BASEBALL TRAINING FACILITY LEASE AGREEMENT
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BASEBALL TRAINING FACILITY
LEASE AGREEMENT
by and among
THE CITY OF CLEARWATER, FLORIDA
and
THE PHILLIES
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T ABLE OF CONTENTS
Section Page
1. Recitals, ............,.............................,............,......, 1
1.1 Club, . . . . . . . , . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . 1
1.2 Stadium Facilities. , . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Sprinl?: Training Facilities. . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Purpose , , , . . , . . . . . . . . . . . . . . . . . . , . , . . . . . . . . . . . . . . , . . . . . . . . . . 2
2. Definitions. . . . . . . . . . . . . , , . . . . . . , , . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . 2
2.1 "Affiliate" or "Affiliated ......,.....,......,........,......... 2
2.2 "Claim" . . , . . . . . . , . , . . . . . . . . . . . . , , . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 "Club" . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . 2
2.4 "Commencement Date" .,..................................... 2
2.5 "Consulting Enl?:ineer" ...................,.................... 2
2,6 "Default". . . . , , . . . . . . . . . . . . . . , . . . . . . . . . . , . . . . . . . . . . . . . . . . . . 2
2.7 "Defaulting Party" .............,..........,.,...........",..2
2.8 "Default Rate" ............,....,...................,........3
2,9 "Demised Premises" . . . . . . . . . , . . . . . . . . . . , . . . , . . . . . . . . . . . . . . . . . 3
2.10 "Disaster Staging Uses" .. . . . , . , , . . . . . . . . , . . . . . . . . . . . . . . . . , . . . . 3
2.11 "Environmental Laws" . . . . . . . . , . . . . . . . . . , . , . . . . . . . , . . . . . . . . . . . 3
2,12 "Existing Lease" . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.13 "Existing Stadium" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.14 "Expedited ADR" . . . . . . . . . . . . . . . . , . , . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.15 "Fields"...., . . . . . , . . . . . . . . , . . . . . . . . . . , . . . . . . . . . . . . . . . . , . . . , 3
2.16 "Force Majeure" . . . . . . , . , . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.17 "Grapefruit League" . . . . . . , . . . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.18 "Home Game" .............."....................,......... 4
2.19 "Improvements".. . . . . . , . . . . . . , . . . . . . . . . . . , . . . . . . . . . . . . . . . . , . 4
2.20 "Legal Requirements" ............,.........."............... 4
2.21 "MLB".. . . . , . . . . . . . . . . . . . . . . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . 4
2.22 "MLB Agreements" ...".................,.................. . 4
2.23 "Non-Defaulting Party" .........,.,.,....................,.... 5
2,24 "Person"..........,.................,...................... 5
2.25 "Phillies Users" .........".....,...........",.............. 5
2.26 "SFDA".... . . . . . . . . . . . . . . , . . . . . . . . . . . , . . . . . . . . . . . . . . . . , , . . 5
2.27 "Sports Facility" . . . , . . . . . . . , . . . . . . . . . , . . . . . . . . . ,. . . . . . . . . . . . . 5
2.28 "Sports Facility Manager" .......,.........."................, 5
2.29 "Term"....,..........,......... , . . . . . . . , . . . . . . . . . . . . . . . . . . 5
2.30 "Use Agreement" .."...,..................,......,........., 5
3. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.1 Existing Lease .............................................. 6
3.2 Initial Term. ................................................ 6
3.3 Options to Renew. ..."..............,........,.......,.,..., 6
3.4 Term. . . . . . . . , . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 7
4. Certain Covenants of the Parties. . . , . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . 7
4.1 Ownership of Sports Facility. ...,.,............,............... 7
4.2 Spring Training Commitment. . . . , . . . . . . . . . . . . , . . . . . . . , . . . . . . . . . 7
4,3 Environmental Laws Indemnity. ...,.....,..............,.......7
5. Use of Demised Premises. .......,........"........,.......,.,...........8
5.1 Phillies Use. ,...............................................8
5.2 Disaster Staging Uses. ..,........"........................... 9
6. Rent. . . . . . . . . . . . . . , , , . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Revenues. . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
7.1 Naming Rights. .,.,........,.................,..........,.. 10
8. Operation of the Training Facility, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1 Operating Staff. .....................................,...... 11
8.2 Utilities.. . . . . . . . . . . . . , . . . . . . . . . . . . . , . . . . . . . . . . . , . . . . . . . . . . 11
8.3 Security.. . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9. Maintenance and Repair of Sports Facility. . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9.1 Phillies and City Obligations. ................................. 11
9.2 Manager.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 12
9.3 Personnel. . . . . . . . . . , . . . . , . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.4 Consulting Engineer. ...............,.................,...... 13
9.4.1 Annual Recommendations. . . , . . . . , . . . . . . . . . . . . . . .13
9.4.2 Capital Expenditure Schedule. . . . . . . . . . . . . . . . . . . . . . 13
9.4.3 Costs of the Consulting Engineer. ........"......., 13
9.5 Action by The Phillies. . . . , . . . . . . . . . . . . . . . . . . , . . . . , . , . . . . . . . . . 13
9,6 Surrender. . . . . . . , , . . . . . . . . . . . . . . . . . . , . , . . . . . , . . . . . . . . . . . . . . 15
10. Alterations and Additions by The Phillies. ........".,.,..........,.......... 16
1 0.1 Minor Improvements. . . . . . , . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . 16
10.2 All Other Improvements. ..,...............,...,.............. 16
10.3 Ownership of Such Improvements. .,.,..................".,... 16
1 0.4 No Limitation. .......................,.,.....,..,.......... 17
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11. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11.1 Possessory Taxes. . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . , . , . . . . . , . 17
11.2 Tax Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . , . . . . , . . , . . . . 17
12. Insurance.. . . , . . . . . . . , . . . . . . . . , . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12.1 Liability Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . 18
12,1.1 Phillies Non-Property Coverage ....,.,............ 18
12.1.2 City's Non-Propertv Coverage. ..,.................18
12.2 Property Coverage. . , , . . , . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . 19
12.3 GeneraL. . , . . . , . . . . . , , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
12,4 Remedies.",...,....."....................,.............. 20
12,5 Waiver of Subrogation, ."...................................21
13. Indemnification. . . . . . . . . . . , , . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.1 By The Phillies. ..,.....,................................... 21
13.2 By the City. .......,.......................................22
13.3 Procedure for Indemnification -- Third Party Claims. . , . , . . . . . . . . . . .23
13.4 Procedure for Indemnification -- Other Claims. .,.,...,...........24
14. Damage or Destruction. . . . . , . , . . . . . . , . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . 25
14.1 Decision to Rebuild. . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . , , . . . . 25
14.2 Failure To Repair. ...........,..,......................,....25
14.3 Phillies Option to Rebuild or Repair. . . . . . . . . . . . . . . . . . . . . . . . , . . . .26
15. Condemnation. . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . , , . . . . . . . . . 26
15.1 Total Taking. ..............................................26
15.2 Partial Taking. ......................,.,....................26
15.3 Failure To Repair. ...".".................,....,...........27
15 A Phillies Option to Rebuild or Repair. . . . . . , . . . . . . . . . . . . . . . . . . . . . . 28
16. Assignment.. . . . , . . . . . , . , . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . .28
16,1 Assil?Jllllent by The Phillies. .,................................ 28
16.2 Assignment by the City. . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . .. . . . 29
17. Default. . . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
17.1 Default,.,. . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . , . . , . . . . . . . . . . 29
17.2 Non-Defaulting Party's Rights and Remedies, . , . . . . . . . . . . . . . .. . . . . 30
17.3 Cumulative Ri2:hts. .,....................................... 30
17.4 Iniunctive Relief, ,."....................................... 31
17.5 Emergency.". . , . , . , . . . . . . . . . . . . . . . . . . . . . . . , , . . , . . , . . . . . . . . 31
18. Legal Opinions . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . , , , . . . , . . . . . , . . . . . . . . . . , 32
18.1 By the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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18.2 By The Phillies . . . , . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
19. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . , . . . . . , . . . . . . , . . . 32
19.1 Estoppel Certificates. . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . , 32
19.2 Consents,. . . . . . . . . . . . . . . . . , . . . . , . . . . . . . . . . . , . . . . . . . . . . , . , . 33
19.3 Additional Instruments. ......................,..........,.... 33
19.4 Force Majeure. . . . . . . . . . . . . , . , . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
19.5 Notices...................,...,................,.......... 34
19.6 No Joint Venture. . . . . . . . . . . . . . . . . . . . . , , . . . . , . . . . . . . . . . . . . . . . 35
19.7 Governing Law. ....,..........................,......"....35
19.8 Construction of this Agreement. ...............................35
19.9 Binding Effect. . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . , . . . . . . . .35
19.10 Entire Agreement. .".........,.........................,... 36
19.11 Severability............,...........,..............,........ 36
19,12 Captions. .......................,........,........,.......36
19.13 Time of Essence. .........,.................................36
19.14 Interest on Delinquent Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 36
19.15 Waivers................................................... 37
19.16 Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , ,37
19.17 Right of Offset. ....,.,.....................................37
19,18 Attorneys' Fees. ...............................,............37
19.19 Amendment.,......,.,......,.............................. 37
19.20 Authority. . . . . . . . , . . . . , . . . . . . . . . . , . , . , . . . , . . . . . . . . . . . . . . . . , 37
19.21 Exhibits.................,.......".,......,.......,....... 3 7
19.22 Liability Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
19.23 Certain Disputes. ........,...........,....,........,........38
19.24 Inspection. ...,............,.............................. 38
19.25 Lawful Uses. .." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
19.26 Drainage Easements. ........................................38
19.27 Amendment of Use Agreement. ..............,................38
20. Sublease of Demised Premises to the City, . . . . . . . . . . . . . . . , . . . , , . . . . . . . . . . . . . . 38
20.1 Term.. . . . . . . . . . . . . . .. . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
20.2 Rent. ....,........,...................................... 39
20.3 Use. ..... . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
20A Bomber Stadium. ....."................................,..39
20.5 Maintenance and Repair. ...........,...,....................40
20.6 Revenue. ..............,..,.....,....,....,...,........... 40
EXHIBIT A
EXHIBIT B
EXHIBITS
Demised Premises and Drainage Easement
Expedited ADR
IV
BASEBALL TRAINING FACILITY LEASE AGREEMENT
THIS BASEBALL TRAINING FACILITY LEASE AGREEMENT (the "Agreement") is
made and entered into effective as of December 31, 2000, by and among THE CITY OF
CLEARWATER, FLORIDA, a municipal corporation (the "City") and THE PHILLIES, a
Pennsylvania limited partnership ("The Phillies").
