in
the Capital Reserve Account, including any investment earnings thereon.
(b) Upon telephonic notice from the County, to be promptly confirmed in writing,
that a default by MiLB has occurred under the Lease and the County has terminated the Lease, or
that the Lease has otherwise terminated, moneys on deposit in the Capital Reserve Account
thereupon, including any investment earnings thereon, shall be held by the Capital Reserve
Account Agent for the exclusive benefit of the County and disbursed to the County in accordance
with written instructions from the County Administrator or his designee.
4. Authorized Uses of Funds in the Capital Reserve Account. The funds held in the
Capital Reserve Account may be used solely for the limited purposes set forth herein. Any
Requisition submitted by MiLB to the County for approval shall constitute an affirmative
statement by MiLB that all items for which payment is requested under the Requisition is for a
use permitted by this Section 4. The County agrees to approve such Requisitions submitted by
MiLB upon delivery of the back-up material required to be submitted with all Requisitions for
costs of a component of any approved improvements.
Permitted uses by MiLB shall consist of costs related to a capital repair or replacement of
any component of the Facility or Land, or new improvements thereto or thereon approved by the
County. The costs of all components of the Improvements agreed by the County not be paid
from funds on deposit in the Capital Reserve Account shall be paid with separate funds provided
by the County.
To the extent MiLB elects to obtain reimbursement for the costs of any capital repair or
replacement from the Capital Reserve Account rather than with funds provided by MiLB, the
County agrees to approve such Requisition so long as (i) the payee thereunder is a third party
provider of goods or service, and (ii) the repair or replacement is in excess of $1,000 and
constitutes a capital expenditure, and the County shall consider approval of any other Requisition
9
for the cost of a capital repair or replacement, each upon delivery of the back-up material
required to be submitted with all Requisitions for costs of a repair or replacement.
5. Assignment. The parties hereto acknowledge that no party may assign its rights
hereunder without the prior written consent of the other parties hereto, and that, upon such
assignment, the assigning party's assignee will succeed to all of the assigning party's rights under
this Capital Reserve Account Agreement.
6. Fees of Capital Reserve Account Agent. In consideration of its services as Capital
Reserve Account Agent hereunder, the Capital Reserve Account Agent shall be entitled to fees
and expenses agreed upon by the Capital Reserve Account Agent, the County and MiLB and the
fees of the Capital Reserve Account Agent will be paid in advance from funds on deposit in the
Capital Reserve Account in accordance with any agreed upon fee schedule. Absent an agreed
upon fee schedule, the parties hereby agree to pay and reimburse the initial Capital Reserve
Account Agent for direct, actual and verifiable costs associated with the limited services and
effort anticipated to be required hereunder. If for any reason funds in the Capital Reserve
Account are insufficient to cover such compensation and reimbursement, MiLB shall promptly
pay such amounts to the Capital Reserve Account Agent upon receipt of an itemized invoice.
7. IntMleader. In case any dispute shall arise between or among the County and
MiLB as to the disposition of funds deposited under this Capital Reserve Account Agreement,
the Capital Reserve Account Agent shall have the right, but shall not be obligated, to bring an
action in a state court of competent jurisdiction located in Indian River County, Florida, to
interplead the parties hereto and any other persons to resolve such dispute. Any costs or expenses
incurred in connection with any such action, including but not limited to any expenses and
reasonable attorney fees incurred by the Capital Reserve Account Agent, shall be paid by the
unsuccessful party in the dispute.
S. Miscellaneous.
(a) This Capital Reserve Account Agreement shall be construed in accordance with,
and governed by the laws of, the State of Florida.
(b) The Capital Reserve Account Agent, as a part of the consideration for the
acceptance of this Capital Reserve Account Agreement, shall not be liable for any acts or
omissions done in good faith, nor for any claims, demands or losses, nor for any damages made
or suffered by any party to this Capital Reserve Account Agreement, excepting such as may arise
through or be caused by its willful misconduct or gross negligence. Any obligations of the
County and/or MiLB under this Capital Reserve Account Agreement to the Capital Reserve
Account Agent shall survive any termination of this Capital Reserve Account Agreement and the
resignation or removal of Capital Reserve Account Agent.
(c) In the event any provision of this Capital Reserve Account Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provisions hereof.
3
(d) This Capital Reserve Account Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns.
(e) This Capital Reserve Account Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one and the
same instrument (a party may execute a copy of this Agreement and deliver it by facsimile
transmission; provided however, that any such party shall promptly deliver an original signed
copy of this Agreement).
(f) All notices to be given under this Capital Reserve Account Agreement shall be
made in writing and shall be deemed delivered when delivered by hand or by overnight courier
delivery service, to the other party at its address set forth opposite its signature below or at such
address as the party may provide in writing from time to time.
9. The Capital Reserve Account Agent may resign and be discharged of its duties
hereunder by executing an instrument in writing specifying the date when such resignation shall
take effect, and filing the same with the County and MiLB not less than thirty (30) days before
the date when such resignation shall take effect; provided, that such resignation shall not be
effective unless a new capital reserve account agent shall have accepted appointment hereunder.
10. The Capital Reserve Account Agent may be removed by agreement of the County
and MiLB at any time by an instrument in writing, filed with the Capital Reserve Account Agent
not less than thirty (30) days before the date when such removal shall take effect. No removal of
the Capital Reserve Account Agent shall be effective until a successor has been appointed and
agreed to serve hereunder.
H. Following the resignation or removal of the Capital Reserve Account Agent, a
successor escrow agent, acceptable to MiLB, shall be appointed by the County. Any such
successor escrow agent shall be a national banking association or other banking institution with
trust powers qualified to act as the capital reserve account agent hereunder under the laws of the
State of Florida and shall affirmatively agree to hold the Capital Reserve Account in accordance
with the terms hereof.
12. This Capital Reserve Account Agreement shall terminate upon disbursement of
all funds in the Capital Reserve Account in accordance with Section 3 hereof.
13. Capital Reserve Account Agent shall not be required to recognize any other
agreement between the other parties hereto even though reference thereto may be made herein or
copies or provisions thereof may be annexed as exhibits hereto and whether or not it may have
knowledge thereof; it being the intent of the parties hereto that Capital Reserve Account Agent's
duties and responsibilities are only those as are expressly set forth herein. Capital Reserve
Account Agent shall have no responsibility whatsoever with respect to the undertakings of any
other party hereto or to any notices or undertakings of anyone not a party hereto. The Capital
Reserve Account Agent shall have no liability or obligation with respect to the funds in the
4
Capital Reserve Account except for the Capital Reserve Account Agent's willful misconduct or
gross negligence. The Capital Reserve Account Agent's sole responsibility shall be for the
safekeeping, investment, and disbursement of the funds in the Capital Reserve Account in
accordance with the terms of this Capital Reserve Account Agreement.
5
IN WITNESS WHEREOF, the parties hereto have executed this Capital Reserve Account
Agreement as of the date first written below.
Notice Address:
Indian River County
1801 27" Street
Vero Beach, Florida 32960-3388
Attention: County Administrator
Phone: (772) 226-1408
Fax: (772)978-1822
Attest: JX. BARTON
CLERK CIi;CUIT COURT
By:
'I-rk cf tl-r Circuit Court
Approved as to Form and
Legal Suf&cie
By:
.40
Special County Attorney
INDIAN RIVER.COUNTY,
FLORIDA
Name:
Title: Chair
Notice Address:
Pat O'Conner, President & CEO
Minor League Baseball
National Association of Professional Baseball Leagues, Inc.
201 Bayshore Dr. SE/ P.O. Box A
St. Petersburg, Florida 33701/ 33731
Phone: (772)456-1705
Fax: (727) 821-5819 MiLB VERO BEACH LLC, a Florida
limited liability company
By its Managing Member:
NATIONAL ASSOCIATION OF
PROFE[SIONAL BASEBALL LEAGUES,
INC.
