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COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT This SPORTS COMPLEX AMENDATORY AGREEMENT (this "Amendment") is made and entered into as of April 1 , 2002 (the "Effective Date") by and among THE CITY OF CLEARWATER, FLORIDA, a municipal corporation (the "City") and THE PHILLIES, a Pennsylvania limited partnership. BACKGROUND The City and The Phillies are parties to three instruments respectively relating to the development and use of a new community sports complex and to the use of related spring training facilities: (i) the Agreement for Development of Community Sports Complex (the "Development Agreement") dated as of March 1, 2001; (ii) the Sports Facility Use Agreement (the "Use Agreement") dated as of December 31, 2000; and (iii) the Baseball Training Facility Lease Agreement (the "Training Facility Agreement") dated as of December 31, 2000 (together, the "Documents"). Capitalized terms not separately defined herein are used in parts A, B and C of this Amendment as they are defined in the Document which the relevant part amends and, in the balance of this Amendment, as defined in the Development Agreement. Pursuant to the Development Agreement, the City had selected and The Phillies had agreed that the EXHIBIT "A" Property should be the project site for the development of the community sports complex. The City and The Phillies subsequently determined, for the reasons recited in the letter agreement between them dated October 5, 2001 (the "Letter Agreement"), that the EXHIBIT "A" Property was unsuitable for the development of the community sports complex and they set forth in the Letter Agreement their understandings as to the selection of an alternate project site and the related modification of certain dates in the Documents, as contemplated in the Development Agreement. The City and The Phillies have now made that selection of an alternate project site and, accordingly, are entering into this Amendment to effect the necessary amendments to the respective Documents. AGREEMENT The parties agree as follows, all effective as ofthe Effective Date: A. Amendments to the Development Agreement. The Development Agreement is hereby amended in the following - and only in the following - specific respects: COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT -\ ! 1. The definitions set forth in Article 1 of the Development Agreement are supplemented and modified as follows and the numeration of the Sections thereof is modified as necessary to maintain the listing of those definitions in alphabetical order: a. The following definitions are added to the Development , Agreement: i. "Amendment" means that certain Community Sports Complex Amendatory Agreement dated as of April 1, 2002, which, inter alia, amends this Agreement. ii. "Collateral Site" means the land area that is identified as such and legally described on Exhibit "A" and depicted and identified as such on the drawing ofthe overall Project Site attached as Exhibit "A-I". iii. "Primary Site" means the land area that is identified as such and legally described on Exhibit "A" and depicted and identified as such on the drawing of the overall Project Site attached as Exhibit "A-I" and consisting of those certain land areas identified as the "Home Depot Site" (the "Home Depot Site") and "Bomber Field" ("Bomber Field") and legally described on Exhibit "A" and depicted and identified as such on Exhibit "A-I". b. The following definitions are restated in their entirety to read in full as set forth below: i. "City Environmental Study" means collectively: (1) the study of the environmental conditions of the Collateral Site conducted by Tampa Bay Engineering, Inc., the results of which are contained in that certain report entitled "Limited Investigation of Joe DiMaggio Fields," dated as of December 5, 2000; (2) Phase I Environmental Site Assessment for 21870 U.S. Highway 19 North and Adjacent Bombers Softball Complex, Clearwater, Florida 33759, conducted by TBE Group, Inc., dated March 2002; (3) Qore Proposal No. 27-3587 Limited Soil and Ground Water Investigation of Proposed Community Sports Complex, Clearwater, Florida, performed by Qore Property Sciences, dated April 1, 2002; and (4) Qore Project No. 24-0670A, Report No. 001, Report of Preliminary Geotechnical Subsurface Exploration for the Proposed City of Clearwater Community Sports Complex, Clearwater, Pinellas County, Florida, prepared by Qore Property Sciences, dated April 2, 2002. ii. "Community Sports Complex" means that part of the Project consisting of (A) the Site Preparation and (B) the development and construction 2 COMMUNITY SPORTS COMPLEX AMI!NDATORY AGRI!EMENT of that certain sports facility to be developed and constructed on the Project Site pursuant to the terms of this Agreement which shall include without limitation (i) an open air, natural grass ballpark meeting first class Major League Baseball spring training standards, with approximately 7,000 fixed seats (excluding premium seating and group areas) and an outfield berm seating area accommodating approximately 1,000 fans for on-grass seating and including clubhouse facilities, batting tunnels, team office space for The Phillies, locker rooms, and other elements of such ballpark and stadium, to be located on the Primary Site; (ii) one practice infield; (iii) on-site parking areas located as generally depicted on Exhibit "A-I" and providing for approximately 370 vehicles, including player/staff/VIP parking, on the Primary Site and parking on the Collateral Site for approximately 1200 vehicles during events; (iv) in the discretion of The Phillies, other facilities such as a restaurant/sports bar, a souvenir/sporting items store, a health/fitness facility, and other facilities of like or similar use (the items in this clause (iv) being collectively referred to herein as the "Phillies Discretionary Facilities"), all on the Primary Site; and (v) one full size, lighted practice field meeting Major League Baseball standards for spring training practice fields, to be located on the Collateral Site. iii. "Conditions Satisfaction Date" means October 1, 2002, or such other date agreed to in writing by the parties. iv. "Project Site" means those tracts of land consisting of the Primary Site and the Collateral Site, including the public rights-of-way and any land to be dedicated to public use, located in the City on which the Site Work will be done, some of the Infrastructure Improvements will be constructed or installed and the Community Sports Complex will be developed and constructed. v. "Project Site Acceptability Determination Date" means July 1, 2002, or such other date agreed to in writing by the parties. vi. "Public Source Project Funding Deadline" means October 1, 2002, or such other date agreed to in writing by the parties. vii. "Use Agreement" means that certain Sports Facility Use Agreement between the City and The Phillies dated to be effective as of December 31, 2000, as the same may be amended, supplemented or modified by written agreement of the parties, including without limitation the Amendment, providing for the use of the Community Sports Complex by The Phillies for the term and upon the terms and conditions therein provided. 