1. Recitals.
Unless otherwise defined herein, capitalized terms used in this Section 1 shall have the
meaning ascribed to them in Section 2 of this Agreement
1.1 Club. The Phillies owns the Philadelphia franchise for a MLB club in the National
League of Professional Baseball Clubs.
1.2 Stadium Facilities. The Phillies currently plays its Home Games in the City in Jack
Russell Stadium (the "Existing Stadium"). The parties anticipate that, pursuant to the Agreement
for Development of Community Sports Complex between the City and The Phillies dated
~
~ J.::f-, 2001 (the "SFDA"), the Sports Facility defined in Section 2.27 will be created in the
City and, that following its completion, The Phillies will play Home Games in the Sports Facility
instead of at the Existing Stadium, as and to the extent provided in and under the terms and
conditions of the Sports Facility Use Agreement between the City and The Phillies dated as of
December 31,2000 (the "Use Agreement").
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1.3 Spring Training Facilities. Pursuant to the Lease Agreement relating to Carpenter
Complex between the City and The Phillies dated January 28, 1987 (the "Existing Lease"), The
Phillies use the premises described in Exhibit A hereto (the "Demised Premises") as its spring
training site, other than for Home Games and other activities conducted at the Existing Stadium.
1.4 Purpose. The purpose of this Agreement is to provide the terms and conditions for
The Phillies' use and occupancy of, and ofthe parties' respective rights and obligations in respect to,
the Demised Premises from and after the Commencement Date.
2. Definitions.
The following terms shall have the meanings ascribed to them as follows:
2.1 "Affiliate" or "Affiliated" of any Person (the "Subject Person") means any other
Person who (i) controls, is directly or indirectly controlled by, or is under common control with, the
Subject Person; or (ii) is a general partner, officer or director ofthe Subject Person or of any Person
described in clause (i) above.
2.2 "Claim" shall have the meaning set forth in Section 13.3,
2.3 "Club" means the MLB franchise owned by The Phillies, or successors thereto.
2.4 "Commencement Date" means the later of January 1, 2003 or of the date specified
in the Completion Certificate (as defined in the SFDA).
2.5 "Consulting Engineer" means a qualified consulting engineer mutually selected and
equally paid by the parties, as provided in Section 9,2 hereof
2.6 "Default" shall have the meaning set forth in Section 17.1.
2.7 "Defaulting Party" shall have the meaning set forth in Section 17.1.
2
2.8 "Default Rate" means an annual rate of interest equal to the prime rate of interest
charged from time to time by Citibank (or some other bank agreed upon by the parties) plus one and
one-half percent but in no event greater than the amount permitted by Chapter 218, Part VII, Florida
Statutes. As used in the preceding sentence, the "prime rate of interest charged from time to time
by Citibank" shall mean the rate of interest announced from time to time by Citibank for loans to its
commercial customers with the highest credit rating.
2.9 "Demised Premises" shall have the meaning set forth in Section 1.3.
2.10 "Disaster Staging Uses" shall have the meaning set forth in Section 5.5,
2.11 "Environmental Laws" means any and all currently existing or subsequently enacted
or effective federal, state, and local laws, statutes, codes, rules, regulations, ordinances, orders,
standards, permits, licenses and requirements (including, but not limited to, consent decrees, judicial
decisions and administrative orders) and any amendments, implementing regulations and
reauthorizations thereto in effect during the Term regulating, dealing wi th, pertaining to or imposing
liability or standards of conduct concerning the use, exposure, generation, manufacture,
transportation, treatment, storage, disposal, emission, release, discharge, remediation or abatement
of hazardous substances, or the preservation, conservation or regulation of the environment.
2.12 "Existing Lease" shall have the meaning set forth in Section 1.3.
2.13 "Existing Stadium" shall have the meaning set forth in Section 1.2.
2.14 "Expedited ADR" means the Expedited Alternative Dispute Resolution procedures
attached to this Agreement as Exhibit A.
2.15 "Fields" means collectively the baseball playing fields within the Demised Premises.
2.16 "Force Maieure" shall have the meaning set forth in Section 19.4.
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2.17 "Grapefruit League" means the collection of MLB clubs that conduct their spring
training operations in the State of Florida and who play exhibition games among each other during
the Spring Training Season, which collection is commonly known and referred to as the Grapefruit
League.
2.18 "Home Game" means every regularly scheduled Grapefruit League exhibition game
to be played between the Club and a MLB team during the spring training season of each year during
the Term (exclusive of so-called "B games"), including split-squad games, as to which the Club is
designated as the home team, (For this purpose, the term "B game" shall mean the one game of two ,
that are played by The Phillies on the same day for which no admission is charged and which may
be played either at the Stadium or at another location, such as the Carpenter Complex.
2.19 "Improvements" means the improvements to real property now or hereafter located
on the Demised Premises.
2.20 "Legal Requirements" means all federal, state, county, municipal and other
governmental laws (including applicable constitutions), ordinances, codes, rules, regulations, statutes
and orders (including court and administrative agency orders), all covenants and restrictions of
record and the requirements of all fire insurance underwriters or rating bureaus, applicable to the
Sports Facility.
2.21 "MLB" means Major League Baseball or any successor or substitute association or
other entity which engages in professional baseball competition comparable to Major League
Baseball, of which The Phillies is or becomes a member.
2.22 "MLB Agreements" means the following governing documents and agreements, as
they may be amended from time to time: the Major League Constitution, the Major League Rules,
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the Major League Agreement, the Major League Central Fund Agreement, the collective bargaining
agreement between the MLB and the MLB Players Association, the directives, rules and bulletins
from the National League of Professional Baseball Clubs and/or the Office ofthe Commissioner of
MLB and the Professional Baseball Leagues Agreement and any future MLB instruments or
requirements which may govern The Phillies and/or with respect to which The Phillies is required
to comply.
2.23 "Non-Defaulting Party" shall have the meaning set forth in Section 17.1.
2.24 "Person" means any individual, trust, estate, partnership, joint venture, company,
corporation, association, limited liability company, governmental authority or entity or any other
legal entity or business or investment enterprise.
2.25 "Phillies Users" shall have the meaning set forth in Section 5.
