HomeMy WebLinkAbout2000-266CE Msfr c
f0ftMmCW DEVELOPMENT AGREEMENT
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ARTICLE 1
DEFINITIONS................................................................I
ARTICLE If
TERMAND SCOPE...........................................................7
2.1, Effective Date and Term ............................................ 7
?.Z Independent Contractor.............................................7
2.3. Subcontractors and Sub -Subcontractors ................. . .............. 7
ARTICLE III
REPRESENTATIONS.........................................................8
3.1. Representations of Dodgers ........... . .............................. 8
3.2. Representations of the County ........................................ 8
ARTICLE 1V
SERVICES.......................................... ........................10
4.1. Selection of Design Criteria Professional . . . . ................. . ........ 10
4.2. Design Build Firm................................................10
4.3. Dodgers' Services ....... .. . .......................... . ......... 10
4.4. Construction.....................................................11
4.5. Machinery and Equipment ................................ . . .. . .. . .. I 1
ARTICLE V
INFOWMATION AND ITEMS TO BE FURNISHED BY THE COUNTY ..... . ......... 13
5.1. Infotznation......................................................13
5.2. Titles and Permits ................................... . ......... ... 13
5.3, State Sales Tax .................................... . . . ............ 13
:'ARTICLE VI
PROJECT PLANNING AND DESIGN PHASE ....................... 14
6.1 Use of Construction Fund - . - - - - 14
6.2 Design Criteria Package .................. . ..................... 14
63 Selection of Design ,Build Firm ...................................... 14
6.4 Changes to Project Before Construction ............................... 14
6.5 County Responsibility.............................................14
ARTICLE VII
CONSTRUCTION COMMENCEMENT AND MONITORING ................... 16
7.1. Construction Commencement ....................................... 16
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7.2. Scheduling......................................................16
7.3 Progress Meetings................................................1.6
ARTICLE VIII
PAYMENTS TO DODGERS .............................. . .................... 17
8.1. Project Cost.....................................................17
8.2. Replenishment of Construction. Fund ................................. 17
8.3. Progress Payments ..................... . .......................... 17
8.4. Requisitions for Payment ........................................... 18
8.5 Requisition Approval .................... . ................ . ........ 1$
8.6. Source of Payment . 18
ARTICLE IX
CHANGES..................................................................19
9.1
(a) Site Plan/Permitting/Changes.....................................
19
(b) Changes to Project.............................................19
9.2
Minor Chanties...................................................19
9.3
Claims and Disputes..............................................19
9.4
Time Limits on Claims............................................19
9.5
Continuing Performance ...................
. ....................... 19
ARTICLE X
ACCEPTt% NCE..............................................................20
10.1
Substantial Completion ............................................
20
10.2
Punchlist items ...................................................20
10.3
Final Completion ....... . ...... .
.................................. 20
10A
Final PaYment ...................................................20
ARTICLE. XI
RESPONSIBILITIES AND LIABILITIES OF THE
DODGERS ........................ 22
11.1
Warranties......................................................22
11.2
Deficiencies.....................................................22
11.3
Warrantics and. Implied Warranties ...................................
22
11-4
indemnification..................................................22
ARTICLE 7111
PROJECT INSURANCE ANIS BONDS ................
. .......................... 24
'.2,1
Insurance.......................................................24
12.2
Amounts and Types...............................................24
1.2.3
Cancellation.....................................................24
12.4
Subcontractor Insurance............................................24
12.5
Bonds..........................................................24
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ARTICLE XIII
EVENTS OF DEEAULT AND REMEDIES ....................................... 26
13.1 Default by the Dodgers ......... ................................... 26
13,2 County's Remedies ............................................... 26
13.3 Default by the County.............................................26
13.4 Dodgers' Remedies...............................................27
ARTICLE XIV
SPECIAL COVENANTS......................................................28
14.1 Rightof Access..................................................28
14.2 Time of Essence ..................................................28
14.3 Construction Drawings ..................................... . ...... 28
14.4 Damage to Property...............................................28
14.5 Consequential Damages ............................................ 28
ARTICLE XV
MISCELLANEOUS..........................................................29
15.1 Counterparts.....................................................29
2
15.2 Headings.......................................................29
1. 32
15.3 Severability.....................................................?9
15.4 Waiver.........................................................29
15.5 Notices.........................................................29
32
15.6 Amendment.....................................................30
32
15.7 Governing Law..................................................30
15.8 Terminology.....................................................30
15.9 Construction......................................................30
ARTICLE XVI
ADDITIONAL AGREEMENTS ................................................. 31
16.1 Additional Agreements ............................................ 31
16.2 Development of Additional Agreements ............. . ................. 31
ARTICLE XV[I
CONSENTS AND APPROVALS ....................
2
17.1 Granting or Failure to Grant Approvals or Consents ....................
1. 32
17.2 Standard. ........................ ...............................32
17.3 Deemed Approval................................................32
17.4. Approvals for County ............................ . . . ...............
32
17,5. No fees, etc . ..... . . ............ . .... ..........................
32
Exhibit A- Legal Description of the Land
Exhibit B- Description of Improvements and Project Costs
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THIS DEVELOPMENT AGREEMENT is made and entered into as of this 1st day of
September, 2000, by and between INDIAN RIVER COUNTY, FLORIDA, a political sub -division of
the State of Florida (hereinafter referred to as tate "County"), and IAS ANGELES DODGERS, INC..
a Delaware corporation (hereinafter referred to as the "Dodgers").
WITNESSETH:
WHEREAS, the County has leased certain real property owned by the County to the Dodgers
pursuant to the Facility Lease Agreement dated as of September 1, 2000; and
WHEREAS, such real property is being leased to the Dodgers partially far the purpose of the
Dodgers, subject to the prior approval of the Ccunry, designing; and constructing certain Improvements to
the existing facilities currently known as "Dodgertown" (the "Project," as hereinafter defined) using die
funds specified herein; and
WHEREAS, the Dodgers have agreed to facilitate design and construction of the Project as
provided herein, and
WHEREAS, the Dodgers have aexeed w bear the expense and responsibility for the Project Cost
to the extent those costs exceed the amotutt of public funds available for the Project, as provided herein;
and
WHEREAS, the County and the Dodgers desire to establish a framework whereby the Project
will be designed and constructed by a Design Build Firm: and
WHEREAS, the Dodgers will oversee and manage all aspects of the Project, subject to the
provisions hereof; and
NOW,THEREFORE, for and in consideration of the premises and mutual covenants hereinafter
contained. and subject to the conditions herein set forth. the parties do hereby covenant, agree, and bind
themselves as follows:
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ARTICLE I
DEFINITIONS
For the purposes hereof, the following terms shall have the meanings stated in this Article I. except
as otherwise expressly provided or unless the context otherwise requires:
1.1. Agreement shall mean this Development Agreement between the Dodgers and the
County.
1.2. A tht of gd Represe tative means any Person{s} attire time designated as such in writing
by either party hereto and furnished to the other parry which designation authorizes the designee(s) to act
for and bind the designating parry with respect to matters covered hereby. N the case ofthe Dodgers, such
designation shall be signed by the President or a Vice President of the Dodgers. In the case of the County,
the initial Authorized Representative will be the County Representative. At any time, either party may
designate any other Person(s) as its Authorized Representative(s) by delivering to the other party a written
designation. Such designation shall remain effective until a new written instrument is filed with or actual
notice is given to the other patty that such designation has been revoked.
1.3. Bonds means Bonds issued pursuant to the Bond Resolution.
1.4. Bond Resolution means that certain Bond Resolution or Resolutions adopted for the
issuance of the Bonds for the acquisition of the Land, construction of the Improvements or for any part
thereof and Payment of the Project Costs.
1.5. Capital Reserve Account means arepair and replacement reserve account provided for
in the Facility Lease Agreement.
1.6. Cerdfleate of Substance al Completion means the certificate issued pursuant to Section
10.1 hereto. using AIA Form G 704.
1.7. Chang, means any addition to, deletion from or modification of the Projector the Services
that is made m accordance with the provisions of Article VIII hereof by wnuen change order signed by the
Dodeem-
1.8. Claim is defined in Section 9.3 of this Agreement.
1.9. Consultant's Competitive Ne9o1iari9g Act means Section 287.055, Florida Statutes.
1.10. Construction Drawings means the plans and specifications for all phases of construction
of the Project,
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1.11. Construction Fund means the fund held and administered by the County containing
$7,000,000 of proceeds from the sale of the Bonds for the purpose of funding tile Project.
1.12. Cgnstruction Schedule means, as to the Project, the schedule ofperformance measures
and benchmarks or milestones for construction of the Project, which is to be established and set forth in
the Design Build Agreement.
1.13. CauntY means Indian River County, a political subdivision of the State of Florida.
1,14. CauntLCIalk means the Clerk of the Circuit County in and for Indian River County.
Florida, acting ex -officio as the Clerk of the County.
