HomeMy WebLinkAbout2013-0993
Prepared by, record and return to:
Office of the County Attorney
1801 27th St., Vero Beach, FL 32960
Telephone: 772.226.1424
THIRD AMENDMENT TO FACILITY LEASE AGREEMENT
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THIS THIRD AMENDMENT is entered into as of this 4th day of June, 2013, by and
between Indian River County, a political subdivision of the State of Florida ("County") and
Verotown, LLC, a Delaware limited liability company authorized to do business in the State of
Florida ("Verotown").
WHEREAS, on or about May 1, 2009, the County and MiLB Vero Beach, LLC, a
Florida limited liability company ("MiLB"), entered into the Facility Lease Agreement in which
the County leased the Facility to MiLB, and granted to MiLB certain management rights with
respect to the Facility, for a term of five years ending April 1, 2014 ("Original Lease"); and
WHEREAS, on or about June 1, 2011, the County and MiLB entered into the First
Amendment to Facility Lease Agreement ("First Amendment"); and on or about January 1,
2012, the County, MiLB and Verotown, entered into the Second Amendment to Facility Lease
Agreement, in which, among other things, the rights and obligations of MiLB under the Original
Lease and the First Amendment were signed to Verotown ("Second Amendment"); and
WHEREAS, pursuant to section 2.03 of the Original Lease as amended by the First
Amendment and the Second Amendment, Verotown has an option to renew the lease for a
renewal term of five years, commencing on May 1, 2014 and ending on April 30, 2019
("Renewal Term"), which option Verotown desires to exercise in accordance with the terms of
this Third Amendment to Facility Lease Agreement ("Third Amendment") (the Original Lease,
First Amendment, Second Amendment and Third Amendment are collectively referred to as the
"Facility Lease Agreement"); and
WHEREAS, the County and Verotown reaffirm their 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, conference and other activities at the Facility
are unique and diverse, and include, without limitation, increased economic activity and
employment opportunities, increased tourist trade and promotional opportunities, increased
direct and indirect tax revenues, private sector payment of substantial maintenance and operation
expenses which would otherwise burden local taxpayers, and other such benefits,
NOW THEREFORE, in consideration of the mutual undertakings herein and other good
and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree, as follows:
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1. Recitals. The above recitals are true and correct and are incorporated herein.
2. Definitions. Except as set forth herein, all capitalized terms shall have the same
meaning as set forth in the Original Lease, the First Amendment and the Second Amendment.
3. Exercise of Option. Verotown hereby exercises its first renewal option set forth
in section 2.03. The term of the Facility Lease Agreement is hereby extended for the period of
the Renewal Term; provided, however, that, except as set forth in sections 5 and 15 below, this
Third Amendment shall be effective commencing at the beginning of the Renewal Term.
Between the date of this Third Amendment and the commencement of the Renewal Term, the
terms and conditions of the Original Lease, as amended by the First Amendment and the Second
Amendment, shall remain in full force and effect without regard to any amendment of such terms
and conditions set forth in this Third Amendment.
4. Rent. The amount of rent, set forth in section 2.04, shall remain the same during
the Renewal Term. The parties acknowledge that the amount of such rent is based, in part, on (a)
Verotown's payment of the substantial cost of maintenance and operation of the Facility, and
other costs incurred in the performance of this Facility Lease Agreement, which costs would
otherwise be a burden upon the taxpayers of Indian River County, and (b) Verotown's agreement
with respect to net income, set forth in section 11 below.
5. Hotel Room Renovations. As of the date of this Third Amendment, Verotown
has renovated 22 of the 89 hotel rooms included within the Facility. The County shall pay for or
reimburse Verotown for the actual costs of the renovations of the remaining 67 rooms in an
amount not to exceed $600,000. This amount shall not be funded with funds currently on deposit
in the Capital Reserve Account, or required to be deposited by the County into the Capital
Reserve Account in the future. At the election of the County, such renovations shall be
undertaken by the County; otherwise, such renovations shall be undertaken by Verotown, in
which case all books or records of Verotown relating to the renovations shall be open to
inspection by the County upon reasonable request. Procurement of the contractor(s) to perform
such renovations shall be by public bid, conducted by the County in accordance with applicable
law. In the event that renovations are undertaken by Verotown, Verotown shall be reimbursed
for all such renovation costs within the time periods set forth in the Florida Prompt Payment Act,
§218.70, et seq, Florida Statutes; provided, however, that reimbursement shall be in accordance
with the procedure set forth in this Facility Lease Agreement and the Capital Reserve Account
Agreement, and upon submittal and review of supporting documentation. This section 5 shall be
effective as of the date of this Third Amendment.