2.26 "SFDA" shall have the meaning set forth in Section 1.02.
2.27 "Sports Facility" means the sports facility, including without limitation the baseball
stadium building where Home Games are to be played by The Phillies, as contemplated by the Use
Agreement, including (in addition to the baseball stadium building itself) the public parking lots
adjacent to the stadium building, and all landscaped areas and other improvements to real property
related to the stadium building, all as more fully described in the Use Agreement.
2.28 "Sports Facility Manager" shall mean the City's Park & Recreation Director or his or
her designee.
2.29 "Term" shall have the meaning set forth in Section 3.1.
2.30 "Use Agreement" shall have the meaning set forth in Section 1.2.
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3, Term.
3.1 Existing Lease. Notwithstanding the execution, delivery and effectiveness of this
Agreement as of December 31, 2000, the Existing Lease shall, until the Commencement Date,
continue in full force and effect under all of its terms and conditions and unamended hereby in all
respects except as provided in the next following sentence. Section A.1. of the Existing Lease is
hereby amended to extend the term thereof from January 1, 2001 to the sooner to occur of: (a) the
Commencement Date; or (b) the later of any earlier termination of (i) the Use Agreement and/or (ii)
the Lease between the City and The Phillies relating to Jack Russell Stadium; and the term of the
Existing Lease shall terminate, without further act or deed and as if the earlier ofthe dates referred
to in clause (b) had been expressly fixed in the Existing Lease, as the last day of the term thereof.
3.2 Initial Term. The initial term of this Agreement shall commence on the day that the
term of the Existing Lease (as extended pursuant to Section 3.1) ends and shall end on December
31 of the year in which occurs The Phillies' twentieth full Spring Training Season at the Sports
Facility.
3.3 Options to Renew. Subj ect to Section 3.4 and provided that The Phillies concurrently
exercises its parallel rights under Section 3.3 of the Use Agreement, The Phillies shall have, and the
City hereby grants to The Phillies, the option of renewing this Agreement and of extending the initial
term for an additional five-year period, on the same terms as are set forth in this Agreement, except
as otherwise provided in Section 6. That option shall be exercisable by The Phillies by written notice
to the City not less than one year prior to the then scheduled expiration of the Term; provided that
the option may not be exercised at a time when The Phillies are in Default hereunder. lfThe Phillies
duly exercise that option and if the parties hereto shall thereafter so agree, this Agreement may be
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extended for three additional five-year periods, on such terms as may be contained in such future
agreements to extend.
3.4 Term. The term ofthis Agreement (the "Term") shall mean the initial term specified
in section 3.2, as such initial term may be renewed pursuant to Section 3.3 or sooner terminated as
specifically provided for in this Agreement, provided, however, that in any event the Term shall,
without further act or deed, end on the date that the Use Agreement may sooner terminate (whether
by expiration of the term thereof or any sooner termination of the Use Agreement).
4. Certain Covenants of the Parties.
4.1 Ownership of Sports Facilitv, The City covenants and agrees that, at all times during
the Term, the Demised Premises will be owned by the City, with complete and sufficient right to
make use ofthe Demised Premises available to The Phillies on the terms and with the rights herein
provided. This Agreement does not create or grant any real property interest or similar right, title
or interest in the Demised Premises to The Phillies or any of its Affiliates, other than the leasehold
interest herein created.
4.2 Spring Training Commitment. Subj ect to Force Majeure and the requirements of any
MLB Agreements and so long as the City is not in Default, The Phillies covenants and agrees that
it shall, during the Term, utilize the Demised Premises as its MLB and Minor League spring training
site, other than for Home Games and training activities at the Sports Complex.
4.3 Environmental Laws Indemnity, The City covenants and agrees to indemnify, defend
and hold harmless The Phillies from any liabilities arising under the Environmental Laws from the
use of the Demised Premises by Phillies Users as contemplated by this Agreement, except to the
extent such liabilities may be caused by the wrongful or negligent act of a Phillies User.
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5 , Use of Demised Premises. The exclusive right to use the Demised Premises shall throughout
the Term be vested solely in The Phillies and its Affiliates and its and their partners, officers,
employees, licensees, franchisees, independent contractors and permittees ("Phillies Users"), subject
only to the limitations and exceptions hereinafter in this Section specifically set forth and as provided
in Section 20 hereof.
5.1 Phillies Use. The Phillies Users may use the Demised Premises only for the
following purposes:
5.1.1 For MLB spnng training season and extended spnng training season
operations, including without limitation training and player development activities and playing Home
Games, so-called "B games" and intra-squad games.
5 .1.2 F or Minor League and extended spring training season operations, including
without limitation playing home games and intra-squad games and training and player development
activities.
5.1.3 For Minor League regular season operations, including without limitation
playing Florida State League and Gulf Coast League home games and intra-squad games and training
and player development activities, and any Minor League playoff and championship games and
Minor League all-star games.
5.1.4 For Florida Instructional League operations, including without limitation
home games and intra-squad games and training and player development activities.
5.1.5 For MLB and Minor League "mini-camp" operations, including without
limitation intra-squad games and training and player development activities,
5.1.6 For baseball fantasy camp, youth camp, youth instructional and like activities.
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5.1.7 For parking and concession operations related to events and activities both
at the Demised Premises and at the Sports Facility and to use of the Demised Premises.
5.1.8 During the period when the Sports Facility is under construction, for
construction staging and storage purposes that shall not interfere with the foregoing uses, subject to
Club's obligation to restore any damage to the Demised Premises from such use.
5,19 For any other lawful purpose directly or indirectly related to any of the
foregoing uses.
5.2 Disaster Staging Uses. The City may, in each instance of actual or imminently
threatened natural disaster, use the Demised Premises as a staging area for disaster preparations,
response or other related uses ("Disaster Staging Uses"), provided that (i) there will not be any cost
to The Phillies and (ii) the City will immediately restore any resulting damage to the playing fields
or any other element ofthe Demised Premises caused as a result ofthe Disaster Staging Use. (Any
loss caused by the natural disaster, as opposed to the City's Disaster Staging Use, is governed by
Section 14 hereof.) The City shall not be responsible to The Phillies for any loss of revenue or
consequential damages resulting from Disaster Staging Uses, except any attributable to its failure
to duly effect any such restoration and restore full use of the Sports Facility to ThePhillies
immediately following the end of the disaster.
6. Rent. From and after the Commencement Date, The Phillies shall pay rent to the City at the
following fixed rates per calendar year: (a) $204,000 during the Initial Term; and (b) $1 during any
renewal term pursuant to Section 3.3, The rent for each calendar year during the Term and any
renewal term shall be payable by July 31 5t thereof.
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7. Revenues. Subject to Section 20.6, The Phillies alone shall be entitled to retain all revenues
generated on and from their use of the Demised Premises during the Term from all sources
whatsoever, including byway of illustration but not limitation, all ticket, food and beverage, signage,
merchandise, broadcasting, sponsorship and parking revenues and all revenues from the operation
of fantasy and youth camps, provided that any net concession or parking revenues associated with
Civic Events and Partnership Events (as those terms are defined in the Use Agreement) shall be
subject to the revenue sharing provisions of the Use Agreement.
7.1 Naming Rights. The City hereby grants to The Phillies the power and authority from
time to time during the Term to assign or license to a third party the right to name (i) all (e.g., "ABC
Training Facility") or (ii) portions (e.g., "DEF Bullpen" or "GHI Pavilion") ofthe Training Facility.
However, in no event shall The Phillies have the right to rename the softball facility known as
"Bomber Stadium." The net proceeds from the naming shall be shared as follows: one-half to The
Phillies and one-half to the City. The term "net proceeds" for this purpose means the gross proceeds
from the assigning or licensing of such naming rights less any direct costs associated with conducting
the naming process and, in cases where any additional benefits (e.g., suite usage, tickets, stadium
signage, advertising, etc.) may be included as part of the naming rights package and not separately
priced, then the fair market value of such additional benefits shall also be deducted. However, in
any event, the name "Carpenter" must continue to be used for some portion ofthe Complex or some
facility within the Complex. In addition, the City shall have the right to disapprove any name only
if, in the City's reasonable judgment, such name is inconsistent with a wholesome public image for
the Training Facility.
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8. Operation of the Training Facility. Subject to Sections 5.2 and 20, The Phillies shall have
the sole right and obligation to operate the Demised Premises during the Term (which it shall do in
a first-class manner and in compliance with all applicable Legal Requirements), including without
limitation the right and obligation to perform any ticket taking, food and beverage, merchandising,
parking and broadcasting operations.