1.15. C.i1.11111y Funds means all funding contemplated by this Agreement except Dodgers' Funds.
1,16. County Represen. tative means the County Administrator or his designee.
1.17, unty's Smices means all services of the County to be performed hereunder and/or
the Project Documents, and not reimbursed for out of the Construction Fund, the Capital Reserve Account
or the Dodgers.
1.18. Design Build Agreement means the Design Build Agreement entered into between the
Design Build Firm and the Dodgers.
1.19. Desien Build Firm means a firm selected as authorized by the Consultant's Competitive
Negotiation Act to design and construct the Project.
1.20. means the concise. performance -oriented drawings or
specifications for the Project prepared by the Design Criteria Professional.
1.21. Design Criteria Professional shall mean the designicriteria professional retained or
employed by the County who, with the assistance of the Dodgers, shall be responsible for preparing the
Design Cntena Package for selection of a Design Build Firm. The Design Criteria Professional is a person
or firm quali fled to act as such under the Consult mt's Competitive Negotiation Act retained by the County.
1.22. 1Lp-!'rs' F ,Ends means funds of the Dodgers, exclusive of the funds in the Construction
Fund and to the Capital Reserve Account, required to complete the Improvements.
1.23. Dodggrs'SeCdces merits all services of Dodgers to be performed under the Project
Documents.
1.24. Draw Schedule means the schedule to be used as a basis for Payment of the Project
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Costs setting Forth the anticipated completion date of the various components of the Project and the value
assigned to those different components to be trade apart of the Design Build Agreement, and as updated
from time to time.
1,25, FSl T gnU means the Agent designated in the Escrow Agreement.
1.26. 1: scrow Aereement means that Document Escrow Agreement of even date between the
parties hereto and otherparries thereto, governing the control and release of this Agreement and the other
agreements held thereunder.
1.27. Event of Default means any of the events or circumstances described in Section 13.1 with
respect to Dodgers or Section 13.3 with respect to the County.
1.28. Existing Eacilities means the facilities on the Land described in Exhibit A hereto,
including Hohnan Stadium, an eighty-nine (89) unit hotel facility, a conference center with meeting and
dining rooms, a clubhouse and weight room, indoor batting and pitching cages, four (4) baseball practice
fields. and two (2) half baseball practice fields.
1.29. Facility means the Existing Facilities as improved from time to time.
1.30. Facili"ease Apreement means that Facility Lease Agreement of even date between
the pauses hereto governing the lease of the nand and the Facility.
1.31. Final CgMpledori means that construction of the Project, including satisfaction of the
Puncltlist Items, is substantially complete and that upon satisfaction of the requirements of Section 10.4,
the Design Build Firm and all other persons providing labor or materials for the Project are entitled to fiscal
Payment.
1.32. Improvements means those improvements to the Existing Facilities to be constructed
pursuant to this Agreement as specifically set forth in Exhibit B hereto.
1.33. 1,Lad means the real property in Indian River County, Florida, described in Exhibit A
hereto.
1.34. Minimum Standards means all local, state and federal regulations, codes. laws, or
requirements applicable to the Project, in effect as of the date of issuance of the applicable permit.
1.35. Pavmentisl means the instal lmcngs) of the Project Costs to be paid in accordance with
the Draw Schedule.
1.36. Person means any individual, partnership, joint venture, corporation, association, joint-
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stack company, trust, unincorporated organization, government or any agency or political subdivision
thereof or any other entity recognized as a legal person.
1,37. Project means those Improvements to the Existing Facilities to be designed and
constructed on the I -and by the Design Build Firm using the Construction Fund, as funded initially by the
County and supplemented as needed by the Capital Reserve Account and Dodgers` Funds.
1.38. Project i'osts means all costs for the Project whether incurred prior to or after the date
of this Agreement and, without limiting the generality of the foregoing, shall include:
(a) The cost of preconstruction and development services;
(b) The cost of the construction of all buildings and structures and other improvements,
additions, and alterations to be used as part of or in conjunction with the Project;
(c) The cost of site preparation, including the cost of demolishing or removing any buildings
or structures, the removal of which is necessary or incident to providing the Project;
(d) The cost of architectural, engineering, legal, accounting and related or other consulting
services including without limitation the cost of preparation of plans, specifications, studies, and surveys;
(e) Costs incurred in connection with carrying out any inspections required or made pursuant
to statute, rule, or agreement of the panics,
(f) The cost of certain machinery, equipment. trade fixtures and facilities incidental to the
equipping of the Project; and
(g) The cost associated with procuring, maintaining and complying with all warranties as set
forth to this Agreement.
For purposes of this Agreement, the Project Costs for the Project are 57,000,000, except to the
extent that the additional Project Costs in excess of 57,000,000 are paid from funds in the Capital Reseme
Account or Dodgers" Funds.
1.39. Project Dacuments means this Agreement. the Facility Lease Agreement. the Agreement
for Sale and Purchase, the Document Escrow Agreement. and all other documents relating to the foregoing.
1.40. Proposal means the design development documents for the Project to be prepared by the
Design Build Firm showing the proposed dimensions and type of construction of the Project.
1.41. Pun chlisl Items meatus a list of items of work to be completed and deficiencies to be
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corrected, identified by the Dodgm, which items shall not affect the attainment of Substantial Completion.
Such items must be substantially complete before Final Completion can take place,
1.42. Regl 'srt idon means a requisition for Payment in the form attached as Exhibit C to this
Agreement.
1.43. Scheduied CUIp l U Dat means that date established by the Dodgers and the County
based on the Construction Schedule for Substantial Completion, as the same may be modified from time
to time.
1.44. Services means all preconstruction and development services and all architectural and
engineering design, procurement and construction services related to the Project, including, without
limitation, all labor, materials and facilities, and all other things that are required to provide for the
construction and equipping of the Project.
1.45. State means the State of Florida.
1.46. Substantial Completion and Substantially Complete each means that construction of
the Project is substantially complete in accordance with the Design Build Agreement and the Construction
Drawings so that it may be utilized for its intended use, in accordance with Article X.
1.47. Term means the duration of this Agreement as specified in Section 2.1.
1.48. Termination means termination of this Agreement in accordance with its terms after the
Effective Cate, and Prior to the Effective Date. as provided in the Document Escrow Agreement.
1.49. Warranty Obligations means those obligations specified in Article X1.
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TERM AND SCOPE
2.1, Effective Date and Terra. This Agreement shall become effective upon its execution and
delivery so that the parties may commence actions required hereunder, with the understanding that the
obligations to commence construction of the Project shall become effective upon the delivery of this
Agreement to the parties by the Escrow Agent in accordance with the Escrow Agreement (the "Effective
Pate"'), and shall continue in full force and effect as to the Project until Final Completion (the "Term") (but
expiration of the Terra does not affect the Warranty Obligations by the Design Build Firm), unless
terminated prior thereto in accordance with the provisions hereof.
2.2. Indepgnde t _ontracta . For all purposes hereunder, the Dodgers are an independent
contractor and shall not be deemed an employee or agent of the County. Neither the Dodgers nor any of
the Dodgers' subcontractors, sub -subcontractors, or vendors of any tier, nor any of their employees
employed at the Project shall be deemed to be agents, representatives, employees, or servants of the
County in performance hereunder.
2.3. . The Dodgers may subcontract any portion
of Dodgers' Services to be performed hereunder, but shall not thereby be relieved of any of their
obligations expressly set forth herein.
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REPRESENTATIONS
3.1. Roresjntadans of Dnd9ers. The Dodgers make the following representations as the
basis for their undertakings hereunder:
(a) The Dodgers are a corporation duly organized and existing under the laws of the State of
Delaware, and are qualified to do business under and pursuant to the laws of the State;
(b) The Dodgers have due power and authority to enter into the transactions contemplated by
this Agreement and to carry out their obligations hereunder;
(c) The Dodgers have duly authorized the execution and delivery of this Agreement and,
assuming due execution and delivery by the County, this Agreement constitutes a legal, valid, and binding
agreement of the Dodgers, enforceable against the Dodgers in accordance with its terms, except as
enforcement may be litnited by bankruptcy, insolvency and other laws or equitable principles affecting
creditors' rights;
(d) Neither the execution and delivery of this Agreement, die consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof; conflicts
with or results in a breach othe terms, conditions, orprovisions of any restriction or any agreement or
instrument to which the Dodgers are now a party or by which they are bound, or constitutes a default under
any of the foregoing.
