HomeMy WebLinkAbout2022-134Prepared By,
Record and Return to:
Michael Zito, Esq.
Asst. County Administrator
c/o Indian River County
180127 th Street
Vero Beach, FL 32960
SECOND AMENDMENT TO THE AMENDED AND RESTATED FACILITY LEASE
AGREEMENT
This SECOND AMENDMENT TO THE AMENDED AND RESTATED FACILITY
LEASE AGREEMENT ("Second Amendment") is made as of the 12- day of�, 2022
(the "Amendment Effective Date"), by and between Indian River County, Florida, ---a' political
subdivision of the State of Florida (hereinafter referred to as the "County"), and Verotown, LLC,
a Delaware corporation, (hereinafter referred to as "Verotown").
RECITALS
A. WHEREAS, County and Verotown entered into that certain Amended and
Restated Facility Lease Agreement by and between County and Verotown effectively dated
January 2, 2019 as subsequently amended by that certain First Amendment to the Amended and
Restated Facility Lease Agreement as fully executed on February 16th, 2021 (collectively referred
to as the "Agreement");
B. WHEREAS, pursuant to Section 13.02 of the Agreement, the Agreement may be
amended in a writing executed by both parties;
C. WHEREAS, in order to modify certain terms of the Agreement, including certain
rights and obligations associated with the Capital Improvements and additional contributions to
the Capital Reserve Account, Verotown and the County now desire to amend the Agreement as
hereinafter set forth, in accordance with the terms and conditions of this Second Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter contained, and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Verotown and the County hereby agree to amend the Agreement as follows:
1. Recitals; Defined Terms. The above Recitals are true and correct and are hereby
incorporated herein by reference. All capitalized terms not defined herein shall be given
the meanings ascribed thereto in the Agreement.
2. County Improvements. Section 8.04(a)(5) of the Agreement is hereby deleted in its
entirety, it being acknowledged and agreed by the parties that, in exchange for the County
depositing the sum of Two Hundred Thousand and No/100 Dollars ($200,000.00) (the
"Holman Reimbursement Amount") into the Capital Reserve Account within three (3)
business days after the Amendment Effective Date, the County shall be relieved of its
obligations set forth in Section 8.04(a)(5). The Holman Reimbursement Amount shall only
be used by Verotown to fund maintenance, Capital Improvements, and Repairs or
Replacements to Holman Stadium or any portion thereof but shall not be subject to any
restriction or limitation set forth in Sections 8.01 or 8.05(b) of the Agreement (but shall be
otherwise subject to the approval process for disbursement in Section 8.03 of the
Agreement).
3. Definitions. Section 1.02 of the Agreement is hereby amended by adding the following
defined term in the proper alphabetical order:
"Executive Building" means the offices, meeting rooms, fitness room, four (4)
batting cages and storage area located in Championship Hall, and, to the extent
required to comply with applicable permit requirements, all appurtenant parking,
hardscape, landscape, walkway, and canopy improvements extending from the
main entrance of Championship Hall.
4. Second Amendment Work; Additional Contribution to the Capital Reserve Account.
(a) Section 8.05(a) of the Agreement is hereby amended to add the following additional
Verotown Improvements (hereinafter collectively referred to as the "Second Amendment
Work"), which Second Amendment Work shall be completed by Verotown to both parties'
reasonable satisfaction no later than December 31, 2024:
"18. Utilizing a certified asbestos contractor that employs proper removal and
disposal practices, prescribed by the United States Environmental Protection Agency
(EPA), obtain all the necessary Federal, State, and Local permits, including building
permits, and cause to be performed the removal of non -friable asbestos within the walls
jointly identified by the parties in the hotel rooms set forth in Exhibit "A," replacement of
any walls removed with like walls in the same locations, and repair of any damage related
thereto to a standard as reasonably determined by Verotown; and
19. Demolish, design, permit, and reconstruct the Executive Building
reasonably similar to the facility rendering shown in Exhibit `B" to this Second
Amendment. The parties acknowledge that the new Executive Building will include all
appurtenant parking, hardscape, landscape, walkway, and canopy improvements required
to comply with applicable permitting requirements, and at Verotown's sole option may
contain additional improvements to these appurtenant facilities.
(b) As consideration for, and as a condition precedent to, Verotown performing the
Second Amendment Work, within three (3) business days after the Amendment Effective
Date the County shall deposit the following sums into the Capital Reserve Account (the
"Second Amendment Fund Amount'j:
1. Five Hundred Seventy Thousand and No/100 Dollars ($570,000.00) for the
project described in Section 8.05(a)(18); and
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2. Three Million, Five Hundred Thousand and No/100 Dollars
($3,500,000.00) for the project described in Section 8.05(a)(19).