By:INAV
Pat O'C nner, President and
T
ACCEPTED AND AGREED TO AS CAPITAL RESERVE ACCOUNT AGENT:
Notice Address:
Clerk of the Circuit Court
Indian River County
P.O. Box 1028
Vero Beach, Florida 3 2960-1 02 8
Phone: (772) 770.5185
Fax: (772) 770.5008
7
CLERK OF THE CIRCUIT COURT
By: \�o�
Jeff& -K- arton, Clerk of the Circuit Court,
Indian River County, Florida ;
EXHIBIT A
PARCEL 1-C
A PARCEL OF LAND LYING N SECTION 3, TOWNSHIP 33 SOUTH, RANGE 39 EAST,
NDIAN RIVER COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SECTION 3, TOWNSHIP 33 SOUTH,
RANGE 39 EAST, PROCEED NORTH 89045'39" WEST, A DISTANCE OF 1997.62 FEET
TO A PONT; THENCE SOUTH 04'15'11" WEST, A DISTANCE OF 30.07 FEET TO A
POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF AIRPORT DRIVE (A/K/A 34th
AVENUE, A 90 FOOT RIGHT-OF-WAY) SAID POINT BEING THE PONT OF
BEGINNING; THENCE CONTINUE ALONG SAID WESTERLY RIGHT-OF-WAY LINE
SOUTH 10036'49" WEST, A DISTANCE OF 37.55 FEET TO THE PONT OF CURVATURE
OF A TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 1125.14
FEET AND A CENTRAL ANGLE OF 09030'08"; THENCE SOUTH ALONG SAID CURVE,
A DISTANCE OF 186.60 FEET; THENCE SOUTH 20°06'57" WEST, A DISTANCE OF 82.11
FEET TO THE PONT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE
EAST, HAVING A RADIUS OF 1825.86 FEET AND A CENTRAL ANGLE OF 19054'25":
THENCE SOUTH ALONG SAID CURVE, A DISTANCE OF 634.38 FEET; THENCE
SOUTH 00012'32" WEST, A DISTANCE OF 55.06 FEET TO A PONT ON THE NORTH
RIGHT-OF-WAY LINE OF INDIAN RIVER FARMS DRAINAGE DISTRICT MAIN CANAL
(300 FOOT RIGHT-OF-WAY); THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY
LINE SOUTH 69022'53" WEST, A DISTANCE OF 482.50 FEET; THENCE NORTH 15°50'35"
WEST, A DISTANCE OF 50.17 FEET TO A PONT 50.00 FEET NORTH OF AFORESAID
PIAN CANAL NORTH RIGHT-OF-WAY LINE; THENCE SOUTH 69022'53" WEST
ALONG SAID LINE PARALLEL AND 50.00 FEET NORTH OF SAID MAIN CANAL
NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 1001.21 FEET; THENCE NORTH
18015'26" WEST, A DISTANCE OF 386.46 FEET; THENCE NORTH 63053'04" WEST, A
DISTANCE OF 476.06 FEET; THENCE NORTH 8904539" WEST, A DISTANCE OF 414.56
FEET; THENCE NORTH 00°14'21" EAST, A DISTANCE OF 876.82 FEET TO A PONT
30.00 FEET SOUTHERLY OF THE NORTH LINE OF SECTION 3, TOWNSHIP 33 SOUTH,
RANGE 39 EAST; THENCE SOUTH 89045'39" EAST ALONG A LINE BENG 30.00 FEET
SOUTHERLY OF AND PARALLEL WITH SAID SECTION LINE, A DISTANCE OF 2557.93
FEET TO THE POINT OF BEGINNING.
A-1
EXHIBIT B
LEGAL DESCRIPTION OF PARKING FACILITY
(ALSO KNOWN AS A PORTION OF DODGERTOWN PARCEL 2)
A PARCEL OF LAND LYING N SECTION 3, TOWNSHIP 33 SOUTH. RANGE 39 EAST,
NDIAN RIVER COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF SAID SECTION 3; THENCE SOUTH 67
DEGREES 59 MINUTES 23 SECONDS EAST, A DISTANCE OF 80.89 FEET TO A POINT
ON THE SOUTH RIGHT OF WAY LINE OF INDIAN RIVER FAR -NIS WATER CONTROL
DISTRICT CANAL A3; THENCE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST,
ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE. OF 288.78 FEET, TO THE
POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND; THENCE
CONTINUE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST, ALONG SAID LINE,
A DISTANCE OF 392.00 FEET; THENCE SOUTH 0 DEGREES 14 MINUTES 21 SECONDS
WEST, A DISTANCE OF 876.82 FEET; THENCE SOUTH 89 DEGREES 45 MINUTES 39
SECONDS EAST, A DISTANCE OF 414.56 FEET; THENCE SOUTH 63 DEGREES 53
MINUTES 04 SECONDS EAST, A DISTANCE OF 149.35 FEET; THENCE NORTH 89
DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF 905.94 FEET; THENCE
NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A DISTANCE OF 85.00 FEET;
THENCE NORTH 89 DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF
35.00 FEET; THENCE NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A
DISTANCE OF 857.00 FEET TO THE PONT OF BEGINNING.
SAID PARCEL CONTAINING 9.1297 ACRES, MORE OR LESS.
B-1
EXHIBIT C
Legal Investments for County Funds
Legal investments for County funds shall be subject to restrictions as may be imposed by law
(Section 2 18.415 of Florida State Statutes). Funds will only be invested in the following
securities:
Direct obligations of the United States Treasury;
2. State of Florida Local Government Surplus Funds Trust Fund (SBA);
3. Florida Local Government Investment Trust Fund (FLGJT);
4. Interest-bearing time deposits or savings accounts in qualified public depositories
as defined in Section 280.02, Florida Statutes;
5. Federal agencies and instrumentalities;
6. Securities of, or other interests in, any open-end or closed-end management -type
investment company or investment trust registered under the Investment Company
Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended from time to time, provided
that the portfolio of such investment company or investment trust is limited to
obligations of the United States Government or any agency or instrumentality
thereof and to repurchase agreements fully collateralized by such United States
Government obligations, and provided that such investment company or
investment trust takes delivery of such collateral either directly or through an
authorized custodian;
7. Securities and Exchange Commission registered money market funds with the
highest credit quality rating from a nationally recognized rating agency; or
8. Repurchase agreements with a term of one year or less collateralized by direct
obligations of the United States Government which have maturities of three (3)
years or less and a market value 103% of the repurchase amount.
C-1
EXHIBIT D
FORM OF REQUISITION REQUEST
FOR CAPITAL REPAIR OR REPLACEMENT COSTS
REQUISITION REQUEST NO.
DATE:
TOTAL DISBURSEMENT REQUESTED; S
REFERENCE: Facility Lease Agreement dated as of May, 2009 (the "Lease") between
MiLB Vero Beach LLC, as lessee (the "MiLB"), and Indian River County,
Florida, as lessor (the "County")
as the Capital Reserve Account Agent (the "Capital Reserve
Account Agent") is hereby requested to disburse from the Capital Reserve Account established
under that certain Capital Reserve Account Agreement dated as of May _, 2009, by and among
the Capital Reserve Account Agent, MiLB, and the County, to the person, firm or corporation
designated below as Payee, the sum set forth below such designation, in payment of the cost of
the items of repair or replacement pursuant to the Lease.
The undersigned, on behalf of MiLB, hereby directs and instructs the Capital Reserve Account
Agent to pay the amounts in accordance with the invoices attached hereto as Exhibit A, and
certifies in connection with such direction that:
(a) The repairs or replacements described on Exhibit "A" hereto represent repairs or
replacements which have been constructed or installed at the Facility and the construction or
installation of such repairs and replacements has been completed on or before the date hereof,
(b) The MiLB have conducted such inspection and/or testing of the repairs or replacements
as they deem necessary and appropriate and have accepted such repairs or replacements; and
(c) The repairs and replacements described on Exhibit "A" hereto are covered against all
risks pursuant to the policy of insurance required by the Lease.
In the event that MiLB are to be reimbursed for invoices previously paid by MiLB for such items,
written evidence of such prior payment and the amount thereof is also attached to this
Requisition Request.
Attached hereto are the following (check each item attached), each of which is true and correct in
all respects:
D-1
(--) A true copy of the applicable purchase order for the repair or replacement;
(_j Bills of sale for any component of the repair or replacement for which a bill of
sale may be delivered; andior
(___) A true copy of the Payee's statement or invoice.
4. Please disburse the following amount to the following Payee (if more than one Payee,
please attach additional pages hereto setting forth the following information):
Payee:
Amount:-
Address:-
Invoice
mount:Address:Invoice No.:
5. To induce the County to approve this Requisition and authorize the Capital Reserve
Account Agent to disburse funds held in the Capital Reserve Account, the undersigned certifies
that there are no outstanding construction liens against the Facility.
6. The following constitutes an itemized list of attachments to this certificate (if applicable):
(a) Contractor's Application for Payment (AIA Forms G702 and 0703).
(b) Architect's Certificate (AIA Forms G702 and G703).
[Remainder of page intentionally left blank.]
D-2
EXECUTED this day of
Approved for payment:
INDIAN RIVER COUNTY, FLORIDA
By:
County Administrator (or designee)
00
D-3
MiLB VERO BEACH LLC, a Florida
limited liability company
By its Managing Member:
NATIONAL ASSOCIATION OF
PROFESSIONAL BASEBALL LEAGUES,
INC.
By:
Pat O'Conner, President and CEO
EXHIBIT C
FORM OF GUARANTY AGREEMENT
te►f>.v�rrr•�
IN ORDER TO INDUCE Indian River County, Florida, a political subdivision of the
State of Florida (hereinafter referred to as the "County"), to consummate the lease of certain land
and assets to MiLB Vero Beach LLC a Florida limited liability company ("MiLB"), pursuant to
the terms and conditions of that certain Facility Lease Agreement between the County and to
MiLB to be executed on even date (the "Facility Lease Agreement") and in consideration
thereof, the National Association of Professional Baseball Leagues, Inc., a Florida corporation
(hereinafter "Guarantor"), hereby guarantees, promises and undertakes as follows:
1. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to County, as and when payment and/or performance is due, the full and timely
payment of all sums payable by MiLB to County pursuant to the following provisions of the
Facility Lease Agreement:
(i) Any amounts due the County pursuant to Section 10.05 of the
Facility Lease Agreement;
Any amounts necessary to release or pay and remove any lien
or cloud attaching to the County's interest in title to the Land,
the Facility, the FF&E, or any other real or personal property
purchased or paid for with funds provided by the County, as
required by Section 4.06(c) of the Facility Lease Agreement.
The obligations of MiLB under the foregoing document and provisions are referred to herein
as the "Obligations." In addition to the foregoing, Guarantor agrees to pay all costs and
expenses incurred by County in any action to enforce, collect, interpret, or realize upon this
Guaranty, including reasonable attorneys' fees, costs and disbursement, as further provided in
Paragraph 15 hereof.