3.2. Rcpresenta 'ons of the County. The County makes the following; representations as the
basis for its undertakings hereunder:
(a i The County is a political subdivision of the State of Florida duly created and existing, and
is qualified to do business under and pursuant to the laws of the State;
(b) The County has due power and authority to enter into the transactions contemplated by
this Agreement and to carry out its obligations hereunder;
(c) The County has duly authorized the execution and delivery of this Agreement and, assuming
due execution and deliveryof this Agreement by the Dodgers, this Agreement constitutes a legal, valid, and
bindume ai cement of the County, enforceable against the County, in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency and other laws or equitable principles affecting
creditors' rights;
(d) The Services performed by or for the County hereunder shall, and the County shall
undertake to cause the Services to be performed by or for Dodgers hereunder to, conform with all
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applicable local, state and federal laws, rubes and regulations, including, but not limited to, Chapter 255,
Section 255.45, Flat. Stat., Sections 255.042, 255.105, 255.20, 287.055 Florida Statutes, and the laws,
rules and regulations concerning labor, equal employment, safety and minimum wages (provided that the
county represents that there are no so-called "prevailing wage" ordinances applicable to the Improvements
or the construction or installation thereof); .and
(e) Neither the execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof. conflicts
with or results in a breach of the terms, conditions, or provisions of any restriction or any agreement or
instrument to which the County is now a party or by which it is bound, or constitutes a default under any
of the foregoing.
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SERVICES
4.1. Selection of Design Criteria Professfn_n_al, The County, in compliance with the
procurement laws, rules, and ordinances applicable to the County, shall: (i) select the Design Criteria
Professional and cause to be prepared as provided herein, by properly registered and qualified architects
and engineers, the necessary Design Criteria Package; and (ii) with the assistance of the Dodgers perform
all design services related to the preparation of the Design Criteria Package.
4.2. Design Build Firm. The Design Build Firm shall be selected by the County with Dodgers'
assistance and prior consent using the County's procurement laws, rules and ordinances and the
Consultant's Competitive Negotiation Act, as applicable. The Dodgers will enter into the Design Build
Agreement and such other necessary contracts with the Design Build Firm pursuant to which the Design
Build Firm will perform its services as hereinafter set forth, which Design Build Agreement and other
contracts shall thereupon be collaterally assigned to the County by the Dodgers pending a Termination
hereof: The Design Build Firm will perform all services necessary to design and construct the Project,
includine but not limited to the following
(a) Design the Project so as to comply with Minimum. Standards in conformity with the Design
Criteria Package and provide administration of the construction of the Project as described in the Design
Build Agreement and the Construction Drawings during construction and until Final Completion:
ib) Devei()p MmpSele ConStrdelion Drawings for construction of the Project,,
(c) Visit the Project site at intervals appropriate to the then current stage of construction in
order to become generally familiar with the progress and quality of the completed construction work and
to determine if the construction work is being performed in accordance with the Design Build Agreement
and the Construction Drawings, but visits shall be at least weckly:
(d) Review and approve or take other appropriate action upon submittals such as shop
drawings, product data and samples, for the purpose of checking for conformance with information given
and the design concept expressed in the Design Build Agreement and the Construction Drawings: and
(e) Construct the Project through Final Completion in accordance with the Construction
Drawings and the Minimum Standards.
(f) Complete all other aspects of the Project design and construction undertaken by the Design
Build Firm.
4.3. Doriggra'Servicts. The Dodgers have the authonry to act as follows:
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(a) Reject construction work that does not conform to the Design Build Agreement and the
Construction Drawings and, when deemed necessary or advisable, require additional inspection or testing
of the construction work;
(b) Approve change orders approved by the Design Build Finn;
(c) Validate amounts owing to the Design Build Firm based on observations at the site and
evaluations of the Design Build Firms' Application for Payment (as more frilly set forth in (f) and (g) below);
(d) Conduct inspections to determine the date or dates of Substantial Comple don and Final
Completion;
(e) Review written warranties and other documents required to be assembled by the Design
Build Firm;
(f) Review the Design Build Firm's Requisitions and, based on their observations and
evaluations thereof, cerifv the amounts due Design Build Firm in accordance with the Draw Schedule, all
as set forth in Article VIII hereof, and
(b} Receive and review all written wan-anties and related documents required to be assembled
by the Design Build Firm upon Substantial Completion, and issue a Requisition for -Final Payment upon the
Design Build Firm's compliance with the requirements of the Design Build Agreement and the Construction
Drawings, all as set forth in Article VIII hereof.
4.4. Const>uedon. The Dodgers shall cause to be performed through the Design Build Firm
the following construction services for completion of construction of the Project:
t a) Provide for permitung for construction of the Projcct:
(b) Provide for all construction supervision, inspection. labor, materials, tools, construction
equipment and subcontracted items necessary for the construction and equipping of the Project in
accordance with the Design Build Agreement and the Construction Drawings, including handling and
txarchousine of materials, supplies and equipment;
(c) Maintain or cause to be maintained an adequate inspection system and perform or cause
to be performed such inspections and testing as will ensure that constntction of the Project is performed
in accordance with the requirements of the Design Build Agreement and the Construction Drawings,
recording or causing to be recorded all such inspections so performed and providing a copy thereof to the
County Representative, which the County or its Authorized Representatives may review at their reasonable
discretion from time to time; and
(d) Construct the Project in accordance with this Agreement, the Design Build Agrectnent and
the Construction Drawings.
4.5. Machingt<,y and- The Dodgers shall procure orcattsc to be procured forthe
Project, all necessarymachinery, equipment and other furnishings and ftxttmrs that are incident and related
to rite operation, maintenance, and administration of the Project. Such machinery and equipment, and the
sales and use tax thereon (except to the extent the County directly acquires such prop CM as 11crcinafter
provided for), shall be included in the Project Costs and be delivered prior to Final Completion. On or
before Final Completion, Dodgers shall cause to be prepared a property inventory listing each item and
noting the condition of each such item of machinery and equipment for the Project.
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ARTICLE V
INFORMATION AND ITEMS
TO BE FURNISHED BY THE COUNTY
5.1. Information. The County and the Dodgers shall provide each other with any policy
changes, of which it is or may become aware, that have been or may be issued regarding the Project or
are pertinent thereto, and such requirement shall be ongoing during the Term hereof through Final
Completion. The failure of party to provide the above infonna6on shall not relieve the Dodgers from their
duty to cause the Project to be constructed in conformance with Minirrttun Standards.
5.2, Titles and Permits. The County shall cooperate in a reasonable and timely manner with
the Dodgers, if necessary, for the Dodgers, and, as required, the County, to secure, as pan of the Project
Costs, permits, environmental permits and licenses necessary for the engineering, procurement, consnucdon
and completion of the Project, including licenses required to pen -nit the Dodgers to do business in the
jurisdiction where Services are to be performed, and local building perrruts and licenses that are required
for construction of the Project.
5,3. State Sales Tax. The Project Costs shall include the liability forthe payment ofstate sales
and use taxes when applicable.
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ARTICLE V1
eROJECT PLANNING AND DESIGN PHASE
6.1 y,1e of ,onstrticfiQQ Eund. After the Effective Plate and no later than March 31, 2001
(or such later date astray be agreeable to the Dodgers), the County shall deposit in the Construction Fund
the sum of $7,040,000. Said Construction Fund, except to the extent funds of the Capital Reserve
Account or Dodgers' Funds are required, shall be the source of funding for the entire Project.
6.2 Qeswgn!CrftU!a Package. As soon as practicable: (i) the Dodgers shall cause to be
prepared a written development plan for delivery to the County setting forth a schedule outlining the time
and actions to be taken with respect to the design and perrnitring of the Project (the "Design Schedule");
00 representatives of the Dodgers and the County shall meet to review and approve the Design Schedule
and to review the site plains, permit applications, and other documents and information relating to designing
and permitting of the Project; (iii) the County, with the assistance of and consent of the Dodgers, as
provided in Section 4.1 hereof, shall select a Design Criteria Professional who meets the criteria contained
in the Consultant's Competitive Negotiation Act and the procurement laws, rules and ordinances applicable
to the County. The Design Criteria Professional shall prepare the Design Criteria Package. The Dodgers
shall review, approve and submit to the County all product data, samples and similar submittals required
by the County or the Design Criteria Professional to be submitted. Based upon said submittals, the Desigi
Criteria Professional shall produce a Design Criteria Package.
6.3 5electinn of j2p5ign BUild Firm. The County, with the assistance and consent of the
Dodgers. as set forth herein, shall select a Design Build Firm to design and build all phases of the Project.
The County wiII use the "request for qualification" method of selection, rather than the "request for
proposal" method. The County Administrator shall appoint a committee for competitive selection and
negotiation comprised of three (3) voting members. The Dodgers, for purposes of this selection process,
shall provide the County Administrator with the name of a Dodgers authorized representative who, together
with two County representatives, shall be appointed by the County Admnistratorto comprise the Selection
Committee. The Comm ice shall shortlist, interview. and recommend to the County Commission the most
qualified Design Build Firm, all as allowed by law and the County's ordinances.
6.4 Changes to Project Before Construction. Once the Design Criteria Package is
approved, no further changes to the Project may be requested by the Counry without the express consent
of Dodgers, to be granted or denied in the Dodgers' sole discretion.