(c) Section 8.05(b) of the Agreement is hereby amended by adding the following
sentence pertaining to the Second Amendment Work:
"The Second Amendment Work, as identified in Sections 8.05(a)(18) and (19)
above, shall be eligible for full reimbursement from the County from the Capital
Reserve Account up to the amount of Five Hundred Seventy Thousand and No/ 100
Dollars ($570,000.00) for the project described in Section 8.05(a)(18) and up to the
amount of Three Million, Five Hundred Thousand and No/100 Dollars
($3,500,000.00) for the project described in Section 8.05(a)(19)."
(d) Any portion of the Second Amendment Fund Amount not utilized for the project
for which it was allocated in accordance with Section 4(b) of this Second Amendment shall
be returned to the County. If the cost of the Second Amendment Work exceeds the project
amounts allocated in Section 4(b) of this Second Amendment, those excess costs shall be
borne by Verotown.
(e) Pursuant to Section 8.01 of the Agreement and notwithstanding anything to the
contrary contained in the Agreement, the County hereby approves and grants to Verotown
the Second Amendment Fund Amount to be used by Verotown to perform the Second
Amendment Work in accordance with the terms of this Second Amendment and such
amount shall not be subject to any restriction outlined in Section 8.02 of the Agreement.
Notwithstanding Section 8.01 of the Agreement, Verotown is not required to obtain
County's approval in connection with the Second Amendment Work and Verotown's
performance of any work associated therewith (including, without limitation, any plans,
drawings, selected materials or design features); provided, however, that Verotown is
required to obtain all necessary site plan approvals and building department permits as
required by law. The provisions of Section 8.03 shall apply to disbursement of the Second
Amendment Fund Amount.
5. Executive Building Repair Obligations. Section 8.04(b) of the Agreement is hereby
amended by deleting the reference to "Executive Building" therein, it being acknowledged
and agreed to by the parties that County shall be relieved of its obligation to replace the
roof on the Executive Building. Section 16 of the First Amendment to the Amended and
Restated Facility Lease Agreement is hereby deleted in its entirety. Section 11(iii) of the
First Amendment to the Amended and Restated Facility Lease Agreement is hereby deleted
in its entirety.
6. Additional Insurance. Section 17 of the First Amendment to the Amended and Restated
Lease Agreement is hereby amended to read as follows:
"Until the commencement of construction of the Executive Building project described in
Section 8.05(a)(19) or September 1, 2023, whichever occurs sooner, in addition to the
obligations set forth in Section 8.04(e) of the Agreement, the County agrees to reimburse
Verotown up to One Hundred Thousand and No/ 100 Dollars ($100,000) in documented
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business interruption losses that result from a roofing failure of the roof of the Executive
Building that prevents Verotown from fully utilizing the building for its intended purpose."
7. Reimbursement upon County Default. Section 8.03(c)(i) is hereby amended by deleting
"Fourteen Million Four Hundred Fifty Thousand Dollars ($14,450,000)" and replacing it
with "Eighteen Million, Seven Hundred Twenty Thousand and No/100 Dollars
($18,720,000.00)" in lieu thereof; provided, however, that the foregoing amount will be
automatically amended to reflect any amounts returned to the County pursuant to and in
accordance with Section 4(d) of this Second Amendment.
8. Indemnification; Release by County.
(a) To the extent permitted by Florida law, in addition to County's indemnification
obligations under the Agreement, the County agrees, subject to the limitations set forth in
Sections 8.04(d) 1. and 2., to indemnify, save and hold Verotown harmless from any and
all Losses (as defined in the Agreement) that (i) are caused by or related to (x) a failure of
the existing Executive Building roof or (y) the presence, existence or discovery of any mold
in the Executive Building, in each instance prior to the substantial completion of the
Executive Building project described in Section 8.05(a)(19) and/or (ii) arise out of or are
connected with the hotel room asbestos abatement project described in Section 8.05(a)(18)
(the matters set forth in the immediately foregoing clauses (i) and (ii) being referred to
collectively herein as the "Indemnified Matters"); provided that the County will not be
responsible for any Losses for the Indemnified Matters that are directly caused by the gross
negligence or willful misconduct of Verotown and any liability of the County shall be
reduced proportionately to the extent of any contributory fault chargeable by Verotown. In
the event that the Agreement should terminate and/or Verotown should ever cease to be
the lessee under the Agreement, the County does hereby release and forever discharge
Verotown and its respective affiliates, subsidiaries and direct or indirect parent or affiliate
entities and all present, former and future managers, directors, officers, agents,
representatives, employees, contractors, successors and assigns of Verotown and/or its
respective affiliates, subsidiaries and direct or indirect parent entities (collectively, the
"Released Parties") against any and all claims, suits, controversies, actions, causes of
action, cross-claims, counter -claims, demands, debts, compensatory damages, liquidated
damages, punitive or exemplary damages, other damages, claims for costs and attorneys'
fees, or liabilities of any nature whatsoever in law and in equity, both past and present and
whether known or unknown, suspected, or claimed against the County or any of the
Released Parties, which arise out of or are connected with the hotel room asbestos
abatement project described in Section 8.05(a)(18) and/or the Executive Building project
described in Section 8.05(a)(19) (collectively, the "General Release"). The Released
Parties are intended to be third -party beneficiaries of this Amendment, and the General
Release may be enforced by each of them in accordance with the terms hereof in respect
of the rights granted to such Released Parties hereunder.