2. This Guaranty (hereinafter referred to as "this Guaranty") is a
continuing guaranty and Guarantor's obligations shall be absolute, unconditional and irrevocable
and is a guaranty of payment and performance (and not a guaranty of collection), without regard to
the enforceability of any of the Obligations. Guarantor hereby expressly waives any right to
revoke this Guaranty. No release of Guarantor from any of Guarantor's obligations under this
Guaranty, and no waiver by County of any of its rights hereunder, shall be effective for any
purpose whatever unless in a writing executed by County, except as permitted by law.
3. Guarantor agrees that Guarantor is directly and primarily liable to County,
that the obligations hereunder are independent of the obligations of County, and that a separate
action or actions may be brought and prosecuted against Guarantor, either severally or jointly,
whether or not action is brought against MiLB, and whether or not MiLB is joined in any such
action or actions. Guarantor agrees that any releases that may be given by County to MiLB or
any other Guarantor or endorser shall not release Guarantor from this Guaranty.
4. Any and all obligations, costs and expenses payable to County under the
Guaranty shall be payable immediately by Guarantor upon demand by County on the Guaranty,
without the requirement of waiting for the outcome of any litigation, claim or other proceeding,
and Guarantor shall pay to County, within ten (10) days following written notice, any and all costs
and expenses incurred from time to time after any such demand by County, including, without
limitation, any costs and expenses described in Paragraph 15 hereof.
5. Guarantor hereby authorizes County, without notice or demand and without
affecting Guarantor's liability hereunder, from time to time to: (a) renew, compromise, extend,
accelerate or otherwise change the time for payment or the terms of any of the Obligations, or
any part thereof (b) take and hold security for the payment of the Obligations guaranteed hereby,
and exchange, enforce, waive, and release any such security; (c) apply such security and direct
the order or manner of sale thereof as County in its discretion may determine; (d) release or
substitute any one or more endorser(s) or Guarantor(s); and (e) assign, without notice, this
Guaranty in whole or in part and/or County's rights hereunder to anyone at any time. Guarantor
hereby agrees that County may do any or all of the foregoing in such manner, upon such
terns, and at such times as County, in its discretion, deems advisable, without in any way or respect
impairing, affecting, reducing or releasing Guarantor from Guarantor's undertakings hereunder and
Guarantor hereby consents to each and all of the foregoing acts, events and/or occurrences.
6. Guarantor waives the right to require County to proceed against MiLB, to
proceed against or exhaust any security held by County, or to pursue any other remedy in the
County's power. County shall have the right to exercise any right or remedy it may have against
MiLB or any security held by County. Guarantor waives the right, if any, to the benefit of, or
to direct the application of, any security held by County. Guarantor waives (a) any defense
arising out of any alteration of the Obligations, (b) any defense arising out of the absence,
impairment or loss of any right of reimbursement or subrogation or other right or remedy of
Guarantor against MiLB or any security held by County, and (c) any defense arising by reason
of any disability or other defense of MiLB or by reason of the cessation or reduction from any
cause whatsoever of the liability of MiLB other than full payment, performance and discharge of
the Obligations. The cessation of reduction of the liability of MiLB for any reason other than
full payment, performance and discharge of the Obligations shall not release or affect in any
way the liability of Guarantor under this Guaranty.
7. Guarantor hereby waives all defenses, counterclaims and offsets of any
kind or nature, arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity and/or enforceability of the Facility Lease Agreement, the Parking Lease or
Capital Reserve Account Agreement (as such terms are defined in the Facility Lease Agreement).
8. Guarantor hereby waives the benefit of any statute of limitations affecting
the Obligations or Guarantor's liabilities hereunder or the enforcement thereof, and any act
which extends said statute with respect to the Obligations shall similarly extend any statute of
limitations applicable hereunder.
9. Any and all present and future debts and obligations of MiLB to
Guarantor are hereby subordinated to the full payment and performance of all present and future
Obligations. If requested by County, Guarantor shall collect, enforce and receive all such
indebtedness of MiLB to Guarantor as trustee for County, and Guarantor shall pay such
indebtedness to County on account of the indebtedness of MiLB to County, but without
otherwise reducing or affecting in any manner the liability of Guarantor under this Guaranty.
2
10. Guarantor assumes the responsibility for being and keeping Guarantor
informed of the financial condition of MiLB and of all other circumstances bearing upon the risk
of failure to pay, perform or discharge any of the Obligations which diligent inquiry would
reveal, and Guarantor agrees that County has no duty to advise Guarantor of information known to
County regarding such condition or any such circumstance. Guarantor acknowledges that
repeated and successive demands may be made and payments or performance made hereunder in
response to such demands as and when, from time to time, MiLB defaults in the payment,
performance or discharge of the Obligations. Notwithstanding any such payments and
performance hereunder, this Guaranty shall remain in full force and effect and shall apply to any
and all subsequent defaults by MiLB. It is not necessary for County to inquire into the
capacity, authority or powers of MiLB or the members, partners, directors, officers, employees
or agents acting or purporting to act on behalf of MiLB, and all of the Obligations made or
created in reliance upon the purported exercise of such powers shall be guaranteed hereunder.
11. This Guaranty shall continue in full force and effect until the Obligations
are fully paid, performed and discharged; provided, however, notwithstanding anything to the
contrary in this Guaranty, Guarantor's obligations under this Guaranty arising under the Facility
Lease Agreement shall cease with respect to any Obligations arising after MiLB is released in
writing by County from all liability, as the tenant or lessee under such lease. Obligations shall
not be considered fully paid, performed and discharged unless and until all payments by MiLB
are no longer subject to any right on the part of any person whomsoever, including but not limited
to MiLB, MiLB as a debtor-in-possession, and/or any trustee in bankruptcy or receiver or assignee,
to set aside such payments or seek to recoup the amount of such payments, or any part thereof.
The foregoing shall include, by way of example and not by way of limitation, all rights to
recover preferences voidable under Title 11 of the United States Code. In the event that any
such payments by MiLB to County are set aside after the making thereof, in whole or in part, or
settled without litigation, to the extent of such settlement, all of which is within County's
discretion, Guarantor shall be liable for the full amount County is required to repay plus costs,
interest, attorneys' fees and any and all expenses which County paid or incurred in connection
therewith.
12. This Guaranty shall be binding upon the successors and assigns of the
Guarantor and shall inure to the benefit of County's successors and assigns. The dissolution
of Guarantor shall not terminate this Guaranty.
13. This Guaranty cannot be modified orally. No modification of this
Guaranty shall be effective for any purpose unless it is in writing and executed by County. All
prior agreements, understandings, representations and negotiations, if any, are merged into this
Guaranty,
14. Should any part, term or provision of this Guaranty be declared invalid,
void or unenforceable, such part, term or provision shall be severed from the remaining
provisions of this Guaranty, and all remaining provisions shall remain in full force and effect, valid
and enforceable.
15. Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this
3
Guaranty. Guarantor agrees to pay all costs and expenses, including reasonable attorneys' fees
and costs, which are incurred by County in connection with or incidental to any default by
Guarantor in the performance or observance of any provision contained herein, or the exercise or
enforcement by County of any of its rights or remedies under this Guaranty, including the
enforcement, compromise or settlement of the obligations of Guarantor arising hereunder or the
defense or assertion of any rights and claims of County hereunder, by litigation or otherwise. If
any provision of this Guaranty is held to be invalid or unenforceable, the validity or
enforceability of the other provisions of this Guaranty shall not be affected.
16. GUARANTOR AND COUNTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS GUARANTY OR THE
ENFORCEMENT OF ANY COVENANT ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF GUARANTOR OR
COUNTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COUNTY'S ACCEPTANCE
OF THIS GUARANTY.
17. This Guaranty shall be governed by and construed in accordance with the
laws of the State of Florida. Guarantor irrevocably submits to the jurisdiction of any state or federal
court sitting in Indian River County of Florida over any suit, action or proceeding arising out of or
relating to this Guaranty. Guarantor hereby agrees that County shall have the option, in its sole
discretion, to lay the venue of any such suit, action or proceeding in the courts of the State of Florida or
the United States of America for the Southern District of Florida, and irrevocably waives, to the fullest
extent permitted by law, any objection which is may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in such court and any claim that any such suit, action
or proceeding brought in such a court has been brought in an inconvenient forum.
0
IN WITNESS WHEREOF, the undersigned by its duly authorized officer has/have
executed this Guaranty effective as of the 1 a day of May 2009.
NATI NAL ASSOCIATION OF
PROFf SSIONAL BASEBALL
LEAG ES, INC.
Z), ! I `Tt� By: f
Secretary Pat O' nner, President and CEO
Exhibit A
Guaranty of Lease and Other Obligations
*[Attach executed copy of Facility Lease Agreement]*
EXHIBIT D
FORM OF ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE
BY AND AMONG Indian River County, Florida, a political subdivision of the State of Florida
(hereinafter referred to as the "County'), the City of Vero Beach, Florida, a municipal
corporation (the "City'), and MiLB Vero Beach LLC, a Florida limited liability company, as a
single purpose entity affiliate of the National Association of Professional Baseball Leagues, Inc,
a Florida corporation (hereinafter referred to as the "MiLB").