8.1 Operating Staff. The Phillies shall employ or retain all Persons necessary to
discharge its operating responsibilities and shall bear the expense of their compensation.
8.2 Utilities. All electric, gas, water, sanitary sewer, storm sewer and trash disposal
service provided to and used at the Demised Premises during the Term will be contracted for and
either paid by the City or shall be provided by the City.
8.3 Securitv. The City shall provide adequate police protection and patrol in the area of
the Demised Premises.
9. Maintenance and Repair of Sports Facility. The following provlSlons govern the
maintenance and repair of the Sports Facility,
9.1 Phillies and City Obligations. The Phillies agrees during its period of use to maintain
the clubhouse and the weight training facility on the Demised Premises in a clean and orderly
condition, provided that the City will at its expense supply one janitor to assist in the cleaning of the
clubhouse. Otherwise, the City shall keep the Demised Premises, including without limitation the
clubhouse and the weight training facility, parking lot, playing fields, practice fields, bleacher seats,
and fences and all other buildings, structures and improvements thereon erected in good order and
condition and shall perform all necessary maintenance, repair and restoration thereof, ordinary and
extraordinary, structural and non-structural, excepting only as provided in the penultimate sentence
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of this Section 9.1, and in compliance with all applicable Legal Requirements and in first class
condition and up to first class MLB spring training facilities standards at the time of reference,
provided however, that (subject to Sections 14 and 15 hereof) this obligation shall not operate to
require the City to substantially reconstruct the Demised Premises during the Term hereof.
Specifically, but without limiting the generality ofthe preceding sentence, the City shall continuously
maintain the four playing fields and the practice field in a condition suitable for playing Major
League baseball and in that connection shall provide at least three employees to perform playing field
maintenance during periods of use by The Phillies. The Phillies shall: (a) provide one
groundskeeper, at its expense; and (b) bear the cost of any repair or restoration to the extent that it
may be caused by the fault or negligence of The Phillies, its players, agents, employees or invitees
(ordinary wear and tear excepted) but only if and only to the extent that the cost thereof may exceed
related insurance proceeds. In the performance oftheir respective obligations under this Section 9.1,
the City and The Phillies shall comply with all applicable health and safety code requirements. This
section 9.1 shall not be construed to require the City to reconstruct new facilities.
9.2 Manager. The Sports Facility Manager shall be responsible for the day-to-day
oversight of the maintenance, repair and condition of the Demised Premises, and shall be the
representative ofthe City with whom The Phillies may communicate. The Sports Facility Manager
shall have authority to bind the City to the fullest extent permitted by law, provided, however, that
the Sports Facility Manager shall not have the legal authority to bind the City to financial obligations
without the prior approval of the City's governing body.
9.3 Personnel. The City shall provide qualified and properly trained personnel to perform
its obligations under Section 9.1,
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9.4 Consulting Engineer. The following provisions relate to the Consulting Engineer:
9.4.1 Annual Recommendations. The Consulting Engineer shall annually determine
which capital repairs, restorations, refurbishments and replacements are needed to be done currently
and which capital repairs, restorations, refurbishments and replacements shall be scheduled to be
done in the future, and when. The Consulting Engineer shall, by November 1 of each calendar year
during the Term, submit to the parties his recommendation as to what capital repairs, refurbishments,
restorations and replacements are to be done currently and schedule those to be done in the future,
which are necessary, in the judgment of the Consulting Engineer, in order for the City to fulfill its
obligations under this Section 9.
9.4.2 Capital Expenditure Schedule. On December 1 of each calendar year during
the Term the City shall furnish to The Phillies a capital expenditure schedule prepared by the City,
with due regard to such recommendations, setting forth in detail the projected capital repairs and
improvements expenditures scheduled for the following calendar year and shall appropriately budget
any amounts necessary to do so. The Phillies shall be afforded the right to have input in the
preparation of such schedule and it shall be subject to The Phillies' approval, which shall not be
unreasonably withheld.
9.4.3 Costs ofthe Consulting Engineer. The costs ofthe Consulting Engineer shall
be borne equally by The Phillies and the City, The determinations ofthe Consulting Engineer shall
be conclusive on both the City and The Phillies.
9.5 Action by The Phillies. Without limiting The Phillies' rights under Section 17, if The
Phillies in good faith determines that any portion of the Demised Premises (including without
limitation the playing fields) is not being maintained and/or repaired by the City in accordance with
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the standards and requirements set forth in Section 9.1, The Phillies shall have the right, but not the
obligation, to advance funds for or otherwise provide appropriate maintenance and/or repair, subject
to the following provisions:
9.5.1 Notice Practicab Ie. If practicable, The Phillies shall give wri tten notice to the
City specifying the nature of the required work, and the date by which The Phillies reasonably
considers it necessary to commence such work following its receipt of such a notice:
(i) The City may commence such work prior to the date and time so
specified by The Phillies and prosecute the same diligently to completion; ifthe City does so, The
Phillies shall not undertake such work itself
(ii) If the City disputes whether the requested work required to fulfill the
City's obligations under this Agreement, the City shall so inform The Phillies in writing prior to the
date and time specified by The Phillies in its notice. Ifthe City gives timely notice, the dispute shall
be submitted to Expedited ADR prior to the date and time specified by The Phillies in its notice.
(iii) If(a) the City does not commence such work prior to the date and time
specified by The Phillies and prosecute the same diligently to completion, or (b) the City fails to
give timely notice of a dispute, or (c) it is not practicable to submit the matter to Expedited ADR
prior to the date and time specified by The Phillies in its notice, then in any such event, The Phillies
may commence the work necessary to remedy the matter on an emergency basis and prosecute the
same diligently to completion.
9.5.2 Emergency. If The Phillies in good faith determines that the work must be
performed on an emergency basis (that is, it must be performed in order to prevent an imminent
danger to health or safety or it is otherwise not practicable to give notice provided in this Section
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9.7), then The Phillies may commence work to remedy the matter on an emergency basis and
prosecute the same diligently to completion.
9.5.3 Payment to The Phillies. The City shall promptly reimburse The Phillies on
demand for any amounts expended pursuant to this Section 9.5 (including interest at the Default Rate
from the date that is 30 days after the date of demand until paid if such amount is not paid by the 45th
day following the date of demand). Ifthe City disputes that the work was required to fulfill the City's
obligations hereunder, Expedited ADR shall be convened to resolve the dispute.
(i) If and to the extent it is determined by Expedited ADR that work was
not required to fulfill the City's obligations hereunder, then The Phillies shall not be entitled to any
reimbursement for any sums expended by The Phillies.
(ii) If and to the extent it is determined by Expedited ADR that the work
was required to fulfill the City's obligations hereunder, then the City shall immediately reimburse
The Phillies for all sums expended by The Phillies on the work, plus interest at the Default Rate.
9.6 Surrender. At the termination ofthis Agreement, by lapse oftime or otherwise, The
Phillies shall surrender possession of the Demised Premises to the City and deliver all keys or such
other access equipment or devices. In addition, The Phillies shall remove The Phillies' furniture,
trade fixtures and other items of movable personal property of every kind and description from the
Demised Premises and restore any damage caused thereby, such removal and restoration to be
performed prior to the end ofthe Term or within sixty days following any earlier termination ofthis
Agreement If The Phillies fail to remove any such items, the City may do so, and The Phillies shall
pay to the City upon demand the cost of removal and of restoring the Demised Premises. All
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obligations of The Phillies under this Section 9.6 shall survive the expiration ofthe Term or sooner
termination of this Agreement
10. Alterations and Additions by The Phillies.
10.1 Minor Improvements. The Phillies shall have the right (following reasonable notice
thereof to the City for its information only), but not the obligation, to make minor improvements to
the Demised Premises without the City's approval, consisting of any work, installation, construction
or the like which does not require a permit from any federal, state or local governmental agency (e.g.,
installation of additional shelving).
lO.2 All Other Improvements. Except for the "minor improvements" described in Section
10,1, The Phillies shall not construct any improvements on or otherwise alter, change or improve any
part ofthe Demised Premises, without the prior written consent ofthe Sports Facility Manager, upon
such terms and conditions as he may reasonably deem necessary, Requests by The Phillies to
construct any such improvements on or otherwise to alter, change or improve any part of the
Demised Premises shall be presented to the Sports Facility Manager in written form and he shall act
thereon within a reasonably prompt time, If the Sports Facility Manager gives his consent to The
Phillies' undertaking such work (which consent shall not be umeasonably withheld), the consent
shall be deemed conditioned upon The Phillies' acquiring any necessary permit to do so from
applicable governmental agencies, furnishing a copy thereofto the Sports Facility Manager prior to
the commencement of the work and complying with all conditions of said permit in a prompt and
expeditious manner.