9. Bid Process. The County hereby finds that it is in the best interest of the County and its
citizens to waive the requirements for bids and a public procurement process pursuant to
the process defined by the Indian River County ordinance and hereby contracts with
Verotown, as the lessee pursuant to the Agreement, to oversee and manage the Second
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Amendment Work.. As such, Verotown is hereby authorized to independently determine
the selection of any contractors, subcontractors, materialmen and/or agents to perform the
Second Amendment Work.
10. Effect of Second Amendment. Except as specifically amended by this Second Amendment,
the Agreement shall remain in full force and effect and as modified hereby, the Agreement
is ratified and confirmed in all respects. If any of the provisions of this Second Amendment,
or the application thereof to any person or circumstance, shall, to any extent, be invalid or
unenforceable, the remainder of this Second Amendment or the circumstances other than
those as to whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Second Amendment shall be valid and enforceable to the fullest
extent permitted by law. In the event of any conflict between the terms of this Second
Amendment and the terms of the Agreement, this Second Amendment shall control.
11. Counterparts. This Second Amendment may be executed in two or more counterparts, and,
when so executed, will have the same force and effect as though all signatures appeared on
a single document. Any signature pages of this Second Amendment may be detached from
any counterpart without impairing the legal effect of any signature thereon and may be
attached to another counterpart identical in form thereto but having attached to it one or
more additional signature pages. Electronically transmitted signatures shall be deemed
original signatures.
12. Further Assurances. The County and Verotown shall do and perform, or cause to be done
and performed, any and all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes of the
Agreement and this Second Amendment.
13. Construction: Assignment of Construction Warranties. The County and Verotown hereby
agree to utilize commercially reasonable efforts to complete all construction described in
the Agreement and this Second Amendment. Further, the County and Verotown hereby
agree to hold any and all warranties for construction described in the Agreement and this
Second Amendment jointly and severally.
14. Captions and Headings. The captions and headings in this Second Amendment are for
reference only and shall not be deemed to define or limit the scope or intent of any terms,
covenants, conditions or agreements contained herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as of
the day and year first above written.
VEROTOWN, LLC
By: Office of the Commissioner of Baseball, its
Sole Member
[Seal]
By:
Name: Tot-(
Title: (ILes toot , vEX.OtD1n 14 t" -L
Attest:
Secretary
STATE OF
)ss:
COUNTY OF )
This instrument was acknowledged before me by means of 54 physical presence or ❑
online notarization, this,,/5'day of June, 2022 by T �. , as jPR -(, of Verotown, a Delaware
corporation, on its behalf, who X is person own to me or L] has produced
as identification.
By. ,�kc /� A�k'✓&(' --'
Notary public, State of Florida
Print: N. &6mon
My commission expires:,5/ 30 �o
OERTRUDE H. ATIGNSON
a< Notary Public
o State of Florida
i Comm# HH269047
��NCE I E%Pires 5/30/2026
rel
Attest: Jeffrey R. Smith, Clerk of Court
By:
a&k
Jeffrey k . Smith
Approved as to form and legal sufficiency:
By: �.
Dylan Reingold, County Attorney
VA
INDIAN RIVER COUNTY,
By: T.p.�tA I )CJI
Peter O'Bryan, Chairman
Approved by BCC: 07/12/2022
OA 5S '•.
i
'LR��ER COU����•'' .
EXHIBIT "A"
Hotel Rooms Identified for Non -Friable Asbestos Wall Removal
[see attached)
Room #
103
108
110
112 suite
114
115
116
117
119 suite
120
121
122
123
127
135 suite
136
137
138
140
142
143
144
145
150
154
158
160
161
163
175
176
181
182
184 suite
185 suite
187
189
190
JACKIE ROBINSON TRAINING
COMPLEX
Villa rooms containing asbestos in the walls:
6
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C)
EXHIBIT "B"
Executive Building Rendering
[see attached[
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FAWLEY BRYANT - CHAMPIONSHIP HALL CONCEPT
PERSPECTIVE
da
FAWLEY BRYANT
JACKIE ROBINSON
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