IN RE: Parking Property Lease Agreement Entered into as November 17, 2005 by and between
the Los Angels Dodgers, LLC (the "Dodgers") and the City of Vero Beach, Florida (the
"City'), hereinafter the "Parking Lease", and the real estate subject to the Parking Lease
described in Exhibit "A" attached hereto, hereinafter the 'Parking Property".
NOW THEREFORE, for 510.00 and other good and sufficient consideration, exchanged among
the parties, and the receipt of which is hereby acknowledged, the parties as of the date of
execution of this Estoppel Certificate ("Certificate") respectively acknowledge, state and confirm
that the following statements are true and correct:
(1) The City and County represent and confirm to MiLB that there is no claim or
default under the Parking Lease and that the Parking Lease remains in full force and effect.
(2) The City acknowledges that MiLB and the County concurrently have entered into
a Facility Lease Agreement that includes, in part, the Parking Property, and that the City
consents and agrees with the provisions of Section 6.05 thereof and will recognize MiLB as the
successor to the County under the Parking Lease in all respects thereto.
(3)
The
parties acknowledge, ratify and confirm that
the Parking Lease is and at all
times shall
remain
subject to, subservient, and subordinate in terms and conditions of the Facility
Lease Agreement
between the County and MiLB and that the
reference to the Facility Lease
Agreement
in the
Parking Lease shall hereafter be deemed
to refer to the Facility Lease
Agreement
between the County and MiLB.
(4) In the event of any conflict whatsoever among the terms and conditions of the
Facility Lease Agreement between the County and MiLB and the terms and conditions of the
Parking Lease, the terms and conditions of the Facility Lease Agreement between the County
and MiLB shall supersede, govern over, and control the terms and conditions of the Parking
Lease.
(5) The City confirms and covenants to the County and MiLB not to do or commit to
be done any act or thing which will constitute a breach or violation of any of the terms,
covenants, conditions or provisions of the Facility Lease Agreement between the County and
MiLB.
(6) The Parking Lease is otherwise in full force and effect, the payment of rents is
current, there are no claims, set offs, or counter claims or defenses asserted among the parties
upon the concurrent execution of the Facility Lease Agreement between the County and MiLB,
and in such event MiLB shall be deemed such sublessor accepting and assuming all the rights
and obligations of the Dodgers and the City shall be deemed the sublessee party under the
Parking Lease and agrees to recognize MiLB as the sublessor for so long as the Facility Lease
Agreement between the County and MiLB, or any renewal thereof, remains in full force and
effect.
(7) As an inducement to MiLB to undertake the use of the Facility and enter into the
Facility Lease Agreement between the County and MiLB, and accept and assume all of the rights
and obligations of the Dodgers in the capacity as the sublessor under the Parking Lease, the City
confirms and covenants to MiLB and the County that the definition of "Dodgers Events" in
Section 1.02(e) of the Parking Lease shall be superseded and replaced with the following:
(e) "Dodgers Events" means any and all events and activities held on the
premises of the Facility (including the Parking Property) for which Dodgers shall
retain the use of the Parking Property for parking and uses associated with the
Facility, including, without limitation baseball and non -baseball sporting events
and sports related activities, attraction of Major League Baseball, playing baseball
internationally, meetings, conferences, and the County's use of the Parking
Property in conjunction with its use of the Facility.
If requested
by
any party
hereto, the
parties agree to further memorialize these
confirmations
and
covenants
in a separate
instrument.
[Remainder of page intentionally left blank.]
iA
IN WITNESS OF THE ABOVE, the undersigned, being a duly authorized; representative of the
parties, has caused this certificate to be executed.
[Seal]
Date: C
Attest:
C\
fvu: Clerkof the Circuit Court
Approved as to Form and
Legal Sufficient
By:
Special County Attorney
[Seal]
Date: 7
Attest:
Clerk
Date:
Attest:
Secretary 6�
INDIAN RIVER COUNTY, trI ORIDA
Its: Char
CITY OF VERO BEACH, FLORIDA
By: 5;4�
Its: Mayor
MiLB VERO BEACH LLC, a Florida
limited liability company
By its Managing Member:
NATIONAL ASSOCIATION OF
PROFFiSSIONAL BASEBALL
LEAG ES, INC.
i
Pat O'Cbnner, President and CEO
EXHIBIT "A"
PARKING LEASE
CSD.06
07
PREPARED BY:
Santiago Fernandez, Esq.
Senior Vice President & General Counsel
Los Angeles Dodgers LLC
1000 Elysian Park Avenue
Los Angeles, California 90012
Eric D. Rapkin, Esq.
Akerman Senterfitt
350 East Las Olas Boulevard, Suite 1600
Ft. Lauderdale, Florida 33301
RESERVED FOR USE BY
CLERK OF CIRCUIT COURT
1704661
THIS DOCUMENT NAS BEEN RECORDED
IN THE PUBLIC RECORDS OF
INDIAN RIM COUNTY FL
BK: 1961 PG:1004, Pagel of 21
11/1712006 at 04:28 PM,
JEFFREY K BARTok CLERK OF
COURT
PARKING PROPERTY LEASE AGREEMENT
This PARKING PROPERTY LEASE AGREEMENT (the "Agreement") is entered into
as of November 1j 2005, by and between LOS ANGELES DODGERS LLC, a Delaware
limited liability company ("Dodgers"), and the CITY OF VERO BEACH, a municipal
corporation of the State of Florida (the "City").
RECITALS
A. WHEREAS, Indian River County, Florida, a political subdivision of the State of
Florida (the "County") owns the land and the baseball spring training facility and other
improvements located at 4001 26th Street, Vero Beach, Florida 32960, and known generally as
"Dodgertown" (the "Facility'; and
B. WHEREAS, Dodgers (as successor -in -interest to Los Angeles Dodgers, Inc., a
Delaware corporation) operate the Facility pursuant to the Facility Lease Agreement entered into
by and between Dodgers and the County as of September 1, 2000, recorded in Official Records
Book 1426, Page 0567, of the Public Records of Indian River County, Florida, as amended by
the First Amendment to Facility Lease Agreement, dated as of June 24, 2004, recorded in
Official Records Book 1758, Page 0529, of the Public Records of Indian River County, Florida,
and by the Second Amendment to Facility Lease Agreement, dated on or about the date hereof,
and which has been recorded in the Public Records of Indian River County, Florida prior to the
recording of this Agreement (together, the "Facility Lease Agreement"); and
C. WHEREAS, the City desires to lease from Dodgers, and Dodgers desire to lease
to the City, the Parking Property, as defined in the Facility Lease Agreement, comprised of
approximately 9.1297 acres used by Dodgers to provide public parking for spring training home
games and other events held at the Facility, in accordance with the terms and conditions set forth
in this Agreement
Page'1 of 21
COVENANTS
NOW, THEREFORE, in consideration of the foregoing Recitals (which are hereby
incorporated into this Agreement) and of the mutual promises, covenants, conditions, warranties,
and representations set forth herein, the parties hereto agree as follows:
ARTICLE I
Exhibitions and Definitions
Section
1.01 Exhibits. All
Exhibits attached hereto
are incorporated into this
Agreement and
made a part hereof by
this reference.
Section 1.02 Definitions. All capitalized terms not otherwise defined in this Agreement
shall have the meanings set forth in the Facility Lease Agreement. Additionally, the following
terms shall have the following meanings:
(a) "Agreement" means this Agreement between Dodgers and the City, and
all of the attached exhibits.
(b) "City" means the City of Vero Beach, Florida, a municipal corporation of
the State of Florida.
(c) "County" means Indian River County, Florida, a political subdivision of
the State of Florida.
(d) "Dodgers" means Los Angeles Dodgers LLC, a Delaware limited liability
company.
(e) "Dodgers' Events" means any and all events and activities held on the
premises of the Facility for which Dodgers shall retain the use of the Parking Property for
parking, including, without limitation, Home Games and the County's use of the Facility
for twenty (20) days per Lease Year (as defined in the Facility Lease Agreement)
pursuant to Section 6.04 of the Facility Lease Agreement.
(f) "Effective Date" means November 17 , 2005.
(g) "Facility" means the land and baseball spring training facilities located at
4001 26th Street, Vero Beach, Florida 32960, and known generally as "Dodgertown."
The Facility includes, without limitation, the spring training baseball stadium known as
"Holman Stadium," the eighty-nine (89) unit hotel facility, the conference center with
meeting and dining rooms, the baseball administration building with clubhouses and
weight room, the indoor batting and pitching cages, and the four (4) baseball practice
fields and two (2) half baseball practice fields, and any additional improvements hereafter
constructed on the Land by Dodgers.
(h) "Holman Stadium" means the baseball stadium located at the Facility.
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(i) "Home Games" means all spring training exhibition games to be played
by the Team at the Facility, all games to be played by the Vero Beach Dodgers at the
Facility, and all other professional baseball games played by any other team at the
Facility during the Term.
0) "Improvements" means any and all improvements made to the Parking
Property either: (i) by the City in connection with the Permitted Uses, or (ii) by Dodgers
for the purpose of ensuring the ready availability and adequacy of parking for all
Dodgers' Events. The form and structure of all Improvements will be determined by
mutual agreement of the parties; provided, however, that no Improvement shall be made
upon the Parking Property if such Improvement will interfere in any way with Dodgers'
use of the Parking Property for parking during Dodgers' Events.