10.3 Ownership of Such Improvements. All improvements, alterations or other changes
made by The Phillies to any part ofthe Demised Premises pursuant to this Agreement, other than that
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which is so affixed to the Demised Premises that it cannot be removed without material damage to
it, shall remain the personal property or equipment of The Phillies and may be removed by The
Phillies upon expiration or termination of this Agreement provided that The Phillies restore and
repair any damage caused by the removal.
10.4 No Limitation. Nothing in this Section 10 shall in any way limit or reduce the
obligation of the City to maintain the Sports Facility as provided in Section 9 and elsewhere in this
Agreement.
11. Taxes.
11.1 Possessory Taxes. It is the intent ofthe parties that the Demised Premises (land and
hnprovements) shall be exempt from any and all real property ad valorem taxes and from payments
in lieu of such taxes throughout the Term. However, should all or any part or parts of the Demised
Premises become subject to any such taxes, then the parties shall each cooperate and use their
respective best efforts (i) to cause Pinellas County to return its share of any such taxes and (ii) to
secure legislation exempting the Demised Premises from such taxes. In the interim, The Phillies and
the City shall each pay one-half of any such taxes, net of any City ad valorem real property taxes,
which shall be paid by the City.
11.2 Tax Protection. The City shall throughout the Term hold The Phillies harmless from
all other local (as opposed to Federal, State or County) taxes (except for income, sales and like taxes
of general application), including without limitation amusement/ticket taxes, any increase in the sales
tax rate applicable to tickets, use and occupancy taxes and surcharges on the Demised Premises or
Demised Premises-derived revenues.
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12. Insurance.
12.1 Liability Insurance.
12.1.1 Phillies Non-Property Coverage. The Phillies shall maintain at its expense
during the Term of this Agreement the following insurance:
(i) Commercial general liability (including athletic participants coverage)
against claims for bodily injury, personal injury and property damage based upon, involving or
arising out ofthe use ofthe Demised Premises and all areas appurtenant to it. Such insurance shall
be on an occurrence basis, providing coverage in an amount not less than $5,000,000 per occurrence,
and not less than $5,000,000 general aggregate (per location), and not less than $5,000,000 coverage
for products and completed operations liability, and not less than $5,000,000 coverage for personal
and advertising injury, with deductibles of up to $100,000 per person and $200;000 per occurrence..
(ii) Statutory workers' compensation and employers' liability coverage in
an amount no less than $500,000 bodily injury each accident, $500,000 bodily injury by disease each
employee and $500,000 bodily injury by disease policy limit.
(iii) Automobile liability for bodily injury and property damage arising
from the use of The Phillies' owned, non-owned and hired vehicles, in an amount not less than
$5,000,000 per accident.
(iv) Garagekeepers legal liability coverage in the amount of $1 ,000,000.
12.1.2 City's Non-Propertv Coverage, The City shall maintain at its expense during
the Term of this Agreement the following non-property insurance:
(i) Auto Liability and General Liability: Self-Insured Level: $100,000 per
PersonJ$200,000 per Occurrence self-insured retention with the statutory limits per Section 768.28
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Florida Statutes. Excess Insurance: $5,000,000 per occurrence excess insurance (no aggregate
applicable) with self-insured retention of $500,000.
(ii) Workers' Compensation: Statutory workers compensation coverage
per occurrence with self-insured retention of $500,000.
12.2 Property Coverage. The City shall maintain at its expense during the Term of this
Agreement the following property related insurance:
12.2.1 Property insurance for 100% of full replacement value of the Demised
Premises (including all improvements and personal property), with deductibles .not exceeding
$50,000 per occurrence against loss by so-called "all risk" perils, including but not limited to fire,
extended coverage, storm (including without limitation wind, flood and hurricane coverage), boiler
and machinery, vandalism, malicious mischief, flood and earthquake. Such insurance is to contain
a replacement cost endorsement, and endorsements eliminating any and all coinsurance provisions.
12.2.2 For any work of construction conducted on the Demised Premises by or at the
direction of the City, builder's risk insurance with the same limits and coverages as set forth in
Subsection 12.2.1, provided that at the City's election, such insurance may be maintained by the
contractor(s) performing the construction work at the Demised Premises.
12.2.3 City Property Self-Insurance or Self-Funding. Any prOVlSlon of this
Agreement to the contrary notwithstanding, while the City shall maintain insurance coverage and
limits as provided for in this Agreement, parties hereto specifically agree that the City may do so by
self-insurance and/or by purchase at the sole option ofthe City. To the extent required by the terms
of this Agreement, insurance coverage and limits shall be evidenced by delivery to The Phillies of
letters of self-insurance or self-funding executed by the City's Risk Manager, or by certificates of
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insurance executed by either the agent for the insurers or the insurers or by copies of policy
declaration pages. Such letters, certificates, and policy declaration pages shall list coverage
(including the amount of insurance per claim and per occurrence, any gap in coverage, and the
amount ofthe excess insurance) and policy limits with expiration dates and major policy terms and
endorsements.
12.3 General. All insurance policies obtained pursuant to this Section 12 shall: (i) be with
companies legally authorized to do business in the State of Florida and which possess a minimum
rating of A- or better and a minimum class VIII financial size category (as listed at the time of
issuance by A.M. Best Insurance Reports), which are reasonably acceptable to the other parties; and
(ii) shall name as an additional insured each other party and such Affiliates of that party as it shall
reasonably request. Upon commencement of the Term, each party shall furnish or cause to be
fumished to the other party a certificate of insurance evidencing all such insurance policies.
Renewal certificates shall be delivered by each party to the others at least ten days prior to the
expiration of any policy of insurance. No such policy shall be cancelable or subject to reduction of
coverage except after thirty days' prior written notice to all parties hereto.
12.4 Remedies. If any party fails to obtain, keep in force or provide evidence of any oft he
insurance policies or self-insurance coverage required by this Section 12, the other party may give
written notice to the defaulting party, and the defaulting party shall have until the earlier of (i) five
days after its receipt of such notice, or (ii) regardless of whether notice shall have been given, one
day before the date the required insurance will lapse, to cure the default. If the default is not cured
within such period, then the other parties shall have the remedies set forth in Section 17.
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12.5 Waiver of Subrogation. Each party hereby releases and relieves the other party, and
waives its entire right of recovery against the other party, for direct or consequential loss or damage
arising out of an incident to the perils covered by any insurance carried by the other party or which
would have been carried had such other parties fulfilled their obligations hereunder to carry
insurance, whether or not due to the negligence of the released party or its agents, employees,
contractors or invitees. Ifnecessary, all property insurance policies required by this Agreement shall
be endorsed to so provide.
13. Indemnification. The indemnifications provided for in this Section 13 shall relate only to the
extent that the liability in question has not produced insurance proceeds to the indemnitee.
13.1 By The Phillies. Subject to Section 12.5, The Phillies agrees to and will at all times
defend, indemnify, save and hold the City and their Affiliates, and their respective elected officials,
officers, agents, employees, successors and assigns hannless, on a current basis, for, from and against
any and all damages, liabilities, claims, demands, expenses and costs of every kind and nature,
including reasonable attorney's fees, costs of investigation and discovery, and all court costs, arising
out of:
13.1.1 Injury to or death of persons (including personnel or employees of the City
or The Phillies), and damage to any and all property, including loss of use thereof, resulting from or
in any manner arising out of any willful and wanton or grossly negligent act or omission of The
Phillies or any Affiliate of The Phillies or any of their respective agents, officers or employees, in
connection with the operation or use of the Demised Premises.
13.2.2 Any breach or default in the performance of any obligation on The Phillies'
part to be performed under the terms of this Agreement.
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The foregoing indemnification obligations of The Phillies shall not extend to liabilities
caused, in whole or in part, by any willful, wanton, or grossly negligent act or omission of the City
or any of its agents, officers or employees to the extent such act or omission caused the liability and
shall survive the termination of this Agreement for all acts committed or omissions made prior to
the effective date of the termination of this Agreement.