6.5 Count v l2espunsibi ity. During the entire process and through all phases of (a) selection
of the Design Criteria Professional, (b) preparation, with the assistance of the Dodgers, of the Design
Criteria Package, (c) preparation of the request for qualifications and other materials necessary to
commence the process of selecting the Design Build firm, and (d) the review and selection process for the
Design Build Finn, the County, as part of County's Services, shall provide all input, expertise and contrul
(subject to fill cooperation and assistance of ]Dodgers) necessary or incidental to all such processes and
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ARTICLE VII
CONSTRUCTION COMMENCEMENT AND MONITORING
7.1. Cons cdUn- 'omngneement Actual physical commencementofconsttuctionshallnot
occur until the Design Build Firm has been selected and has executed the Design Build Agreement to
construct the Improvements, and the Design Build Firm has prepared or procured the following:
(a) Partial construction drawings and Project specifications which show, to the satisfaction of
the County and the Dodgers, that the Project as designed conforms to the Proposal and can be built for
the Project. Costs,
(b) The permits, approvals and insurance necessary for commencement of construction of the
Project or the applicable component thereof,
(c) The payment and performance bands as required by Article 12 hereof.
7.2. Scheduline. Within fourteen (14) calendar days after physical commencement of
con_svucriom the Dodgers shall obtain from the Design Build Firm a summary time scaled network diagram
for construction of the Project in accordance with the Construction Schedule. In addition to the foregoing,
the Design Bund Firm shall submit to the County and the Dodgers a narrative report once each month with
the updated schedule in a form agreed upon by the Dodgers and the County. It shall include a description
of the progress during the last month in terms of activities completed or in progress, a description of
problern areas, current and anticipated delaying factors and their estimated impact on the cost of
performance of other activities and completion dates, and an explanation of corrective action taken or
proposed.
7.3 Progress Meefinps. During the course of construct ion. weekly progress meetings will
be held at the Project site. The Dodgers will coordinate and chair such meeungs. The Design Build Fimm
shall prepare minutes of each meeting and shall present at each such meeting: (i) an updated network
dia_etarn of the Construction Schedule and Draw Schedule: (ii) information concerning any special problems
and remedial actions to be taken; (iii) status of fees, permits, building inspections and violations, if any, and
t iv I any other matters requested by the Dodgers to be presented.
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ARTICLE V111
PAYMENTS TO DODGERS
8.1. Project Cost. In consideration of the performance and subject to the conditions of this
Agreement, the Design Build Finn shall be paid fortheir Services solely from the Construcdon Fund, the
Capital Reserve Account and Dodgers' Funds. The Project Costs shall be paid to the Design Build Firm,
and to all subcontractors of the Dodgers or the Design Build Firm, in accordance with the Draw Schedule,
which will be a pant of the Design Build Agreement (as amended from time to time) and the further
provisions of this Article. Prior to commencement of construction, pursuant to tate Draw Schedule, the
Dodgers shall be authorized to pay the Design Build Firm, Dodgers and the County (to the extent the
County is expressly entitled to reimbursement) soft costs (including a mobilization payment) (as well as hard
costs for any authorized Improvements paid for by the Dodgers prior to the Effective Date), all of which
amounts shall be reimbursed upon submission of a Requisition executed by the Dodgers and approved by
the County, pursuant to the terms and conditions of the Bond Resolution and this Agreement. A portion
of the Project Costs are allocable to development and other preconstruction services rendered by the
Dodgers, the Design Build Firm or County (as to die County, to the extent expressly set forth herein) prior
to commencement of construction.
8.2. Replenishment oLCanstruction bund. It shall be the responsibility of the Dodgers to
monitor the Draw Schedule, progress Payments, progress of construction and the funds remaining in the
Construction Fund and to keep the County informed. If it appears that the funds remaining in the
Construction Fund will be insufficient to complete the Project, the Dodger; at their option may endeavor
to reduce Project scope in order to stay within budget, or may request funds from the Capital reserve
Account or provide Dodgers' Funds to pay for such additional costs. After depletion of funds in the
Construction Fund and the Capital Reserve Accotuit, all remaining Project Costs shall be paid by Dodgers'
Funds.
8.3. Progress Pavtrtents. Progress Payments from the Construction Fund or the Capital
Reserve Account, subject to the procedures set forth herein. shall be made to the Design Build Firm and/or
to subcontractors of the Dodgers or the Design Build Firm each month to due amount of that portion of the
Project Costs properly allocable to the Services performed to date and that portion of the Project Costs
properly allocable to materials and equipment suitably installed or stored at the site or at some other
locations agreed upon by the parties, less the aggregate of preVious Payments. The County may, with the
Dodgers' approval and request, procure materials directly. mine the fiords in die Cormnrction Ruid or the
Capital Reserve Account. Disbursements from the Construction Fund shall be made to the Dodgers or
the Design Build Firm and subcontractors of the Dodgers or the Design Build Finn upon receipt by the
County of a Requisition executed by the Dodgers. Title to all material and work covered by payments
made shall be die sole property of the County, provided that (i) the work, and material shall remain covered
by and insured pursuant to any insurance policy, including builders nsk and+or casualty loss policy, required
pursuant to this Agreement; and (ii) this provision shall not be construed as relieving the Design Build Firm
or the Dodgers from the responsibility for the care and protection of such material and work or the
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restoration of any damaged construction work, or act as a waiver of the right of the County to require the
fdfillment of all of the terms hereof. Notwithstanding any provision of this Section 8.3 to the contrary, the
County shall be deemed to have a property interest in and to the material and work prior to the Final
Completion of the Project, to the extent, if any, as may be necessary to retain all the benefits and
protections afforded to the County and the Dodgers by the terms and provisions of any insurance policy
or performance bond.
8.4. Rgq]jisitions for Payment. There shall be a weekly progress meeting pursuant to Section
7.3 with the Design Build Firm, at which time the parties will consider and review the Design Build Firm's
proposed Requisition for Payment for that month, which Requisition shall precede formal requests for
Payment by the Design Build Firm. On or before the 25th day of each calendar month, the Dodgers shall
submit to the County a Requisition in accordance with the Draw Schedule and based on the percentage
of work completed and materials delivered to the Project or stored off-site, less the amount of prior
Payments. The submission of a Requisition signed by the Rodgers will constitute a representation by
Dodgers that the construction work has progressed to the point indicated and that„ to the best of the
Dodgers' knowledge, infomnation and belief, the work has been performed in accordance with the Design
Build Agreement and the Construction Drawings.
8.5 RRquj5iJJon Approval. Within five (5) business days after receipt of the Requisition, the
County shall approve and forward the same to the County Clerk for Payment with respect to all Project
Costs or notify the Dodgers in writing that the Requisition has been denied in whole or in part, following
which the Dodgers shell be entitled to true any deficiencies in the denied portion of the Requisition. Upon
the County Clerk's receipt of a Requisition as provided in this Article VNI, the County Clerk shall make
Pavment within ten (14) business days. All Requisitions submitted by the Dodgers for purposes of paying
any Project Costs associated with the Improvements and due to third patties shall be deemed reasonable
and shall be approved by the County.
8.6. Source of Payment. Notwithstanding any other term of this Agreement the parties hereto
agree that the obligation to make any Payment of the Project Costs shall be satisfied solely to the extent
there are amounts on deposit in the Construction Fund sufficient to pay the amount owed and thereafter
to the extent there are amounts on deposit in the Capital Reserve Account or from Dodeers' Funds.
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L%RTICLE IX
CHANGES
9.1 (a) Site PIaa1Peryt4tdnZLCbanges. If during the site planning and permitting process,
changes or additions to the improvements contemplated herein are required to obtain site plan approval
or permits, and as a result the cast of said Improvements increases by more than $270,000, the Dodgers
may elect to terminate this Agreement and other Project Documents, as provided in the Escrow
Agreement.
(b) Changcs to Project. No Change shall be made that would cause the Project
to fail to conform with applicable Minimum Standards, and in all material respects with the description in
the Proposal, the Design Build Agreement or the Construction Drawings without the prior written appmval
of the County, which shall not be unreasonably withheld. It is understood and agreed that no substitutions
fortnaterial major components of the Project specified in the Design Build Agreement and the Construction
Drawings to be used in construction of the Project shall be made by the Dodgers without the prior written
approval of the County, which shall not be unreasonably withheld.
9.2 Minor Changes. The Dodgers at their sole discretion and without County approval may
order minor changes to the Project that enhance or do not detract from the reliability or quality of the
Project or any component pans thereof, provided that such changes are not materially inconsistent with the
intent of the Design Build Agreement and the Construction Drawings, do not substantially alter the design
or appearance of the Project or require any material upward adjustment to the Project Costs, Draw
Schedule, or materially extend the Scheduled Completion Date.