(k) "Lease Year' means a twelve month period commencing on December I
of any calendar year of the Term hereof and ending on November 30 of the following
calendar year; provided, fiowever, that the First Lease Year shall commence as of the
Effective Date and end on November 30, 2006.
(1) "Maintenance Standards" means the standards of maintenance, repair, and
operations maintained by managers of comparable facilities (e.g., municipally -owned,
public golf courses) in comparable markets in the State of Florida in accordance with
reasonable commercial practices then in use.
(m) "Major League Baseball" means the Office of the Commissioner of
Baseball, the American and National Leagues of Professional Baseball Clubs, Major
League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., Major League
Baseball Properties Canada Inc., Baseball Television, Inc., MLB Advanced Media, L.P.,
MLB Advanced Media, Inc., MLB Media Holdings, Inc., MLB Media Holdings, L.P.,
MLB Online Services, Inc., and any of their respective present or future affiliates, assigns
or successors.
(n)
"Parking
Property" means
the approximately 9.1297 acre
parcel described
in Recital C,
above, and
more particularly
described in Exhibit A hereto.
(o) "Permitted Uses" is defined in Section 3.01, below.
(p) "Team" means the Major League baseball team owned by Dodgers and
known as the "Los Angeles Dodgers."
(q) "Term" is defined in Section 2.01, below.
Section 1.03 Undefined Terms. Any terms of art used in this Agreement, but not
otherwise defined above, shall have the meanings generally ascribed to them in leases of real
property. All personal pronouns used in this Agreement, whether used in the feminine,
masculine, or neuter gender, shall include all other genders, and the singular shall include the
plural and vice versa.
Page 3 of 21
ARTICLE II
Term and Rent
Section 2.01. Term. The "Term" of this Agreement shall commence on the Effective
Date and shall expire on November 30, 2045, unless this Agreement is terminated earlier by the
parties pursuant to the provisions hereof.
Section 2.02. Rent. In consideration for the leasehold rights granted to the City in this
Agreement, the City shall perform each and every obligation undertaken by it hereunder in a
business -like and timely manner and shall pay to Dodgers the sum of One Dollar ($1.00) per
Lease Year as rent payable in advance.
ARTICLE III
Use of the Parking Property
Section 3.01. Lease and Grant of Rights with Respect to the Parking Property. Dodgers
hereby lease the Parking Property to the City and the City hereby leases the Parking Property
from Dodgers for the Term of this Agreement. Except as otherwise provided in this Agreement,
the City shall have the exclusive right to use, improve, manage, and operate the Parking Property
in accordance with the terms and conditions of this Agreement, provided that the Parking
Property shall be utilized by the City only for the purpose of constructing and operating thereon
(i) a municipally -owned, public golf course or (ii) green space or (iii) a park -like setting or (iv)
any combination of the foregoing three uses (the "Permitted Uses"). Except as otherwise
permitted in this Agreement, during the Term, Dodgers shall not lease to or grant to any person
other than the City, the right to use, improve, manage, or operate the Parking Property.
Section 3.02. The City's Rights and Obligations. During the Term, the City shall have
the following rights, responsibilities, and obligations in connection with the Parking Property:
(a) Control the scheduling and use of the Parking Property in accordance with
the Permitted Uses, provided that all scheduling and use of the Parking Property shall be
subject to the rights of Dodgers to use the Parking Property during Dodgers' Events;
(b) Perform all maintenance of the Parking Property, including, without
limitation, by providing all of the labor and materials required to keep the Parking
Property and all Improvements thereon, clean, safe, free of debris, in good working order
and repair, and in first-class condition consistent with the Maintenance Standards and all
applicable laws and regulations;
(c) Provide all security, crowd control, maintenance, cleaning, landscaping
and other personnel or independent contractors required for the proper maintenance and
operation of the Parking Property;
(d) Obtain and maintain all commercial general Iiability insurance and real
property insurance necessary or appropriate to insure against any liability on the part of
Dodgers, the City, and the County with respect to the Parking Property and/or the loss of
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the Parking Property or the Improvements thereon. The insurance, as it protects
Dodgers' and the County's interests, shall be subject to Dodgers' prior review and
approval and shall cause Dodgers and the County to be named as additional insured
parties on such policies. Further provisions concerning insurance are set forth in
Section 9.05, below. A certificate of insurance evidencing proof of such insurance shall
be provided to Dodgers and the County annually, starting on the beginning date of the
Term and as further provided in Section 9.05, below;
(e) Set rates and charges for the use of the Parking Property by third parties in
connection with the Permitted Uses;
(f)
Control, collect, receive,
and
retain all revenues
generated by any means
in connection
with the Permitted Uses at
the
Parking Property;
(g) Advertise and promote the Permitted Uses at the Parking Property;
(h) Select and employ all concessionaires, licensees, and other contractors
with respect to the Parking Property and the Permitted Uses;
(i) Comply with all applicable laws, ordinances and regulations, including,
but not limited to the requirements of the Americans with Disabilities Act of 1990
("ADA") and any amendments thereto, including Title II, Structural and Title Ill,
Programmatic Accessibility Standards as well as any future additions; and
6) Enter into lawful contracts with third parties relating to any and all of the
foregoing upon terms and conditions which are consistent with the Maintenance
Standards and the terms of this Agreement.
Section 3.03. Limitations on the City's Uses of the Parking Pronertv. The City's rights
under this Agreement are subject to the following additional limitations:
(a) No contract entered into by the City with any third party pursuant to this
Agreement may impair, defeat, or supersede any right of Dodgers hereunder or under the
Facility Lease Agreement.
(b) The City shall not, without Dodgers' and the County's consent, enter into
any contract the term of which extends beyond the expiration date of the Term of this
Agreement.
(c) The City shall take no action which may result in the attachment of a lien
or cloud on Dodgers' interest in or the County's title to the Facility or any portion
thereof, including the Parking Property. 1i; as a result of the City's actions, a lien or
cloud is attached to Dodgers' interest and/or the County's title to the Facility or any
portion thereof, the City shall immediately take all reasonable and necessary steps to
remove such lien or cloud.
Page 5 of 21
(d) The City shall not knowingly occupy or use the Parking Property for any
purpose or in any manner that is unlawful or is not in accordance with the Permitted
Uses.
(e) Except as such records relate to proprietary or confidential business
functions of the City, the City shall maintain all records concerning its responsibilities
under this Agreement which are either required to be maintained pursuant to applicable
law or which are necessary to verify Dodgers' rights and/or the City's obligations under
this Agreement, which records shall be made available to Dodgers at the City's principal
place of business during regular business hours upon two (2) days' prior written notice
from Dodgers.
(f) In accordance with the policies and standards set by Dodgers pursuant to
this Agreement, the City shall function as an independent contractor in fulfilling the
duties required by this Agreement. All staff required by the City to accomplish its
obligations under this Agreement shall be employees of the City and not Dodgers.
(g) The City takes the Parking Property "as is" as of the Effective Date hereof,
with no warranty whatsoever from Dodgers as to its condition or its fitness for the
intended purposes or Permitted Uses.
(h) The City shall provide, at its sole expense, all equipment needed to
perform its responsibilities hereunder.
(i) In connection with the Permitted Uses, the City shall not undertake any
improvements to the Parking Property without the prior permission of (i) Dodgers and
(ii) the County to the extent required pursuant to the Facility Lease Agreement,
0) If Dodgers reasonably believe that the City's failure to comply with any of
its obligations under this Agreement involves a "life safety issue," as hereinafter defined,
Dodgers shall have an immediate right to correct the life safety issue and all reasonable
costs and expenses incurred by Dodgers in correcting the life safety issue shall be due
and payable by the City to Dodgers within thirty (30) days after the submission of an
invoice to the City for the payment of same. If such amount is not paid when due, it shall
bear interest at the prime rate published by the Wall Street Journal from time to time from
the date that the City received Dodgers' invoice until the date payment was made. For
purposes of this Agreement, a "life safety issue" means a situation which imposes an
immediate threat of bodily harm or death to any users or occupants of the Facility or any
portion thereof, including the Parking Property.
(k) Other than the Improvements, or except as otherwise authorized in this
Agreement, the City shall not construct any additional buildings or structures on any
portion of the Parking Property, or make any structural or exterior modifications or
improvements to the Parking Property, without the prior written approval of Dodgers,
which approval shall not be unreasonably withheld. Notwithstanding the foregoing, the
City shall not make any modifications or improvements of any type to the Parking
Property if such modifications or improvements will impede Dodgers' use of the Parking
Property for parking during Dodgers' Events at the Facility. All Improvements,
Page 6 of 21
alterations, or additions placed on the Parking Property by the City shall be conveyed by
the City to the County by a quit -claim deed upon the completion of such Improvements,
alterations, or additions.
(1) On or before the expiration date of this Agreement, or its earlier
termination as provided herein, the City shall remove all of its personal property and
effects, repair any damage caused by such removal, and surrender and deliver the Parking
Property in its "as is" condition. Any personal property or effects not removed within
thirty (30) days after the expiration date of this Agreement or its earlier termination as
provided herein shall be deemed to have been abandoned by the City, and may be
retained or disposed of by Dodgers, at their sole discretion, in accordance with applicable
law.
(m) Upon the expiration or earlier termination of this Agreement, the City
shall return the Parking Property to Dodgers free and clear of any contractual obligations
or other legal encumbrances granted by the City, except utility easements and other
encumbrances necessary for the maintenance and operation of the Parking Property in
accordance with this Agreement.