13.2 By the City. Subject to Section 12.5, the City, to the extent permitted by applicable
law, including, but not limited to Section 768.28, Florida Statutes, agrees to and will at all times
defend, indemnify save and hold The Phillies and its Affiliates and their respective employees,
agents, officers, directors, shareholders, partners, successors and assigns, harmless, on a current
basis, for, from and against any and all damages, liabilities, claims, demands, expenses and costs of
every kind and nature, including reasonable attorneys' fees, costs of investigation and discovery, and
all court costs, arising out of:
13.2.1 Injury to or death of persons (including personnel or employees of the City
or The Phillies), and damage to any and all property, including loss of use thereof, resulting from or
in any manner arising out of or in connection with any willful, wanton or grossly negligent act or
omission of the City or any Affiliate of the City or any of their respective agents, officers or
employees, in connection with the operation or use of the Demised Premises to the extent such act
or omission caused the injury.
13.2.2 Any breach or default in the performance of any obligation on the City's part
to be performed under the terms of this Agreement.
The foregoing indemnification obligations of the City shall not extend to liabilities caused
by any willful, wanton, or negligent act or omission of The Phillies or any Affiliate of The Phillies
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than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim (i)
no compromise or settlement of such claims may be effected by the indemnifying party without the
indemnified party's consent unless (a) there is no finding or admission of any violation of Legal
Requirements or any violation ofthe rights of any Person and no effect on any other Claims that may
be made against the indemnified party, and (b) the sole relief provided is monetary damages that are
paid in full by the indemnifying party and (b) the indemnifying party will have no liability with
respect to any compromise or settlement of such claims effected without its consent. If notice is
given to an indemnifying party of a Claim and the indemnifying party does not, within thirty days
after the indemnified party's notice is given (or such lesser period of time as may be necessary to
avoid a Default on such Claim), give notice to the indemnified party of its election to assume the
defense of such Claim, the indemnifying party will be bound by any determination with respect to
said Claim or any compromise or settlement effected by the indemnified party.
13.3.3 Notwithstanding the foregoing, if an indemnified party determines in good
faith that there is a reasonable probability that a Claim may adversely affect it or its Affiliates other
than as a result of monetary damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive
right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by
any determination of a Claim so defended or any compromise or settlement effected without its
consent (which may not be unreasonably withheld).
13.4 Procedure for Indemnification -- Other Claims. A claim for indemnification for any
matter not involving a third-party claim may be asserted by notice to the party from whom
indemnification is sought.
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or rebuilding but do not prosecute the same diligently to completion, then the City shall be deemed
to be in Default under this Agreement and The Phillies shall have the rights and remedies set forth
in Section 17.
14.3 Phillies Option to Rebuild or R~air. In the event the City fails to commence such
repairs or rebuilding within 90 days of the occurrence of the casualty, The Phillies shall have the
right, but not the obligation, to undertake such repairs or rebuilding. In the event The Phillies so
undertake such repairs or rebuilding, The Phillies shall be entitled to reimbursement of the actual
costs thereofby the City as incurred, within 45 days of all invoices therefor, with interest thereafter
at the Default Rate.
15. Condemnation.
15.1 Total Taking. In the event the entire Demised Premises is appropriated or taken under
the power of eminent domain, or sold under threat thereof (all of which will be referred to as a
"condemnation"), by any public or quasi-public authority, The Phillies shall have the option to
terminate this Agreement as of the date the condemning authority takes title or possession,
whichever first occurs. The Phillies shall have no claim to the award in condemnation for the City's
interest in the Demised Premises; provided, however, that The Phillies shall have a claim to the
portion of the award in condemnation that represents compensation for the taking of the interest of
The Phillies under this Agreement, including without limitation its right (subject to Section 20.6)
to retain net revenues from the operation thereof.
15.2 Partial Taking. In the event that only a portion of the Demised Premises is
condemned, this Agreement shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs; provided, however, that if so much of the
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be deemed in Default under this Agreement and The Phillies shall have the rights and remedies set
forth in Section 17.
15.4 Phillies Option to Rebuild or Repair. In the event the City fails to commence such
repairs or rebuilding within 90 days of the occurrence ofthe condemnation, The Phillies shall have
the right, but not the obligation, to undertake such repairs or rebuilding. In the event The Phillies
so undertake such repairs or rebuilding, The Phillies shall be entitled to reimbursement of the actual
costs thereofby the City as incurred, within 45 days of all invoices therefor, with interest thereafter
at the Default Rate.
16. Assignment.
16.1 Assignment by The Phillies. In the event that The Phillies shall exercise the parallel
right(s) in Section 16.1 ofthe Use Agreement, The Phillies shall not sell, assign, encumber, pledge,
or otherwise transfer all or any portion of its interest in this Agreement without the prior written
consent of the City, except as follows:
16.1.1 The Phillies shall have the right to transfer all of its rights and obligations
under this Agreement to any Person that shall thereafter own the MLB franchise now held by The
Phillies; provided, however, that such transferee shall assume the obligations of The Phillies under
this Agreement; and provided, further, that MLB approves the transfer of such MLB franchise to
such transferee and the City has been provided with satisfactory evidence of such assumption and
approval.
16.1.2 The Phillies shall also have the right to transfer its interest in this Agreement
freely to the transferee MLB club; provided, however, that such transferee shall assume the
obligations of The Phillies under this Agreement.
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16.1.3 The Phillies shall have the right to transfer all or part or parts of its rights and
obligations under this Agreement to one or more special purpose entities which are Affiliates of The
Phillies, so long as The Phillies shall remain jointly and severally obligated for the performance of
this Agreement.
16.1.4 No transfer under this Section 16.1 shall release The Phillies from any
pre-existing liabilities under this Agreement, including, but not limited to any indemnification
obligations of The Phillies which arise prior to the date of such transfer.
16.2 Assignment by the City. The City shall have the right to assign certain rights under
this Agreement to a non-profit organization controlled by the City, provided that such assignment
will not affect The Phillies rights and remedies against the City under this Agreement and the City
shall at all times remain primarily liable for their obligations hereunder. Except as aforesaid, the
City may not assign its rights and duties under this Agreement without the consent of The Phillies.
17. Default.
17.1 Default. If any party hereto (the "Defaulting Party") shall fail to perform any of its
obligations under this Agreement, then the Party not in default (the "Non-Defaulting Party") shall
provide notice of such failure to the Defaulting Party and afford the Defaulting Party a grace period
to cure said failure, as follows:
17.1.1 Where a grace period is specifically provided for in any section of this
Agreement, that specific grace period shall apply.
17.1.2 Where a grace period is not specifically provided for in any other section of
this Agreement, the Defaulting Party shall afford the Non-Defaulting Party a grace period of: (i) five
business days to cure monetalY failure; and (ii) thirty days to cure any non-monetaty default;
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provided, however, that if any non-monetary failure cannot be cured within such thirty day period,
the Defaulting Party shall be afforded such additional time as shall be reasonably required to cure
such failure, ifthe Defaulting Party has commenced the appropriate cure within said initial thirty day
peliod and thereafter proceeds with reasonable diligence to cure said failure.
17.1.3 If any failure to perform shall not have been cured by the expiration of the
applicable grace period, then a "Default" shall be deemed to have occurred and the Non-Defaulting
Party shall have the rights and remedies set forth below.
17.1.4 Termination of this Agreement.
17.2 Non-Defaulting Party's Rights and Remedies. If a Default shall occur, the Non-
Defaulting Party shall have the right (but not the obligation):
17.2.1 To cure such default on behalf of the Defaulting Party, in which event the
Defaulting Party shall immediately reimburse Non-Defaulting Party for all sums paid by it to effect
such cure, together with interest thereon at the Default Rate; and
17.2.2 To collect all sums paid by it to effect such cure, together with interest thereon
at the Default Rate, by set off against all sums next-to-become-due to the Defaulting Party under this
Agreement.
17.3 Cumulative Rights. The remedies heretofore described in this Section 17 shall be in
addition to any other remedy the Non-Defaulting Party may have at law and in equity in the event
of a Default, including without limitation:
17.3.1 An action to recover monies then due and owing from the Defaulting Party,
together with interest thereon at the Default Rate from the date on which such monies were due;
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17.3.2 An action for specific performance of non-monetary covenants and
agreements on the part of the Defaulting Party; and/or
17.3.3 An action forrecoveryofall actual losses, costs and reasonable attorneys' fees
incurred by the Defaulting Party in connection with the default.