9.3 Claims and Disputes. A "Claim" is a demand or assertion by one of die parties seeking,
as a matter of right, adjustment or interpretation of contract terms, payment of money, extension of time
or other relief with respect to the terms of this Agreement. The term "Claim" also includes other disputes
and matters in question between the County and the Dodgers ansing out of or relating to this Agreement
Claims must be made by written notice. The responsibility to substantiate Claims shall rest with the party
making the Claim.
4.3 Time Limits on Claims. Claims by either party must be made Mthin sixty (60) calendar
days after discovery of the event giving rise to such Claim. Claims must he made by written notice
9.5 Continuing Performance. Pending final resolution of a Claire. unless otherwise agreed
in writing, the Dodgers and the County shall proceed diligently with performance of this Agreentent and the
Dodgers and the appropriate contractors shall continue to be paid in accordance with this Agreement.
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9.6 Clamm Resaloft n.
(a) Disputed Claims between the County and the Dodgers shall be resolved first by negotiation
of the parties, and if such negotiation does not resolve any disputed Claim, such Claim shall be submitted
to arbitration for resolution. Disputed claims between the Design Build Firm and the Dodgers shall be
resolved in accordance with the Design Build Agreement.
(b) Any unresolved Claim arising out of or relating to this Agreement shall be resolved by
expedited arbitration administered by the American Arbitration Association ("AAA") as provided in this
Section and the Commercial Arbitration Rules of the AAA (the "AAA Rules") in effect as of the
commencement of the applicable arbitration proceeding, except to the extent the then current AAA Rules
are inconsistent with the provisions of this Section, in which event the terms hereof shall control. The
arbitration shall be governed by the United States Arbitration Act and the Florida Arbitration Code to the
extent the Florida Arbitration Code is not inconsistent with the United States Arbitration Act and this
Section, and judgment upon the award entered by the arbitrators may be entered in any court having
jurisdiction.
{ cl Anyarbitration pursuant to this Section shall be conducted in Indian RiverCounty, Florida.
(d) (i) The arbitration shall be conducted by one (1) arbitrator in accordance with the
AAA Rules for Expedited Procedures, which arbitrator shall be selected in accordance with the AAA
Rules for Expedited Procedures, and which arbitrator shall have had experience in large-scale commercial
construction.
60 In connection with any arbitration proceeding: (A) No arbitrator shall have been
employed or engaged by a party hereto or its construction consultants within the previous five (5) year
penod. (B) The arbitrator shall be neutral and independent of the parties to this Agreement and their
respective construction consultants; (C) No arbitrator shall be affiliated with either party's auditors; and
(l3) No arbitrator shal l have a conflict of interest with (including, without limitation, any bias towards or
against) a pasty° hereto or its then current construction consultants.
{ e i The award of the arbitrator shall be accompanied by a statement of the reasons upon which
the award is based. The arbitrator shall not have the power to niodih, this Agreement. The award may
not include, and the parties specifically waive, any award of punitive damages. The fees and costs of the
arbitrator shall be home equally by the parties.
(f) The arbitrator may consolidate proceedings with respect to any Clain under this Agreement
with proceedings with respect to any related controversy, provided that any parties to such controversy
who are not parties to this Agreement consent to such consolidation.
( gl The parties will cooperate in the exchange of documents relevant to any Claim. Reposition
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or interrogatory discovery may be conducted only by agreement of the parties or if ordered by the
arbitrator. lit considering a request for such deposition or interrogatory discovery, tate arbitrator shall take
into account that the parties are seeking to avoid protracted discovery in connection with any arbitration
proceeding hereunder.
(h) If party determines that a Claim presents such patty with an extraordinary situation that
requires it to seek emergency provisional relief prior to the appointment ofthe arbitrator who will determine
such Claim, it may seek such emergency provisional relief from any court having jurisdiction, provided
however, that (i) in order to obtain any such relief, the court shall determine that such parry has met any
applicable standards imposed by the law applicable to the relief requested with respect to such party's
rights to such relief and (ii) such relief may only be sought and obtained on the condition that any order
entered by the court will expire ten (10) days after the appointment of the arbitrator unless the party that
sought the order renews its application foremergency provisional relief to the arbitrator within suchten (14)
day period, which arbitrator shall then make dc nQYQ any findings of fact that may be required in ruling on
such renewed application.
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ARTICLE X
ACCEPTANCE
10.1 Substandgli Climpigtion. When the Dodgers consider that the Project is Substantially
Complete, they shall notify the County that the Project is ready for a Substantial Completion inspection.
Within two (2) business days of receipt of the Dodgers' notice bythe County, the Dodgers, together with.
the Design Build Firm will make an inspection to deter -mine whetherthe Project is Substantially Complete,
and will compile a list of items needing substantial completion or not in accordance with the Design Build
Agreement and the Construction Drawings which are required to be remedied in order to achieve
Substantial Completion. The Dodgers shall, before authorizing issuance of Certificate of Substantial
Completion. require completion or correction of such items. Failure to include an item can such list does
not alter the responsibility of the Dodgers to require that all work be completed in accordance with the
Design Build Agreement and the Construction Drawings. When the Dodgers determine that the Project
is. Substantially Complete, the Dodgers shall deliver to the County notice of such determination, together
with a copy of the certificate of occupancy. The date Substantial Completion is considered to have been
achieved is the date the Dodgers authorize the issuance of such Certificate of Substantial Completion. A
list of any outstanding Punchlist Items required for Final Completion of the Project shall accompany the
Certificate of Substantial Completion. Warranties required by the Design Build Agreement and the
Construction Drawings shall commence on the date of Substantial Completion unless otherwise provided
in the Certificate of Substantial Completion.
10.2 Punchlist Items. Upon Substantial Completion of the Project, the Design Build Firm shall
remain responsible for having completed any Punchlist Items that are required for Final Completion of the
Project. The Design Build Firm shall have completed all such Punchlist Items within thirty (30) calendar
days after Substantial Completion. unless the ordering of material will require more than thirty (30) days
or the panics araee otherwise. Within ninety (40) days of Subsinntial Completion. the Design Build Firm
shall provide to the County surveys and as built drawings showing the location of all improvements
constructed as part of the Project.
10.3 Final Completion. Within two (2) business days of the Dodgers` request for final
inspection, the Design Build Firm will promptly make an inspection of the Project and, when the Project
is found to be completed and in accordance with the Design Build .agreement and the Construction
Drawings and the Dodgers have received the final certificate of occupancy from the County Building
Department, the Panics shall agree in writing that the Project has achieved Final Completion.
10.3 Final Pavmcnt The final Payment shall not become due until the Design Build Firm andior
the Dodgers submit to the County (i) an affidavit that all payrolls. bills for materials and equipment, and
other irdebtedness connected with the work for which the County might in any way be responsible have
been paid or will be paid or otherwise satisfied within thirty (30) calendar days after receipt of final
Payment, (ii) consent of the surety (if any) to final Payment, (iii) complete and legally effective releases or
waivers ( reasonably satisfactory to the County and meeting Minimum Standards) of all liens arising out of
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or filed in connection with the Project, and (iv) any warranties required by the Design Build Agnmment and
the Construction Drawings. Following Final Completion, and the submission by the Dodgers of the iterns
required by this Section 10.4 and a Requisition for ficial Payment, the County Representative shall approve
and remit to the County Cleric a. Requisition for final Payment for the balance of the Project Costs ne:rnairing
due and the undisputed amount of such nsquest shall be paid to the Dodgers or the Resign Build Firm within
ten (10) business days to the extent fitnds remain in the Construction Fund, or the Capital Reserve Account,
as the case may be. Final Payment hereunder shall not constitute an acceptance of any work not in
accordance with the Design Build Agreement and the Construction Drawings, and shall not constitute a
waiver of any Claims against the Dodgers or the Design Build Firm.
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ARTICLE: xt
RESPONSIBILITIES AND LIIABILITIES
OF THE DODGERS
11.1 Warranties. In addition to any other warranties of the Design Build Firm contained and/or
required herein, the Design Build Firm and its subcontractors, suppliers and vendors of every tier shall
perform Services in accordance with ,good engineering and construction practices and in accordance with
approved practices and customs and the Minimum Standards, or as the Dodgers may require. The Design
Build Firm will provide to the County all warranties and guaranties required by the Design Build Agreement
and the Construction Drawings, which warranties and guaranties shall be furnished by its subcontractors
and vendors of every tier, and all such warranties and guaranties shall be addressed to and in favor of the
County (which warrandes and guaranties shall also run to the benefit of the Dodgers so long as the Dodgers
are in possession of the Facility under the Facility Lease Agreement), and copies of the foregoing shall be
delivered to the County at Substantial Complexion. The Services shall be provided and the Project shall
be cow nscted, erected, and assembled in a good and workmanlike manner, in accordance with the Design
Build Agrecment and the Construction Drawings. The Design Build Firm will warrant and guarantee all
work required by this Agreement, the Design Build Agreement and the Construction Drawings against
defects in materials, equipment. and workmanship fornot less than one ( 1) year from the date of Substantial
Completion (the "Warranty Obligations"). Upon receipt of written notification, the Design Build Firm shall
remedy any defects in materials, equipment or workmanship or any other deficiencies occurring within the
warranty period.