(n) The Parking Property shall not be used for the manufacture or storage of
flammable, explosive or Hazardous Materials (as defined below), except for Hazardous
Materials typically found for use in connection with the Permitted Uses. For purposes of
this Agreement, "Hazardous Materials" shall mean any containment, chemical, waste,
irritant petroleum product, waste product, radioactive material, flammable or corrosive
substance, explosive, poly -chlorinated biphenyls, asbestos, hazardous toxic substance,
material or waste of any kind, or any other substance that any environmental law
regulates. "Hazardous Materials" shall include, but not be limited to, substances defined
as "hazardous substances," "hazardous materials," or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act,
39 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq.; all applicable state and local laws; and in the regulations adopted
and publications promulgated pursuant to said laws or any amendments or addenda
thereto.
(o) If the City pays the rent and complies with all other terms of this
Agreement, the City may occupy and enjoy the premises of the Parking Property for the
full Term, subject to the provisions of this Agreement.
(p) The City shall have no rights whatsoever to use in any manner the name,
trademarks, service marks, trade names, insignia, symbols, logos, decorative designs,
trade dress, and uniform designs of the Los Angeles Dodgers without the prior written
consent of Dodgers, which may be granted or withheld in each instance in Dodgers' sole
and absolute discretion.
Section 3.04. Expenses and Taxes. The City shall be solely responsible for and pay all
costs and expenses required for the operation, maintenance, and repair of the Parking Property
which are not, by the terms of this Agreement, specifically required to be provided and paid for
Page 7 of 21
by Dodgers, including, but not limited to, all personnel (including supervisory staff), labor,
equipment, telephone, water, sewer, storm water, and materials. Costs for which the City is
responsible shall include, but not be limited to, taxes (except for ad valorem real property taxes,
if any, imposed upon the County in connection with the Facility), gas, electricity and other
utilities related to operation of the Parking Property, and the production of all events or activities
taking place on the Parking Property in accordance with the Permitted Uses. Notwithstanding
anything to the contrary contained in this Agreement, Dodgers shall not be responsible for any ad
valorem real estate taxes assessed or collected with respect to the Parking Property.
Section 3.05 Waste. The City shall not cause, permit, or suffer any nuisance, waste,
damage, disfigurement, or injury to the Parking Property or any fixtures, equipment, or
Improvements thereon, with the exception of reasonable wear and tear, loss or damage by fire,
natural catastrophe, or other casualty, or condemnation.
Section 3.06. Event Control. The City shall have the right, at its sole discretion, to .
cancel or postpone any event or activity to be held at the Parking Property, except parking during
Dodgers' Events.
Section 3.07. Books and Records. All books and records pertaining to the Permitted
Uses of the Parking Property or the City's responsibilities hereunder, except as the same may be
specifically excepted from public disclosure by any law, rule, regulation, or ordinance, shall be
kept in accordance with generally accepted accounting principles and shall be subject to
P
nspection by Dodgers at the City's principal place of business during regular business hours
upon two (2) days' prior written notice to the City.
Section 3.08. Liaison. The City shall name a person to be the liaison to work with
Dodgers with respect to coordinating the mutual responsibilities of the City and Dodgers under
this Agreement.
Section 3.09. Dodgers' Events. The City acknowledges and agrees that notwithstanding
any provision to the contrary in this Agreement, Dodgers have and shall retain the right, at their
sole discretion, to use the Parking Property to provide parking for all Dodgers' Events held at the
Facility during the Term. During Dodgers' Events, Dodgers shall retake full control of the
Parking Property commencing four (4) hours before the Dodgers' Event and ending four (4)
hours after the Dodgers' Event. During such time, the City shall not conduct any activities or
events on the Parking Property. Dodgers' or their parking concessionaire, if any, shall be solely
responsible for the parking operation on the Parking Property during Dodgers' Events, and
Dodgers shall retain any and all revenues derived from the sale of parking on the Parking
Property during Dodgers' Events.
ARTICLE rV
Revenues
Section 4.01. Revenues. At all times during the Term except during such times as
Dodgers are using the Parking Property in connection with Dodgers' Events, the City shall
control, collect, receive, and retain all revenues generated by any means in connection with the
Permitted Uses on the Parking Property, including, but not limited to, all revenues from food and
Page 8 of 21
beverage sales, merchandise sales, concessions and products sales, parking, advertising,
sponsorship, promotional and signage rights, and any other revenues derived or generated in
connection with the Permitted Uses. Dodgers shall control, collect, receive, and retain all
revenues generated by any means in connection with the use of the Parking Property during
Dodgers' Events.
Section 4.02. No Naming Rights. The City shall have no right to sell naming,
affiliation, and/or sponsorship rights in and to the Parking Property. Dodgers shall retain all
Naming Rights granted to them pursuant to Section 7.02 of the Facility Lease Agreement.
ARTICLE V
Default and Remedies
Section 5.01.
The
City's
Default.
The
occurrence of any
one or more of the following
events constitutes a
"Default" by
the City
under
this Agreement:
(a) Failure by the City to observe or perform in any material respect any
covenant, agreement, condition, or provision of this Agreement, if such failure continues
for thirty (30) days after written notice thereof has been delivered by Dodgers to the City;
provided, however, that the City shall not he in Default with respect to matters which
cannot reasonably be cured within thirty (30) days so long as within such thirty (30) day
period, the City commences such cure and diligently proceeds to complete the same
thereafter;
(b) The levy upon, under execution or the attachment by legal process, the
City's interest hereunder, or the filing or creation of a lien in respect of such interest,
which levy, attachment, or lien is not released, discharged or bonded against within one
hundred eighty (180) days from the date of such filing;
(c) The City is finally adjudicated insolvent or bankrupt or admits in writing
its inability to pay its debts as such mature, or makes an assignment for the benefit of
creditors, or applies for or consents to the appointment of a trustee or receiver for the City
or for the major part of its property;
(d) A trustee or receiver is appointed for the City or for the major part of its
property and such trustee or receiver is not discharged within one hundred eighty (18o)
days after such appointment; or
(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or any other proceedings for relief under any bankruptcy law, or similar law
for the relief of debtors, are instituted by or against the City, and, if instituted against the
City, are allowed against it or are consented to by it or are not dismissed within one
hundred eighty (180) days after such institution, to the extent pemritted by law.
If a Default occurs, Dodgers shall have the rights and remedies set forth in this Agreement,
which shall be distinct, separate, and, to the extent not mutually exclusive, cumulative, and shall
Page 9 of 21
not operate to exclude or deprive Dodgers of any other right or remedy allowed or available to
them by law or equity.
Section 5.02. Dodgers' Default. In the event of any failure by Dodgers to observe or
perform any material covenant, agreement, condition, or provision of this Agreement wherein
the City's remedies on account thereof are not otherwise specifically provided for in this
Agreement, and if such failure shall continue for thirty (30) days after notice thereof has been
delivered by the City to Dodgers, then Dodgers shall be deemed to be in Default hereunder;
provided, however, that Dodgers shall not be in Default with respect to matters which cannot
reasonably be cured within thirty (30) days so long as within such thirty (30) day period,
Dodgers commence such cure and diligently proceed to complete the same thereafter.
Section 5.03. Remedies. In the event of a Default by either parry, the party not in
Default shall be entitled, as a non-exclusive remedy, and in addition to or in lieu of an action for
damages, to seek an injunction or decree for specific performance or equitable relief from a court
of competent jurisdiction to enjoin or remedy the Default.
ARTICLE VI
Enforceability
Section 6.01. Binding Effect: Enforceability. The terms and provisions set forth in this
Agreement shall be binding and enforceable by and against the parties in accordance with the
terms hereof.
ARTICLE VII
Assignment and Sublease
Section 7.01. No Assignment or Sublease by City. The City shall not have the right to
assign this Agreement, or sublease the Parking Property or any portion thereof, and any attempt
by the City to assign or sublease shall be null and void ab initio and shall constitute a material
breach of this Agreement by the City, which breach shall entitle Dodgers to terminate this
Agreement immediately upon giving written notice of termination to the City.
Section 7.02. Sale of Team. Dodgers may assign this Agreement to any person or entity
that acquires the Team (by any form of acquisition), with the approval of Major League
Baseball, provided that any such assignee explicitly assumes in writing Dodgers' duties and
responsibilities under this Agreement (in which case the liability of Dodgers shall cease with
respect to liabilities accruing from and after such transfer).
ARTICLE VIII
Miscellaneous Terms
Section 8.01. Notices. Any notice required by or permitted under this Agreement shall
be given in writing and shall be deemed delivered when delivered by hand or by overnight
Page 10 of 21
delivery service, addressed as follows (or to such other address as a party shall inform the other
party):
If to Dodgers: Los Angeles Dodgers LLC
Dodgertown
P.O. Box 2887
Vero Beach, Florida 32961
Attention: Mr. Craig Callan
Phone: (772) 569-4900
Fax: (772) 299-6708
Copy to: Los Angeles Dodgers LLC
1000 Elysian Park Avenue
Los Angeles, California 90012
Attention: Santiago Fernandez, Esq.
Senior Vice President & General Counsel
Phone: (323) 224-1312
Fax: (323)224-1595
If to County: Indian River County
1840 25h Street
Vero Beach, Florida 32960
Attention: County Administrator
Phone: (772) 226-1202
Fax: (772)978-1822
If to City: City of Vero Beach
(�' ,3 ao e.