6. Contribution to Capital Reserve Account. Section 8.02(c) is hereby deleted
and replaced with the following language: `Beginning with the first Renewal Term, the County
shall deposit $250,000 per Lease Year into the Capital Reserve Account as a means of
supplementing the Capital Reserve Account balance. Out of each $250,000 deposited into the
Capital Reserve Account, and subject to the remaining terms of the Capital Reserve Account
Agreement and this Facility Lease Agreement (a) there shall be no limit on the amount of such
funds which may be used for any fixed capital expenditure or fixed capital outlay associated with
the construction, reconstruction or improvement of the Facility which has a life expectancy of
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five or more years, or any other construction, reconstruction or improvement of "infrastructure"
as that term is defined in §212.055(2)(d)(1), Florida Statutes ("Qualifying Expenses"), and (b) no
more than $125,000 may be used for capital expenses or Repairs or Replacements (defined in
accordance with section 8.02(b) of this Facility Lease Agreement, which shall include equipment
used within the Facility for general maintenance, and shall not include motor vehicles licensed
for use on the public roadways) which are not Qualifying Expenses. Verotown shall not be
required to make any capital contribution to the Capital Reserve Account.
7. Liquidated Damages. All references in the Facility Lease Agreement to
Liquidated Damages are hereby deleted. Without limitation, section 10.05 is hereby deleted;
provided, however, that each party shall remain liable for actual damages caused by an event of
Default, as set forth in section 10.
8. Right of Termination. New section 10.05 is hereby added, as follows:
"Notwithstanding any other provision herein, Verotown shall have the right to terminate the
Facility Lease Agreement for any reason upon 120 days written notice to the County. Verotown
shall fully perform the terms and conditions of the Facility Lease Agreement during the 120 day
notice period. A termination by Verotown pursuant to this section 10.05 shall not be an event of
Default."
9. Motor Vehicle Liability Insurance. The following language is added to the end
of existing section 14.05(a): In addition, Verotown shall maintain, at its sole cost, commercial
automobile insurance in an amount no less than $1 million combined single limits on (a) all
motor vehicles owned by the County but operated by°°".tLiotown in connection with its use,
management or operation of the Facility, and (b) all motor vehicles owned or leased by
Verotown and used in connection with its use, management or operation of the Facility.
10. Property Insurance. Verotown's obligation to maintain special form (all risk)
property insurance, as set forth in section 14.05(b) is hereby deleted, and replaced with the
following respective obligations of the parties: (a) the County may elect, at its own cost, to
maintain property and casualty insurance upon the Facility, in such amounts as the County
deems appropriate. In the event of a casualty or force majeure event resulting in the total or
partial destruction of the Facility and the payment of insurance proceeds to the County, the
County shall decide in its sole discretion whether to use such proceeds for the repair or
replacement of the portion of the Facility so destroyed; provided, however, that in the event that
the County decides not to use the insurance proceeds or other funds to repair or replace the
Facility, Verotown shall have the right to terminate this Facility Lease Agreement immediately
(i.e., without the 120 day notice referenced in section 8 above) if it determines in good faith that
the Facility is no longer suitable for the purposes and operations described in section 5.01.
Nothing in this subsection shall be construed as reit.kng the County to insure any property or
assets owned by Verotown which are located at or used in connection with the Facility.
Verotown shall be solely responsible for insuring its own property or assets.