17.4 Iniunctive Relief. Without limiting any other remedies of the City on account of a
Default by The Phillies hereunder, The Phillies further acknow ledges that the City will be irreparably
harmed if The Phillies violate this Agreement by the transfer, move or other relocation of The
Phillies' spring training activities to, and/or the playing of Rome Games at, any locations other than
the Sports Facility and the Demised Premises during the Term otherwise than as provided or
permitted by the Use Agreement and by this Agreement. Accordingly, The Phillies hereby agree that
in the event of such a violation or threatened violation ofthe Use Agreement and ofthis Agreement,
the City shall be entitled to seek and obtain, and The Phillies hereby consent to the entry of, a
temporary restraining order, together with preliminary and permanent injunctive relief, from any
court of competent relief to enjoin any such violation or threatened violation. The Phillies waive any
requirement that the City post a bond or other security in connection with such injunctive relief. In
the event of such attempted or actual transfer, move or other relocation of ThePhillies' spring
training activities to, or the playing of Rome Games at, any locations other than the Sports Facility
and the Demised Premises, and the City is not able to obtain the injunctive relief provided for in this
Section 17.4, the City shall be entitled, at its option, to seek monetary damages.
17.5 Emergencv. Nothing in this Section 17 shall be deemed to limit The Phillies' right
to take action in emergencies pursuant to Section 9.7.
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18. Legal Opinions.
18.1 By the City. Concurrently with the execution and delivery ofthis Agreement, the City
has provided to The Phillies an opinion of its City Attorney advising The Phillies that (i) the City
is a duly organized and existing municipal corporation of the State of Florida and is authorized to
enter into and perform under this Agreement, (ii) execution of this Agreement by the City is duly
authorized, (iii) all notices required by Florida law and all necessary action required for the execution
and delivery ofthis Agreement or otherwise required under applicable law have been obtained, and
(iv) this Agreement is valid, binding and enforceable against the City in accordance with its terms,
subject only to such exceptions as are set forth expressly in such opinion and are reasonably
acceptable to The Phillies, as evidenced by its execution of this Agreement.
18.2 ByIbe Phillies. Concurrently with the execution and delivery ofthis Agreement, The
Phillies has provided to the City an opinion of its general counsel advising the City that (i) The
Phillies is a duly organized and existing limited partnership ofthe Commonwealth of Pennsylvania
and is authorized to enter into and perform under this Agreement, (ii) execution of this Agreement
by The Phillies is duly authorized, and (iii) this Agreement is valid, binding and enforceable against
The Phillies in accordance with its terms, subject only to such exceptions as are set forth expressly
in such opinion and are reasonably acceptable to the City, as evidenced by its execution of this
Agreement.
19. Miscellaneous.
19.1 Estoppel Certificates. Each party (as "responding party") shall at any time within
fifteen days after written request from the other party ("requesting party") execute, acknowledge and
deliver to the requesting party a statement in writing as of the date of such certification (i) certifying
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hindered or delayed in doing so by reason of a strike, lockouts, labor dispute, boycott, material or
energy shortage, casualty loss, weather conditions, acts of God, order of any government officer or
court (but excluding, as to the City, orders promulgated by the City themselves), national emergency
or war (collectively, "Force Majeure").
19.5 Notices. Any notice required to be given hereunder shall be in writing and sent by
either overnight courier service or United States certified or registered mail, postage prepaid,
addressed to the parties as follows:
If to the City:
City of Clearwater
112 South Osceola Avenue, 3rd Floor
Clearwater, Florida 33756
Attention: City Manager
With a copy to Counsel for the City:
Pam Akin, Esquire
112 South Osceola Avenue, 3rd Floor
Clearwater, Florida 33756
If to The Phillies:
Veterans Stadium
P.O. Box 7575
Philadelphia, P A 19101
Attention: David P. Montgomery,
President
and
Attention: William Y. Webb,
Vice President, General
Counsel and Secretary
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Notices shall be deemed given when actually received or when delivery is refused. The address for
notices to a party may be changed, from time to time, by notice from such party given as herein
required.
19.6 No Joint Venture. The City and The Phillies do not intend by entering into this
Agreement to create a partnership, joint venture or any relationship other than that of independent
contractors and licensor and licensee. Nothing in this Agreement shall be construed to create such
a partnership, joint venture or other relationship, nor shall it be construed to create any pledging of
the credit of the City or the faith and credit of the City.
19.7 Governing Law. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Florida, and the proper venue shall be in Pinellas County,
Florida.
19.8 Construction of this Agreement. This Agreement shall not be construed for or
against any party on the basis that such Party drafted any portion of this Agreement. In construing
this Agreement, feminine or neuter pronouns shall be substituted for those masculine in form and
vice versa, and plural terms shall be substituted for singular and singular for plural, in any place in
which the context so requires.
19.9 Binding Effect. Subject to Section 16, the covenants, terms, conditions, provisions
and undertakings in this Agreement, or in any renewals hereof, shall extend to and be binding upon
the successors and assigns of the respective parties hereto as if they were in every case named and
expressed, and wherever reference is made to made to either of the parties hereto, it shall be held to
include and apply also to the successors and assigns of such party as if in each and every case so
expressed.
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19.15 Waivers. No waiver of any provision hereof shall be deemed a waiver of any other
provision hereof or of any subsequent right by any party under the same or any other provision.
19.16 Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive,
but shall, wherever possible, be cumulative with all other remedies at law or in equity.
19.17 Right of Offset. Each party hereto, without waiving its rights under Section 17, shall
be entitled to set off against sums due from it hereunder to any other party any amounts owing to it
(including Default Interest if any) by such other party.
19.18 Attorneys' Fees. If an action or proceeding is brought to enforce the terms hereof or
declare rights hereunder, including without limitation Expedited ADR, the prevailing party in any
such action or appeal therefrom shall be entitled to its reasonable attorneys' fees and costs, which
shall include the costs of consultants and experts, to be paid by the losing party as fixed by the court
or arbitrator(s) inthe same or a separate action or proceeding.
19.19 Amendment. All waivers ofthe provisions ofthis Agreement must be in writing and
signed by the appropriate authorities of the City or The Phillies. This Agreement may not be
changed, modified or rescinded except in writing by the City and The Phillies, and any attempt at
oral modification of this Agreement shall be void and of no effect.
19.20 Authority. Each party hereto hereby represents and warrants to the other that it has
the authority to enter into this Agreement and to undertake and perform its respective obligations
hereunder.
19.21 Exhibits. Exhibits A and B are attached hereto and incorporated by this reference
thereto.
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19.22 Liability Limitation. Except as otherwise provided herein, no individual who is a
general partner of The Phillies, or a member ofthe City Commission or an officer, employee or agent
of any party hereto shall be liable to any other party, or any successor in interest thereto, for any
default by a party hereunder.
19.23 Certain Disputes. Any dispute between the parties arising under Sections 9 and 10
of this Agreement shall be resolved by Expedited ADR.
19.24 Inspection. The City may, at reasonable times and with reasonable notice, inspect
the Demised Premises from time to time during the Term.
19.25 Lawful Uses. The City represents and warrants that the Demised Premises may now
and during the Term shall continue to be lawfully used for the purposes described in Section 5.1.
19.26 Drainage Easements. The Demised Premises are leased and subleased in Section 20
subj ect to certain drainage easements which are described more particularly in Exhibit A hereto, and
which are depicted in Exhibit A hereto. These drainage easements benefit both the Demised
Premises and certain real property adjoining to the South ofthe Demised Premises and were granted
in part, with the consent of The Phillies, by a Drainage Easement Agreement between the City and
The Sembler Family Partnership #3, Ltd., dated , 1986.
19.27 Amendment of Use Agreement. The parties hereby agree to amend the Use
Agreement so that Section 16.1.3 hereof shall also appear as Section 16.1.3 thereof and that existing
Section 16.1.3 shall be renumbered as Section 16.1.4 thereof.
20. Sublease of Demised Premises to the City. The Phillies hereby subleases the Demised
Premises to the City on the following terms and conditions:
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20.1 Term. The term ofthe sublease shall be during those periods during each year within
the Term that The Phillies do not use the Demised Premises as permitted by Section 5.1. At present
the periods of such non-use are generally November through mid-January. Also, from mid-January
through October, the periods of non-use include those evenings when the Demised Premises may
not be in use by The Phillies and there is no event at the Sports Facility. The City and The Phillies
may also agree from time to time to the use of a portion of the Demised Premises when such use is
requested by one party and not required by the other party. The Phillies shall have scheduling
priority over all portions of the Demised Premises except for Bomber Stadium as to which the City
shall have scheduling priority. At the City's request, from time to time, The Phillies shall supply a
list of the exact dates The Phillies will use the Demised Premises during a given year.