U.
kaRgbc)
Attention (? :�t�q�q�t? kr
Phone: -7I a 41 rs- 4708'
Fax: (,-7 7 a) 4 -7 S -y 7 9�a
Section 8.02. Amendments. This Agreement may be amended only in a writing
executed by both parties with equal formality.
Section 8.03. Entire Agreement. This Agreement, including its exhibits, constitutes the
entire agreement between the parties and supersedes all prior or contemporaneous agreements
(whether oral or written) between them.
Section 8.04. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to choice of law rules or
principles.
Section 8.05. Counterparts. 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. Either party may also execute a copy of this Agreement
Page 11 of 21
and deliver it by facsimile transmission; provided, however, that such party shall promptly
deliver an original signed copy.of the Agreement to the other parry.
Section 8.06. Jurisdiction and Venue. The exclusive, convenient, and proper venue for
any legal proceeding arising out of, or related to, this Agreement shall be Circuit Court for the
Nineteenth Judicial Circuit, in and for Indian River County, Florida Division. Each party waives
any defense, whether asserted by motion or pleading, that the Indian River Circuit Court is an
improper or inconvenient venue. Moreover, all parries to this Agreement, persons and entities
alike, consent to the personal jurisdiction of the Circuit Court, Nineteenth Judicial Circuit, in and
for Indian River County, and irrevocably waive any objections to said jurisdiction.
Section 8.07. Time of Essence. Time is of the essence in the performance of this
Agreement.
Section 8.08. Consequential Damages. Under no circumstances shall either party or any
of its subcontractors, suppliers and vendors be liable to the other party for any indirect, special,
incidental, and/or consequential damages, including, but not limited to, loss of profits or
interruption of business, whether such damages are alleged in tort, contract, indemnity, or
otherwise, even if such party has been apprised of the possibility of such damages. To the extent
permitted by law, each party hereby releases the other from liability for such damages.
Section 8.09. Headings. The headings used in this Agreement are for convenience of
reference only and shall not constitute a part hereof or affect the construction or interpretation
hereof.
Section 8.10. Severability. If any clause, provision, or section hereof is held illegal,
invalid, or unenforceable by any court, the illegality, invalidity, or unenforceability of such
clause, provision or section shall not affect any of the remaining clauses, provisions, of sections
hereof, and this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable clause, provision or section had not been contained herein.
Section 8.11. Waiver. No failure on the part of any party to exercise, and no delay in
exercising, and no course of dealing with respect to any right hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy provided at law or in equity,
except as expressly set forth herein.
Section 8.12. Third Party Beneficiary. No person other than the City, the County,
Dodgers, the Indemnified Dodgers Parties, the Indemnified City Parties, and the successors and
assigns of such, shall have any rights whatsoever under this Agreement.
Section 8.13. Radon Notice. Florida law requires the following notice to be provided
with respect to the contract for sale and purchase of any building, or a rental agreement for any
building, and the parties hereto acknowledge and confirm receipt of the following:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
Page 12 of 21
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county health
department."
Section 8.14. Estoppel Certificates. At any time, within twenty (20) days after request
by either party, the other party shall certify in writing to the requesting party, or any person
specified by the requesting party, to the effect (a) whether this Agreement is unmodified and in
full force and effect (or if there has been modification, that the same is in full force and effect as
modified and setting forth such modification); (b) whether or not to the best of the other party's
knowledge, the requesting party is in Default hereunder; and (c) any other information which the
requesting party reasonably requests to be confirmed.
ARTICLE IX
Indemnification and Insurance
Section 9.01. Indemnification by the City. To the fullest extent permitted by law, the
City shall indemnify, protect, and hold harmless Dodgers, the County, and their respective
owners, managers, stockholders, directors, officers, employees, agents, representatives, partners,
affiliates, predecessors, heirs, successors and assigns, and each and every person acting by,
through, under or in concert with them, or any of them (hereinafter collectively and individually
referred to as the "Indemnified Dodgers Parties") from, and shall defend the Indemnified
Dodgers Parties against, any and all "liabilities" (as hereinafter defined) for any "bodily injury"
(as hereinafter defined) or "property damage" (as hereinafter defined) whatsoever arising out of
or resulting from any Default by the City and/or occurring in, on, or about the Parking Property
and/or Improvements to the extent such injury or damage is caused by the negligence or willful
misconduct of the City or of the City's agents, contractors or employees, but not to the extent
caused by the negligence or willful misconduct of the Indemnified Dodgers Parties. In the case
of any action or proceeding being brought against the Indemnified Dodgers Parties by reason of
any such claim, the City, upon notice from the Indemnified Dodgers Parties, shall defend the
same at the City's expense by counsel reasonably satisfactory to Dodgers.
Section 9.02. Indemnification by. Dodgers. To the fullest extent permitted by law,
Dodgers shall indemnify, protect, and hold harmless the City and its officers, agents, and
employees, and each of their respective successors and assigns (collectively, the "Indemnified
City Parties") from, and defend the Indemnified City Parties against, any and all "liabilities" (as
hereinafter defined) for any "bodily injury" (as hereinafter defined) or "property damage" (as
hereinafter defined) whatsoever arising out of or resulting from any Default by Dodgers and/or
occurring in, on, or about the Parking Property to the extent such injury or damage is caused by
the negligence or willful misconduct of Dodgers or Dodgers' agents, contractors or employees,
but not to the extent caused by the negligence or willful misconduct of the Indemnified City
Parties. In the case of any action or proceeding being brought against the Indemnified City
Parties by reason of any such claim, Dodgers, upon notice from the Indemnified City Parties,
shall defend the same at Dodgers' expense by counsel reasonably satisfactory to the City.
Section 9.03. Definitions. As
liabilities, claims, damages (excluding
demands, causes of action (whether in
used in this Agreement,
consequential damages),
tort or contract, in law o
Page 13 of 21
"liabilities" shall mean all
losses, penalties, litigation,
equity or otherwise), suits,
proceedings, judgments, disbursements, charges, assessments, and expenses (including
reasonable attorneys' and experts' fees and expenses incurred in investigating, defending, or
prosecuting any litigation, claim or proceeding whether out of court, at trial or in any appellate or
administrative proceeding). `Bodily injury" means bodily injury, sickness or disease sustained
by a person, including death resulting from any of the foregoing. "Property damage" shall mean
physical injury to tangible property, including all resulting loss of use of that property, or loss of
use of tangible property that is not physically injured.
Section 9.04. Independent Provisions. The provisions of Sections 9.01 through 9.03,
inclusive, are independent of, and will not be limited by, any insurance obligations in this
Agreement, and shall survive the expiration or earlier termination of this Agreement with respect
to any claims or liability arising in connection with any event occurring prior to such expiration
or termination.
Section 9.05. Insurance. Commencing upon the Effective Date and throughout the
remainder of the Term, the City shall maintain, at its sole cost, the following insurance:
(a) A commercial general liability insurance policy in an occurrence form
covering the insured against all bodily injury and property damage liability that may rise
or be claimed due to the City's use of the Parking Property and/or Improvements in a
minimum amount of coverage of One Million Dollars ($1,000,000) for injuries to persons
in one accident, One Million Dollars ($1,000,000) for injuries to any one person and One
Million Dollars ($1,000,000) for damages to property. The commercial general liability
insurance policy in an occurrence form shall also include contractual liability coverage
including a Broad Form Endorsement covering the insurance provisions of this
Agreement and the performance by the City of the indemnification provisions set forth in
this Agreement.
(b) Special form (all risk) property insurance covering (1) the Parking
Property and all Improvements, including, but not limited to, any additional
Improvements undertaken by the City, in an amount not less than one hundred (1001/6)
percent of their actual replacement costs from time to time existing during the Term of
this Agreement, providing protection against any peril included within the classification
"all risks" of physical loss or damage, together with insurance against sprinkler damage,
vandalism, malicious mischief, and water damage of any type and theft. The proceeds of.
such insurance shall be used for the repair or replacement of the property so insured.
(c) All of the insurance policies required under Sections 9.05(a) and 9.05(b),
above, shall be effected from insurance companies recognized by and licensed in the
State of Florida, and shall include a Notice of Cancellation or material Coverage Change
provision of thirty (30) days' notice in favor of Dodgers. The City shall provide Dodgers
and the County with a duly executed Certificate of Insurance for each such policy. The
City shall maintain the Certificate of Insurance on file with Dodgers at all times during
the Term. The policies required under Sections 9.05(a) and 9.05(b), above, shall name
the Indemnified Dodgers Parties as additional insured parties.
(d) If the City fails to furnish the Certificate(s) of Insurance as required above,
Dodgers may, after notice and an opportunity to cure as set forth in this Agreement,
Page 14 of 21
obtain the insurance, and the premiums on that insurance shall be deemed additional rent
to be paid by the City to Dodgers on demand. The City shall be responsible for securing,
at its own expense, whatever insurance coverage it may desire on the contents of the
Parking Property and the Improvements. All Certificates of Insurance required by this
Lease shall be provided on a standard ISO form.
ARTICLE X
Force Majeure
Section 10.01. Force Maieure Event. Should any fire or other casualty, act of God,
earthquake, flood, hurricane, lightning, tornado, epidemic, landslide, war, riot, civil commotion,
general unavailability of materials, strike, slowdown, labor dispute, governmental laws or
regulations, or other occurrence beyond the City's or Dodgers' control ("Force Majeure Event")
prevent performance of this Agreement in accordance with its provisions, performance of this
Agreement by either party shall be suspended or excused to the extent commensurate with such
occurrence, except as specifically provided herein.