11. Verotown's Net Income. Verotown shall use all Net Income (defined below)
derived from its use, management and operation of the Facility to pay for enhancements or
improvements to the Facility that Verotown deems reasonable or necessary in its sole discretion
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(collectively "Enhancements"); provided, however, that any Enhancement which significantly
and materially alters the Facility or the Land shall require the consent of the County, which
consent shall not be unreasonably withheld. For the purposes of this section, the term Net
Income, shall mean Earnings before Interest, Taxes, Depreciation and Amortization (EBITDA),
determined in accordance with Generally Accepted Accounting Principles. For clarification, the
term "Earnings" in the prior sentence shall mean gross revenues minus costs of goods sold and
general and administrative expenses paid by Verotown in connection with the use, management
and operation of the Facility. Net Income shall be determined annually, using the fiscal or
calendar year normally used by Verotown in its accounting practices. Any Net Income which
has not been used for the purposes set forth in this section as of the expiration or termination of
the Facility Lease Agreement shall be paid to the County. The term "books and records" in
section 3.04 is hereby amended to include Verotown's profit and loss statement, and other
financial records, necessary to verify Verotown's Net Income, and the reinvestment of such Net
Income in Enhancements. The Enhancements shall become the asset or property of the County
upon being permanently affixed to the Facility, or at the expiration or termination of this Facility
Lease Agreement, whichever occurs first. Net losses in any given year within the Renewal Term
shall be credited against Net Income in any following year(s).
12. Museum of Dodgertown Memorabilia. Verotown will use commercially
reasonable efforts to operate, at a location within the Facility, a museum containing memorabilia
of the Brooklyn or Los Angeles Dodgers. The museum shall be open to the public during
reasonable hours of operation to be determined by Verotown.
13.'''' ?ublic Events. The County and Verotown recognize the value and importance of
using the Facility in a manner which provides entertainment opportunities for the residents of
Indian River County. Accordingly, Verotown will endeavor to use the facility in a manner
which provides such opportunities from time to time, thereby enabling the residents of Indian
River County to enjoy and benefit from events held at the Facility.
14. Good Standing — No Violation. The County and Verotown agree that, as of the
date of this Third Amendment, the Facility Lease Agreement is in good standing and neither
party is in breach or violation of the terms and conditions of the Facility Lease Agreement.
15. Notices. Section 13.01 is amended to delete the notice/address information
relating to MiLB, and to replace such information with the following:
If to Verotown:
Copy to:
Peter O'Malley
Verotown, LLC
515 S. Figueroa Street, Suite 1988
Los Angeles, CA 90071
Craig Callan
Verotown, LLC
P.O. Box 2887
Vero Beach, FL 32961
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Copy to:
Kevin M. Barry, Esq.
Rossway Moore Swan, P.L.
2101 Indian River Blvd., Suite 200
Vero Beach, FL 32960
16. Conforming Terms. All remaining terms and conditions of the Facility Lease
Agreement are hereby conformed to be consistent with the amendments set forth herein.
17. Remaining Terms. All remaining terms and conditions of the Facility Lease
Agreement not amended or conformed herein shall remain in full force and effect.
18. Recordation. A copy of this Second Amendment shall be recorded on the Public
Records of Indian River County, Florida.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
their respective names as of the date set forth above.
ATTEST: Jeffrey R. Smith,
Clerk of : urt and C • troll
By:
Deputy Clerk
AFFIX SEAL:
Approved:
tdj )4
osep 1A. Baird, Administrator
Signed and delivered in the presence of:
Print name:
Print name:
BOARD OF COUNTY COMMISSIONERS,
INDIAN RIVER COUNTY ("County")
nynuanuni nn,,,,
a �S5tONF.q"`
By• a/ - wAl .',
Jepeph 1. Flescher, ChairmaiF'=: 1
_
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Approved by BCC: June. 4th 1. 4q013.
„„ N.III 1111110
Approved as to form and legal sufficiency:
By: _
Al. ' . Polackvigl ; Sr., CountyAttorney
VEROTOWN, LLC, a Delaware limited
liability company ("Verotown"), by POM
Vtown, LLC, a Delaware limited liability
corporation, its Manager
By:
Print Name: Peter O'Malley
Print Title: Manager
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STATE OF CALIFORNIA
) ss:
COUNTY OF LOS ANGELES
On , 2013, before me, , personally
appeared Peter O'Malley who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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