20.2 Rent. The annual sublease rent shall be $1.00, payable by the City on each
February 15 during the Term in advance, and shall be offset against the rent payable to the City under
Section 6.
20.3 Use. The City shall use the Demised Premises only for recreational uses that shall
not harm the playing fields and practice fields and that do not otherwise impair the usefulness ofthe
Demised Premises to The Phillies for the purposes specified in Section 5.1. Specifically, but without
limitation, the City shall after each use timely restore the practice and playing fields to a condition
that is suitable for playing Major League baseball.
20.4 Bomber Stadium. That portion of the Demised Premises commonly referred to as
Bomber Stadium, including the field, seating facilities and concession stand, may continue to be used
by the City for nonprofessional softball and baseball games during the Term. On those days and
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during those times when Bomber Stadium is not being used for such purpose, it may be used by The
Phillies.
20.5 Maintenance and Repair. The terms of Section 9 shall also govern this sublease,
except that The Phillies' obligations under the first sentence of Section 9.1 shall be performed by the
City during the periods covered by this sublease.
20.6 Revenue. The Phillies shall not be entitled to any revenue (other than rent as
provided herein) generated from the City's use ofthe Demised Premises pursuant to this sublease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Countersigned:
THE CITY OF CLEARWATER, FLORIDA
~~
Brian J. Aungst
Mayor-Commissioner
B~f3.~~
illiam B. Home, II
Interim City Manager
as to form:
Attest:
Pamel K. Akin
City Attorney
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THEPHILLIES
By:
David P. Montgomery
General Partner
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EXHIBIT A
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DEMISED PREMISES AND DRAINAGE EASEMENT
CARPENTER FIELD
The t portion of the NE 1/4 of the SE 1/4 of Section 7,
Township 29 South, Range 16 East, being more and
particularly described as follows, to wit: Commence at
the Southwest corner of the aforesaid NE 1/4 of the SE
1/4 of Section 7, Township 29 South, Range 16 East and
run S 89047' 43" E, 239.10 feet for a POINT OF
BEGINNING; thence continue S 89047' 43" E, 999.04
feet to an intersection with the western right of way line
of U.S. 19; thence along this last described right of way
line N 0054' 44" E, 496.84 feet; thence N. 89005' 16" W,
30.00 feet; thence N 0054' 44" E, 750.00 feet; thence
S 89005' 16" E, 10.00 feet; thence N 0054' 44" E, 102.88
feet to the East and West centerline of the aforesaid
section; thence run N 89059' 16" W, 841.03 feet; thence
S 27045' 31" W, 314.80 feet, to an intersection with the
eastern right of way line of the Florida Power Corp. right
of way; thence S 0041' 29" W, 1067.97 feet along the
aforesaid eastern right of way line to the P.O.B. and
containing 29.98 acres, more or less;
SUBJECT TO THE FOLLOWING DESCRIBED DRAINAGE EASEMENTS:
ALSO,
ALSO,
The North 50 feet; the East 50 feet of the south 750 feet
of the North 852.88 feet, and the East 60 feet of the
North 102.88 feet of the above described property;
Commence at the Southwest corner of the Northeast 1/4
of the Southeast 1/4 of said Section; thence along the
South line of said Northeast 1/4 of the Southeast 1/4, S.
89047' 45" E., 1237.47 feet to the West right-Qf-way line
of U. S. Highway 19; thence along said line, N. 00054' 44"
E., 496.84 feet; thence N. 890 OS' 16" W., 30.00 feet;
thence N. 00054' 44" E., 644.24 feet; thence leaving said
West right-Qf-way line, N. 890 OS' 16" W., 50.00 feet to
the POINT OF BEGINNING; thence N. 44002' 35" W.,
219.39 feet; thence along a line 50.00 feet South of and
parallel with the North line of the Southeast 1/4 of said
Section, S. 89059' 16" E., 155.03 feet; thence leaving said
line, S. 000 54' 44" W., 157.69 feet to the POINT OF
BEGINNING; containing 0.28 acres more or less;
Commence at the Southwest corner of the Northeast 1/4
of the Southeast 1/4 of said Sect-ion; thence along the
South line of said Northeast 1/4 of the Southeast 1/4, S.
89047' 45" E., 1063.67 feet to the POINT OF BEGINNING;
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thence leaving said line, N. 11039' 19" E.,. 508.18 feet;
thence S. 89005' 16" E., 79.06 feet to the West right-of-
way line of U. S. Highway 19; thence along said right-of-
way line, being 100 feet West of and parallel with the
East line of the Southeast 1/4 of said Section, 3. 000 54'
44" W., 496.84 feet to the South line of the Northeast 1/4
of the Southeast 1/4; thence along said South line, N. 890
47' 45" W., 173.79 feet to the POINT OF BEGINNING;
containing 1.44 acres more or less.
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Soulhwesl Corner of N.E. 1/4
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THIS IS NOT A SURVEY
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EXHIBIT B
EXPEDITED ADR
All claims, demands, disputes, controversies and differences that may arise under this
Agreement between the parties, concerning any controversies under the Sections ofthis Agreement
making reference to the use of Expedited ADR shall be resolved by Alternative Dispute Resolution
as set forth below:
1. Disputes submitted to Expedited ADR hereunder will be conducted before a "Panel"
designated in the manner provided in Section 2 below. The decision of the Panel will be final and
binding upon the parties as to all matters in dispute and will be enforceable by a court of competent
jurisdiction. The rules of the American Arbitration Association will be used for guidance in
establishing procedures for the arbitration, but their use will not be mandatory unless the parties are
unable to agree on an alternative body of rules.
2. In the case of disputes involving construction matters at the Sports Facility, the Panel
will consist of three persons selected by the parties from a list of twenty-one persons with at least
ten years experience in the construction business furnished by the Florida Chapter ofthe American
Arbitration Association. In the case of disputes involving operations at the Sports Facility, the Panel
will consist ofthree persons selected by the parties from a list of eleven persons, each ofwhom must
have at least ten years of experience in the stadium/arena management business furnished by the
Florida Chapter ofthe American Arbitration Association. The Panel ofthree will be selected from
such list by the mutual agreement of the parties. If, within three days following the day on which
the list is furnished to the parties, the parties are unable to agree on the composition of the Panel,
then representatives of the parties will meet promptly and the following procedures will be used:
The Phillies will strike the name of a person on the list. Within fifteen minutes thereafter, the Public
Bodies will strike a name from the list. At fifteen minute intervals thereafter, each party will strike
a name from the list. If a party fails to strike a name within the allotted time period, it will forego
its turn to strike a name. The last three names on the list will constitute the Panel.
3. Within thirty days following the appointment the Panel as provided for above, the
Panel shall hold a hearing which hearing shall be held at Tampa, Florida, or at any other place agreed
to by the parties involved.
4. The Public Bodies or The Phillies may join any other party to the arbitration which
is needed for just adjudication. The standard for joinder of any other party shall be that provided
under Rule 19 of the Florida Rules of Civil Procedure.
5. If the Panel determines that either party's position in the dispute was without merit,
such party will pay the other party's reasonable attorneys' fees and costs related to the arbitration,
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including the costs and fees of the Panel, fees to the American Arbitration Association and other
costs of such arbitration otherwise payable by such party in the arbitration proceedings. In all other
cases, the parties will share equally the costs of such arbitration and will pay their own attorneys'
fees.
6. At least ten days prior to the hearing, the parties shall meet and exchange exhibits and
pre-hearing statements and stipulate and agree on non-disputed facts. No exhibit shall be admitted
unless listed on the pre-hearing statement and exchanged between the parties. No witness may be
presented unless indicated on the pre-hearing statement or unless produced for rebuttal purposes.
Prior to or at the hearing, each party shall submit a memorandum not to exceed five pages outlining
the relevant issues for the Panel. At the hearing, the laws of evidence of the State of Florida shall
apply, and the Panel shall allow each party to present that party's case, evidence and witnesses and
render its award, including a provision for payment of attorneys' fees and costs of arbitration to be
paid by one or both of the parties to this Agreement, as the Panel deems just.
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