Section 10.02. Partial Destruction. In the event of a partial destruction of the Parking
Property and/or Improvements, if the City determines that the undamaged portion of the Parking
Property and/or Improvements is still suitable for the Permitted Uses, then this Agreement shall
continue in full force and effect with no adjustments in the obligations of the parties, and the City
shall restore the Parking Property and Improvements as soon as possible from the insurance
proceeds or the City's own funds.
Section 10.03. Parking Property Not Suitable for Permitted Uses. In the event of total or
partial destruction or damage of the Parking Property and Improvements, if the City determines
that the Parking Property and/or Improvements are not suitable for the Permitted Uses and/or
cannot be used in connection with the Permitted Uses, then this Agreement shall be suspended
immediately until the Parking Property and/or Improvements are repaired. Within twelve (12)
months of the event of such total or partial destruction or damage, the City, with assistance of
Dodgers, but not at Dodgers' expense, shall begin to repair or rebuild the Parking Property
and/or Improvements using the proceeds from the property insurance for that purpose and shall
diligently pursue such repair or rebuilding until completed. This Agreement shall continue to be
suspended until the Parking Property and/or Improvements are once again suitable for the
Permitted Uses.
ARTICLE XI
Zoning and Permitting
Section 11.01. Zoning and Permitting. It shall be the sole obligation of the City, with
assistance from Dodgers, but not at Dodgers' expense, to obtain any permits and/or zoning
changes which may be required to construct the Improvements and any additional improvements
which the City may hereafter desire to make to the Parking Property. Dodgers, acting solely in
their capacity as the landlord, shall cooperate with the City as may be reasonably required, to
enable the City to obtain any permits and/or zoning changes for the Improvements and any
Page 15 of 21
additional improvements, including, but not limited to, by joining in any applications for such
permits and/or zoning changes.
ARTICLE XII
Consents and Approvals
Section 12.01. Granting or Failure to Grant Approvals or Consents. All consents and
approvals which may be given by a party under this Agreement shall, as a condition of their
effectiveness, be in writing. The granting by a party of any consent to or approval of any act
requiring consent or approval under the terms of this Agreement, or the failure on the part of a
parry to object to any such action taken without the required consent or approval, shall not be
deemed a waiver by the party whose consent was required of its right to require such consent or
approval for any other act.
Section 12.02. Standard. Unless this Agreement specifically provides for the granting of
consent or approval at a party's sole discretion, then consents and approvals which may be given
by a party under this Agreement shall not (whether or not so indicated elsewhere in this
Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied
within the time period provided, and if no such time period has been provided, within a
reasonable time. Upon disapproval of any request for a consent or approval, the disapproving
party shall, together with notice of such disapproval, submit to the requesting party a written
statement setting forth with specificity its reasons for such disapproval.
Section 12.03. Deemed Approval. If a party entitled to grant or deny its consent or
approval (the "Consenting Party") within thirty (30) days (or a shorter specified time period)
fails to do so, then, provided that the request for consent or approval bears the legend set forth
below in capital letters and in a type size which is not less than that provided below, the matter
for which such consent or approval is requested shall be deemed consented to or approved, as the
case may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD
PROVIDED IN THE LEASE AGREEMENT SHALL CONSTITUTE AUTOMATIC
APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH RESPECT TO
SECTION [_ OF THE LEASE AGREEMENT."
Section 12.04. No Fees, etc. Except as otherwise expressly authorized in this Agreement,
no fees or charges of any kind or amount shall be required by either party hereto as a condition
of the grant of any consent or approval which may be required under this Agreement (provided
that the foregoing shall not be deemed in any way to limit the City's acting in its governmental,
as distinct from its proprietary, capacity from charging governmental fees on a
nondiscriminatory basis).
Page 16 of 21
ARTICLE XIII
Subservience to Facility Lease Agreement
Section 13.01. Subservience to Facility Lease Agreement. This Agreement, being a
sublease under the Facility Lease Agreement, is and at all times shall remain subject, subservient
and subordinate to the terms and conditions of the Facility Lease Agreement. In the event of any
conflict whatsoever between the terms and conditions of this Agreement and the terms and
conditions of the Facility Lease Agreement, the terms of the Facility Lease Agreement shall
supersede, govern over, and control the terms and conditions of this Agreement. Dodgers and
the City shall not do or permit to be done any act or thing which will constitute a breach or
violation of any of the terms, covenants, conditions, or provisions of the Facility Lease
Agreement
Section 13.02 Assumption by the County. In the event that the Facility Lease
Agreement expires or is terminated before this Agreement expires or is terminated, the County
shall assume all of the rights and obligations of Dodgers under this Agreement and the City shall
be entitled to continue to occupy and use the Parking Property in accordance with the terms and
conditions hereof until this Agreement expires or is terminated.
[signatures on next page]
Page 17 of 21
IN WITNESS THEREOF, the undersigned have executed this Agreement as of the day and year
fust above written.
Date:
WITNESSES:
%rk=
Print name:�n`c ik aag r
Irene 9. 1
STATE OF FLORIDA )
)ss:
COUNTY OF INDIAN RIVER )
LOS ANGELES DODGERS LLC
AS LESSOR
By:
The foregoing instrument was acknowledged before me this li r' day of Ncve...�
2005, by r r
a• Cale.- I&ta• Cale. -as VtLe Pve, rA ..i of Los Angeles Dodgers LLC, a
Delaware ed rability company, on behalf of such limited liability company. She/he is
personally known to me or produced a valid driver's license as identification.
Notary Public
Print Name: PV; c D
My commission expires:
Erie D. Rapkin
?r,_C0mmiSiM#Dmt3129
s 06o2M
Page 18 of 21
[Seal) CITY OF VERO BEACH
AS LESSEE
Date: i — IS - 05 By,11Z M ��t=2
Attest: Its:
CIerk.
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
•
STATE OF FLORIDA )
)ss:
COUNTY OF INDIAN RIVER )
The foregoing instrument was ac owledged before me this � day of ( ,
2005, by as F of City of Vero Beach, a
municipal corpoiPation of the State of F orida on behalf o uch municipal corporation. She/he is
personally known to me or produced a valid driver's license as identification -
y F
Notary Public-
Print
u licPrint Name:
My commission expires:
- r MY CCqD9
�
3' 'e E1a'1HES,Mrre 262708
Page 19 of 21
JOINDER AND CONSENT
INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida
(the "County") hereby joins in the foregoing Parking Property Lease Agreement in order to
evidence its consent and agreement to the provisions of Section 13.02 thereof.
[Sea]]
Date: 11-08-05 By:
Its:
Artt
C erk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
By:
pecial County Attorney
STATE OF FLORIDA )
COUNTY OF INDIAN RIVER )
INDIAN RIVER COUNTY, FLORIDA,
AS LESSOR
The foregoing instrument was acknowledged before me this 8th day of November
2004,9ry Thomas S. Lowther , as Chairman of Indian River County, Florida, a
political subdivision of the State of Florida, on behalf of such political subdivision. is
personally known to me axxmdneadsixvedix# dziveatk di�tail6R�ptjAt�tjptkxx
ZClint �, ? Kmbery E Mmsung
Notary Public e: MyCoMmssrosx D06503 EMPIRES
Print Name: Kimberly E. Massunqa; tu♦1%2007
%]��y��,.' p�p®SIWIKYI LAM WSUPANCEMC'
My commission expires: July 15, 2007 rt
EXHIBITS:
Exhibit A Legal Description of Land.
irrz84532;3 Page 20 of 21
EXHIBIT A
LEGAL DESCRIPTION OF PARKING PROPERTY
(ALSO KNOWN AS A PORTION OF.DODGERTOWN PARCEL 2)
A PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 33 SOUTH, RANGE 39 EAST,
INDIAN RIVER COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF SAID SECTION 3; THENCE SOUTH 67
DEGREES 59 MINUTES 23 SECONDS EAST, A DISTANCE OF 80.89 FEET TO A POINT
ON THE SOUTH RIGHT OF WAY LINE OF INDIAN RIVER FARMS WATER CONTROL
DISTRICT CANAL A3; THENCE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST,
ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE OF 288.78 FEET, TO THE
POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND; THENCE
CONTINUE SOUTH 89 DEGREES 45 MINUTES 39 SECONDS EAST, ALONG SAID LINE,
A DISTANCE OF 392.00 FEET; THENCE SOUTH 0 DEGREES 14 MINUTES 21 SECONDS
WEST, A DISTANCE OF 876.82 FEET; THENCE SOUTH 89 DEGREES 45 MINUTES 39
SECONDS EAST, A DISTANCE OF 414.56 FEET; THENCE SOUTH 63 DEGREES 53
MINUTES 04 SECONDS EAST, A DISTANCE OF 149.35 FEET; THENCE NORTH 89
DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF 905.94 FEET; THENCE
NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A DISTANCE OF 85.00 FEET;
THENCE NORTH 89 DEGREES 45 MINUTES 39 SECONDS WEST, A DISTANCE OF
35.00 FEET; THENCE NORTH 0 DEGREES 14 MINUTES 21 SECONDS EAST, A
DISTANCE OF 857.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINING 9.1297 ACRES, MORE OR LESS.
Page 21 of 21