11.2 UeflgiCLIgies. After discovery of any defects or deficiencies in the Project, the Design
Build Firm shall correct the same promptly after receipt of written notice from the Dodgers to do so. This
obligation shall survive Final Completion ofthe Project, If upon reasonable notice to the Design Build Firm.
the Desitin Build Firm fails to correct any defects or deficiencies as required by the Warranty Obligations
described in Section 11. 1, the Dodgers may at their expense pay for the correction and thereafter seek
reimbursement from the Design Build Firm for the costs incurred.
11.3 Warranties and Implied Warranties. The Design Build Firm will warrant to the County
and the Dodgers that materials and equipment furnished under it,, contract will be of good quality and new
un] essothe r%vise required or permitted by the Design Build Amcmentand the Construction Drawings, that
the Project will be free from defects not inherent in the quality required or permitted, and that the Project
will conform to the Design Build Agreement and the Construction Drawin us. Wort: not conforn-ung to these
requirements, including substitutions not properly approved and authorized. may be considered defective.
The Design Build Firm's warranty excludes remedy for damage or dcfect caused by abuse, authorized
modifications not executed by the Design Build Firm, improper or insufficient maintenance. unproper
opercrion, or normal wear and tear under normal usage. The Design Build Firm shall furnish satisfactory
evidence as to the kind and quality cf material and equipment.
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11.4 Ind+emnifieatim. Ifany claims for property damage orpersonal injury (including death
resulting therefrom) prising out of or occurring in connection with the work performed by the Design Build
Firm is made or asserted, the Dodgers agree to indemnify, defend and save harmless, the County, its
officers, agents, servants and employees from and against any and all such claims, and further from and
against any and all loss, cost expense, liability, damage or injury, including reasonable legal fees and
disbursements, that the County, its officers, agents, servants or employees may sustain, stiffer, or incur as
a result thereof and the Dodgers agree to and do hereby assume, on behalf of the County, its officers,
agents, servants, employees, the defense of any action at law or in equity which may be brought against the
County, its contractors (if any), its officers, agents, servants or employees, arising by reason of such claims
and to pay on behalf of the County, its officers, agents, servants and employees, upon demand of either of
them, the arnount of any judgment that may be entered against them, individually, jointly or severally, its
officers, agents, servants or employees in any such action, except that the Dodgers shall not have to
indemnify and hold harmless to the extent such claim, damage, loss and expense is the result of the
negligence or willful misconduct of the County, or anyone directly or indirectly employed by the County
or anyone for whose acts the County may be liable.
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ARTS.
PROJECT INSURANCE AND BONDS
12.1 j n s ura n . The Dodgers shall secure and retain, or shall cause to be secured and retained,
such policy or policies of insurance as are required by the Project Documents, including (i) coverage to
protect against a!1 claims arising, from Services performed hereunder, (ii) coverage to protect from actions
by a third party against the Dodgers as a result of this Agreement, and (iii) builders risk/casualty loss
coverage for the Project. The insurance required by this Section 12.1 shall be written for not less than any
limits of liability specified herein and in the Project Documents, or required by law, whichever is greater.
All insurance carriers must have an A. B. Best & Co. rating of at least "A". The insurance coverage
provided by Dodgers hereunder shall name the City of Vero Beach, Florida (the "City") and the County
(as their interests may appear) as additional insureds.
12.2 Amonno ond 13mes. During the performance of Services hereunder, the Dodgers shall
maintain insurance for the mutual protection and benefit of the Dodgers, the County and the City to cover
claims that may arise out of or result from ,Dodgers' Services hereunder, whether same be by the Dodgers
or a subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable..
Such insurance shall cover claims for damages insured by usual commercial general liability
coverage.
12.3 Cancellation. The County and the City will be given written notice thirty (30) days prior
to any cancellation of any insurance required to be maintained hereunder. The Dodgers shall be diligent
in replacing any canceled insurance and, subject to the next sentence hereof, shall replace such insurance
in a timely fashion to avoid any potentially uninsured liabilities of the type required to be covered by
insurance. In the event that any insurance described herein or anyponion thereof becomes commercially
unavailable andior at unreasonable rates, the Dodgers shall obtain such suitable replacement insurance as
may be commercially available and at reasonable rates, and the insurance coverage required by this
Agrccmcnt shall be modified accordingly.
12.4 Subcgntractor lmurance. The Dodgers shall require contractors to obtain maintain, and
keep to force insurance coverage in accordance with accepted industry standards during the time they are
engaged hereunder, with the Counry and the City named as an additional insured.
12.5 Bonds. The Dodgers shall assure that the Design Build Firm furnishes separate
performance and payment bonds in the amount of one hundred percent (100%) of the cost of construction,
naming the County as co -obligee. The bonds shall be executed by a corporate surety or corporate sureties
that are reasonably acceptable to the County, and duly authorized to do business in the State ofFlorida,
and executed on forms reasonably approved by the County. The Bond must comply with Florida Statutes,
Section 255.05. Ila surety upon any bond furnished in connection herewith becomes insolvent, or
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otherwise not authorized to do business in the State, the Dodgers shall prampdy replace the frond or famish
equivalent security reasonably acceptable to the County.
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ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES
13.1 Default b theDodeers, The following events shall be considered Events of Default by
the Dodgers:
(a) A material failure to keep, observe, perform, meet or comply with any covenant,
agreement. tern] or provision of this Agreement. or of any of the Project Documents, which are to be kept,
observed, met, performed or complied with by Dodgers, subject to Section 13.2.
(b) If the Dodgers shall (i) be unable to pay its debts as they come due; (ii) make a general
assignment for the benefit of creditors: (iii) suffer a decree or order appointing a receiver or trustee for it
or substantially all of its property to be entered and, if entered without its consent, not to be stayed or
discharged within 180 calendar days: (iv) suffer proceedings under any law relating to bankruptcy,
insolvency, or the reorganization of relief of debtors to be instituted by or against it and, if contested by it,
not to be dismissed or stayed within 180 calendar days; or (v) suffer any judgment, writ of attachment or
execution. or any similar process to be issued or levied against a substantial pan of its property which is
not released, stayed, bonded. or vacated within 180 calendar days after issue or levy.
13.2 o nly's Remedies. Upon an Event of Default by the Dodgers, the County, without
prejudice to its other rights and remedies hereunder, shall be entitled to terminate this Agreement for cause
and the procedure outlined in the performance bond for completion of the construction work shall be
followed: provided, however, that no default by the Dodgers shall constitute an Event of Default unless and
until:
a) The {County has given at least thim (30) dans' prior written notice thereof to the Dodgers
specifying that a default(s) has occurred that will, unless corrected, constitute a material breach and cause
Termination hereof: and
(b) The Dodgers either (i) have not corrected such default or have not initiated reasonable
steps to do so within said thirty (30) day period, or (ii) if such reasonable steps have been initiated within
such period. do not thereafter continue to take reasonable steps to correct such default within a reasonable
time penod.
(c) All contracts held by the Dodgers, contemplated by this Agreement. shaft be assignable to
the County at the County's option. Upon Termination or expiration of this Agreement, the County may
use all funds remaining in the Construction. Fund or Capital Reserve Account for completion.
13.3 Default Will: County. The following shall ccnsdrute an Event of Default by the County:
Failure by the County to observe and perform any covenant, condition, or agreement on its part
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to be observed or performed, or its failure or refusal to sub"day fulfill any of its obligations hereunder,
unless caused by the default of the Dodgers, which action continues for thirty (34) days after receipt of
written notice from the Dodgers specifying that a default has Occurred that wjH, unless corrected, constitute
a material breach hereof.
13,4 Dodge' Fternedits. Upon an Event of Default by the County, the Dodgers shall be
entitled to such legal or equitable relief as may be available.
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AR11CLE XIV
SPECIAL COVENANTS
14.1 $j b of Alf=. The Dodgers hereby agree that employees and agents of the County
and the City shall have the right to enter upon the Project during normal business hours, upon reasonable
prior written notice for inspections and other purposes; provided, however, that during the performance
of Services the procedures provided by the Dodgers must be satisfied in order for any persons who are
not engaged in the delivery of Services to be admitted to the Project.
14.2 Time of Essence. 'Gime is of the essence in the performance of this Agreement.
14.3 l onstructinn Drawings. The Dodgers shall maintain and require the Design Build Firm
to maintain at the site of the Project one copy of all record Construction Drawings, in good order and
marked to record all changes made during construction of the Project. On or before final Payment to the
Dodgers hereunder, one contract set of the record "as built" Construction Drawings shall be provided to
the County.
14.4 Damaeg to Property, The Dodgers 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 die premises of the Project, unless such damage is caused solely or partially by the
Dodgers' negligence or willful misconduct, in which case the Dodgers shall be liable for only the portion
so caused.
14„5 ConseqUtUfigLDamaW. Neither parry hereto shall be liable to the other party for
unforsecable consequential loss or damaee, and each parry hereby, to the extent allowed by law, releases
the other and such subcontractors, suppliers and vendors therefrom.
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ARITC E xv
MISCELLANEOUS
15.1 COtrnternarts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts. This Agreement may be executed and delivered by
any parry by facsimile transmission; provided, however, that any such party shall promptly deliver an
original signed copy of this Agreement.
15.2 HeadinyS. The headings used herein are for convenience of reference only and shall not
constitute a part hereof or affect the construction or interpretation hereof.
15.3 Severabi111y. If any clause, provision, or section hereof be 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 ifsuch illegal, invalid, or unenforceable clause, provision or section had not been
contained herein.
15.4 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.
15.5 Notices. All notices, certificates, requests, or other communications hereunder shall be
sufficiently given and shall be deemed given when hand delivered, or delivered prepaid to an overnight
courier service, addressed as follows:
If to the County: Indian River Count
1840 25'h Street
Vero Beach, Florida 32960
Attention: County Administrator
Phone: (561) 567-8000, Ext. 1408
Facsimile: (561) 978-1822
If to the Dodgers: Los Angeles Dodgers. Inc.
Dodgenown
P.O. Box 2887
Vero Beach, Florida 32961
Attention: Mr, Craig Callan
Phone: (561) 569-4900
Facsimile: (561) 770-2424
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Copy to: Los Angeles Dodgers, Inc.
1060 Elysian Park Avenue
Los Angeles, California 90012
Attention: Santiago Fernandez, Esq.
Senior Vice President & General Counsel
Phone: (323) 224-13I2
Facsimile: (323) 2244595
Each party may, by notice given under this Section, designate any further or different addresses to
which subsequent notices, bonds, requirements, or other communications shall be sent.
15.6 i1lundmenr This Agreement shalt not be amended except by written agreement executed
by the parties hereto.
15.7 governing Law. This Agreement shall be governed by the laws of the State of Florida.
15.8 Terminology AH personal pronouns used herein whether used in the masculine, feminine,
or neuter gender, shall include the singular.
15.9 Construction, This Agreement shall not be construed more strongly against the party who
drafted this Agreement.
32
a7s
AIR11CLE
ADDITIONAL AGREEMENTS
16.1 Additions reem=- The parties hereto recognize that additional agreements and
documents will be required to implement this Agreement, including but not limited to a Request for
Qualifications package for selection of the Design Build Firm.
16,2 Development Uddit nn it Avreements. Priorto the Effective Date, the parties hereto
will mutually develop any necessary additional agreements and documents, including as described above
and all such agreements and documents wilt be submitted to the Escrow Agent and incorporated herein.
33
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40
i
AR 1 CL.E XVII
CONSENTS AND APPROVALS
17.1 Qranfing or Failure to Grant ARprovals. All consents and approvals
which may be given 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 pan 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.
17.2 Standa rA. Unless this Agreement specifically provides for the granting of consent or
approval at a parry's sole discretion, then consents and approvals which may be given by a parry tinder
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.
17.3 Deemed Aurrroval. If a party entitled to grant or deny its consent or approval (the
"Consenting Party") within the specified time period shall fall 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 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
PRO%,`lDED IN THE DEVELOPMENT AGREENIEN'T BETXkT— EN INDIAN RIVER
COUNTS' AND LOS ANGELES DODGERS. INC. SHALL CONSTITUTE
AUTOMATIC APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH
RESPECT TO SECTION [FILL IN APPLICABLE SECTION] OF SUCH
DEVELOPMENT AGREEMENT."
17.4 Approvals for Court . The County hereby agrees than. subject to applicable laws and
rcuulations. the County Administrator for the County Administrator's authorized designee) shall be
authorized to grant consents or approvals on behalf of the Counts v. ith respect to this Agreement.
17.5 ro Fees, etc. Except as otherwise expressly stat forth in this Agreement, no fees or
charges of any kind or amount shall be required by either pam" hereto as a condition of Lite 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 lisrtit the County acting in its governmental, as district from its proprietary, capacity
from charging governmental fees on a nondiscriminatory basis).
34
c)77
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
by its duly authorized rgpresentatives as of the date first above written.
Approved as to Form and INDIAN RIVER COUNTY,
legal sufficiency a political subdivision of the State of
Florida
County Attorney
35
By:
Clerk
LOS ANGELES DODGED, INC.,
a Delaware corporation
0
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by its duly authorized representatives as of the date first above written.
Approved as to Form and.
legal sufficiency
34
INDIAN RIVER COUNTY,
a political subdivision of the State of
Florida
Its Cha i rman
r
Attest.
Cle J.K. BAF�riOF1''
LOS ANGELES DODGERS, INC.,
a Delaware corporation
By:
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Exhibit A
Legal Description of the Land
(PARCEL I )
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 SOUTH 89.04'56" WEST ALONG THE NORTH LINE OF SAID
SECTION 3, A DISTANCE OF 1998.33 FEET TO A POINT; THENCE SOUTH 03.30'11 " WEST,
A DISTANCE OF 30.09 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF
AIRPORT DRIVE (A/K/A 34TH AVENUE, 90 FOOT RIGHT-OF-WAY), SAID POINT BEING
THE POINT OF BEGINNING; THENCE CONTINUE ALONG SAID WESTERLY RIGHT-OF-
WAY LINE SOUTH 09.51'49" WEST, A DISTANCE OF 39.81 FEET TO THE POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF
1125.14 FEET AND A CENTRAL ANGLE OF 14.57'00"; THENCE ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 293.58 FEET TO THE POINT OF TANGENCY; THENCE SOUTH
19.21 '57" WEST, A DISTANCE OF 82.11 FEET TO THE POINT OF CURVA'T'URE. OF A CURVE
CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1825.86 FEET AND A CENTRAL
ANGLE OF 19.54'25"; THENCE ALONG THE ARC OF SAID CURVE A DISTANCE OF 634.34
FEET TO THE POINT OF TANGENCY: THENCE SOUTH 00.32'28" EAST, A DISTANCE OF
43.37 FEET TO A POINT ON THE NORTH RIGHT-OF-WAY OF INDIAN RIVER FARMS
DRAINAGE DISTRICT MAIN CANAL (300 FOOT RIGHT-OF-WAY); THENCE ALONG SAID
NORTHERLY RIGHT-OF-WAY LINE SOUTH 69.31'46" WEST, A DISTANCE OF 477.79 FEET
TO A POINT; THENCE NORTH I7.00'00" WEST, A DISTANCE OF 467,50 FEET TO A POINT;
THENCE NORTH 20.58'57" EAST, A DISTANCE OF 409.51 FEET TO A POINT; THENCE
NORTH 00.23'00" WEST, A DISTANCE OF 290.75 FEET TO A POINT; SAID POINT BEING
30 FEET SOUTHERLY OF THE NORTH LINE OF SECTION 3, TOWNSHIP 33 SOUTH, RANGE
39 EAST: THENCE NORTH 89.04'56" EAST ALONG A LINE BEING 30 FEET SOUTHERLY OF
AND PARALLEL WITH SAID SECTION LINE, A DISTANCE OF 623.56 FEET TO THE POINT
OF BEGINNING,
A-1
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•
LI
(PARCEL 2)
COMMENCING AT THE NORTHWEST CORNER OF TRACT 5, SECTION 3, TOWNSHIP 33
SOUTH, RANGE 39 EAST, AS SHOWN ON THE LAST GENERAL PLAT OF LANDS OF THE
INDIAN RIVER FARMS COMPANY, FILED IN THE OFFICE OF THE CLERK OF THE
CIRCUIT COURT OF ST. LUCIE COUNTY, FLORIDA, IN PLAT BOOK 2 AT PAGE 25, SAID
LANDS NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA" RUN EAST, A
DISTANCE OF 25 FEET TO THE POINT OF BEGINNING ON THE EAST LINE OF A 50 FEET
RIGHT-OF-WAY OF 43RD AVENUE; FROM SAID POINT OF BEGINNING RUN SOUTH
00.17'40" EAST ALONG THE AFORESAID EAST RIGHT-OF-WAY, A DISTANCE OF 765.95
FEET TO A POINT WHICH IS 50 FEET DISTANCE NORTHERLY FROM, AT RIGHT ANGLES
TO, THE NORTH RIGHT-OF-WAY OF THE MAIN CANAL OF THE INDIAN RIVER FARMS
DRAINAGE DISTRICT; THENCE RUN NORTH 69.02'20" EAST ON A LINE PARALLEL TO
AND 50 FEET FROM THE NORTH RIGHT-OF-WAY OF TIE MAIN CANAL. A DISTANCE OF
2813.63 FEET; THENCE RUN NORTH 16.55'40" WEST, A DISTANCE OF 421,18 FEET;
THENCE RUN NORTH 21.56'41}" EAST, A DISTANCE OF 410.00 FEET; THENCE RUN NORTH
00. 16'00" WEST, A DISTANCE OF 293.70 FEET TO A POINT WHICH IS 30.00 FEET SOUTH
OF THE TOWNSHIP LINE BETWEEN TOWNSHIP 33 SOUTH AND TOWNSHIP 32 SOUTH,
RANGE 39 EAST; THENCE RUN SOUTH 89.54'20" WEST ON A LINE WHICH IS 30 FEET
SOUTH OF AND PARALLEL TO THE AFOREMENTIONED TOWNSHIP LINE, A DISTANCE
OF 2656.10 FEET TO A POINT WHICH IS 25 FEET EAST OF THE WEST LINE OF TRACT 4
IN SAID SECTION 3; THENCE RUN SOUTH 00.17'40" EAST, A DISTANCE OF 1314.0 FEET
TO THE POINT OF BEGINNING.
LESS AND EXCEPT THE FOLLOWING:
A PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 33 SOUTH, RANGE 39 EAST.
INDIAN RIVER FARMS COMPANY SUBDIVISION. ACCORDING TO THE PLAT THEREOF,
AS RECORDED IN PLAT BOOK 2. PAGE 25, OF THE PUBLIC RECORDS OF ST. LUCIE (NOW
INDIAN RIVER) COUNTY, FLORIDA. SAID PARCEL DESCRIBED AS FOLLOWS:
BEGIN AT THE INTERSECTION OF THE EAST RIGHT-OF-WAY LIFE OF 43RD AVENUE {A
50 FOOT RIGHT-OF-WAY} AND THE SOUTH RIGHT-OF-WAY LINE OF INDIAN RIVER
FARMS WATER CONTROL DISTRICT CANAL A3, THENCE SOUTH 89.45'39" EAST, ALONG
SAID SOUTH RIGHT-OF-WAY LINE, A DISTANCE OF -30.78 FEET; THENCE SOUTH
00. 14''21" WEST, A DISTANCE OF 876.82 FEET; THENCE SOUTH 89.45'39" EAST, A
DISTANCE OF 414.56 FEET; THENCE SOUTH 63.53'04" EAST, A DISTANCE OF 476.06 FEET,
MORE OR LESS, TO A POINT ON THE WESTERLY LINE OF A 66 FOOT DRAINAGE.
EASEMENT AS RECORDED IN OFFICIAL RECORD BOOK 210. PAGE 531, OF THE PUBLIC
RECORDS OF INDIAN RIVER COUNTY, FLORIDA; THENCE SOUTI 118.5'26" EAST, ALONG
SAID WESTERLY LINE, A DISTANCE OF 386.46 FEET; THENCE SOUTH 69.2'53" WEST,
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ALONG ALM WHICH IS 50 FEET NORTH OF, AS MEASURED AT RIGHT ANGLES TO THE
NORTH RIGHT-OF-WAY LINE OF THE INDIAN RIVER FARMS WATER CONTROL
DISTRICT MAIN RELIEF CANAL, A DISTANCE OF 1806.38 FEET, TO A POINT ON THE
AFOREMENTIONED EAST RIGHT-OF-WAY LINE OF 43RD AVENUE; THENCE NORTH
00.0'47" EAST, ALONG SAID RIGHT-OF-WAY LINE, A DISTANCE OF 2094.26 FEET, TO THE
POINT OF BEGINNING.
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C:7
Exhibit B
Description of Improvements and Project Costs
B•3
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EXHIBIT B
Las Angeles Dodgers - Fero Re:ich. Florida
Opinion of Probable $asebaB Improvements Costs per
deGuardiols Conceptual Master Plan - July 13. 204U
Concept No. Z (Revised)
I I7TW I
---
7or League Operadons
f)7:A 'TITY +
U.P.
d
AMOUNT
' I FulI Fields - send baaea lmutim S1irt6e suo.suriMee Oramlift yy {
21 1 S
400.000 1 S
800.000
Iiialr Field - sand bastes. 1masu= vt 1 acG Puv-%uFfzcz 01wnacC
INew Outdoor Bamnc CaeeS 1
1 i £3
81 S
.150.000
7.,gOU
r S
S
150.00c,
b0.000
IOb5erVauon Towcr - Ressroams
lump Sum I
n+a
I S
130.000
I mstine Structtue Modificanow I
Lump Stun I
ora
I S
750.000
IGene,-Bl 5rleworx I
I i
Lwny Sum
I
n a
I S
I
"3s,00(r
I "Subtotal A.1
I
15
2.645.000
I " EScludes L4Gd Ac0U131600 COILt I
d
I
d — I I I
B.I Major League Operations R I
! 1 Full Fields fExrstlnu i - Imvrovements' Bud¢et I 21 $ 250.000 i s 500.000
I HalfField +'Existanw i -improvements' Budeer I 11 S 100.000_ I S 100.000
I [Covered Baturae Structure I Lump Sum I wa 15 400.000
tGenerai Snework I Lumr) sum I n/a I S 375,000
Subtotal Bd I S 1.375.000
h i I
I I '
IC.iHvIman Field
IRemace PlevLne Fick'
I Lumv Sum +
a a
I S
500.000
!Genera_ Sitmork
I ltunp Sum 1
a's
5
500.000
! Warmne Track Dralnaste improvements
I Luma Stern I
n,a
S
100.000
I,vt,s Jradji.= X. -Daus Lng. Press Box imnrovem uus
I Lumo 5:ir7; I
a•a
5
150,000
B ane Bxisnnf! Mainteneacc Btuldine
I ? ui:m : mi
n a
I S
100.000
iCiubnuuse Facdav Afvvnw::a.OWSF-,FvsjOOISF,
I_ Lump SUm I -_
�'a
I S
2,000.000
Subtotal Cl I 15 3.330.00fl
�..». � rn,rnM�,u Rrnlocrmenr rrrcllydrd rri FF � � Co�rlrn�rr+cr I I 1
I I �
a I I d
I I I
',SUBTOTALI I S 7,370.006
10% Soft Crusts plus 1041a Cununizenc%,i is 1.474.000
'+rQ'rAl I I S 8.844.(M
" ,c..icaudel LRod Acquir1r100 0040 - - —•• .� - - 1
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Exhibit C
FORM OF REQUISITION REQUEST
FOR IMPROVEMENT + COSTS
REQUISITION REQUEST NO.
LATE:
TOTAL DISBURSEMENT REQUESTED-,
REFERENCE. Development Agreement dated as of September I, 2000 (the "Development
Agreement"), between Los Angeles Dodgers, Inc. ("Dodgers"), and
Indian River County, Florida ("County")
The County Clerk is hereby requested to disburse from the Construction Fund established by 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 those items of the Improvements constructed or installed pursuant
to the Development Agreement.
1, The undersigned, on behalf of the Dodgers, hereby requests the County to direct and instruct the
County Clerk to pay the amounts in accordance with the invoices attached as Exhibit A, and certifies in
connection with such direction that:
t a 1 The Improvement described on Exhibit "A" hereto has been constructed or installed at the
Facility and the construction or installation of such Improvement has been completed on
or before the date hereof,
(b) The Dodgers have conducted such inspection and+or testing of the Improvement as they
deem necessary and appropriate, and have accepted the Improvement; and
t c 1 The Improvement described on Exhibit "A" hereto is covered against all risks pirrsuarit to
die policy of insurance required by the Facility Lease Agreement dated as of September
1, 2000 between the County and the Dodgers,
2. In the event that the Dodgers are to be reimbursed for invoices previously paid by the Dodgers for
such items, written evidence of such prior payment and the amount thereof is also attached to this
Requisition,
3. Attached hereto are the following (check each item attached), each of which is true and correct
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in all material respects:
{_ } A true copy of the applicable purchase order and, where applicable, a duplicate original
of any change order approved by the Dodgers increasing the costs of the hnprovements
in an amount in excess of the original price therefor,
(_) Bills of sale for any component of the Improvements for which a bill of sale maybe
delivered; and/or
(—) 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):
Amount:
Address:
Invoice No.:
S. To induce the County to approve this Requisition and authorize the County Clerk to disburse funds
held in the Construction Fund, the undersigned certifies that there are no outstanding construction liens
a¢ainst the Facility.
6, The following constitutes an itemized list of attachments to this certificate, if applicable:
(a) Contractor's Application for Payment (AIA Foams G702 and 0703).
(b) Architect's Certificate (AIA Forms G702 and G703).
C-2
EXECUTED this day of , 20 --
LOS ANGELES DODGERS, INC.
By:
(Authorized Signature)
Approved for payment:
INDIAN RIVER COUNTY, FLORIDA
By: _
County Administrator (or designee)
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