2. Section 3.02 is amended and restated to read in full as follows: 3 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT Section 3.02. Site Determination. The City and The Phillies agree that the Primary Site and the Collateral Site shall be the Project Site, unless the Phillies Site Investigation discloses conditions which The Phillies determines make the Primary Site and the Collateral Site unsuitable for the portion of the Community Sports Complex to be built on the Primary Site during the Phillies Evaluation Period as provided in Section 3.04 or in the event that the conditions precedent to The Phillies obligations hereunder as provided in Section 3.12 have not been met, in either of which cases The Phillies shall have the right to terminate this Agreement as provided in Section 3.04 and Section 3.12. The Phillies Site Investigation shall, in all events, be completed no later than by July 1, 2002. The City agrees, to the fullest extent permitted by law, that it shall (subject to the more specific indemnities provided in Section 3.04, Section 3.06, and Section 3.09 below) hold The Phillies, its partners, officers, agents, employees, and independent contractors, harmless of, from and against any and all claims or causes of action asserted by any Person alleging or asserting any adverse effect with respect to such Person's lands or the improvements thereon, or the use or operation thereof, as a result of the development, construction and/or operation of the Community Sports Complex on the Project Site. 3. Section 3.03 is amended and restated to read in full as follows: Section 3.03. Title to Project Site. The City represents and warrants to The Phillies as follows with respect to the respective parcels comprising the Project Site: a. As to the Collateral Site: i. The City acquired the Collateral Site on December 19, 2000, and is the owner in fee simple absolute of good and marketable title to such property; ii. The Collateral Site IS free and clear of all liens and encumbrances; iii. The Collateral Site is not subject to any easement, covenant or restriction which would prevent, or which would impose any unreasonable restriction or cost, on the development, construction, completion, use or operation of a full size, lighted practice field meeting Major League Baseball standards for spring training practice fields thereon or for parking for events at the Community Sports Complex. b. As to Bomber Field: 4 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT i. The City acquired Bomber Field on January 17, 1963, and is the owner in fee simple absolute of good and marketable title to such property; ii. Bomber Field is free and clear of all liens and encumbrances; iii. Bomber Field is not subject to any easement, covenant or restriction which would prevent, or which would impose any unreasonable restriction or cost, on the development, construction, completion, use or operation of that portion of the Community Sports Complex contemplated to be constructed thereon. c. As to the Home Depot Site: i. The Home Depot Site is currently owned by Home Depot USA, Inc. and the City has entered into a Purchase and Sale Agreement with Home Depot USA, Inc. dated as of April 4, 2002 (the "Home Depot Contract"), to purchase the Home Depot Site and upon closing thereof, the City shall be the owner in fee simple absolute of good and marketable title to such property; ii. Upon the City's acquisition of the Home Depot Site, the Home Depot Site shall be free and clear of all liens and encumbrances; iii. On the date the City acquires title to the Home Depot Site, the Home Depot Site shall not be subject to any easement, covenant or restriction which would prevent, or which would impose any restriction or cost, on the development, construction, completion, use or operation, pursuant to this Agreement and the Use Agreement, of that portion of the Community Sports Complex contemplated to be constructed thereon. iv. Upon the City's acquisition of the Home Depot Site, the Primary Site shall have full access, including both vehicular and pedestrian ingress and egress, to and from the Primary Site and Drew Street and Coachman Road, as well as vehicular only access to and from U.S. Highway 19, sufficient for the development, construction, use and operation ofthe Community Sports Complex on the Primary Site. v. Upon the City's acquisition of the Home Depot Site, The Phillies shall have the right to develop, construct, use and operate parking areas on the Home Depot Site serving the Community Sports Complex, pursuant to this Agreement and the Use Agreement, all on an exclusive and unrestricted basis. In connection with its due diligence under the Home Depot Contract, the City is to obtain a title insurance commitment for an owner's policy of title insurance. 5 COMMUNITY SPORTS COMPLex AMENDATORY AGREEMENT The City covenants and agrees with The Phillies that such title insurance commitment shall additionally provide for the simultaneous issuance, at the sole cost and expense of The Phillies, of a leasehold policy of title insurance in favor of The Phillies and covering the Project Site, upon the City's acquisition of the Home Depot Site. Upon the City's receipt of the title insurance co~itment, the City shall deliver to The Phillies a true and correct copy of said title insurance commitment together with copies of all exceptions to title noted therein. The Phillies shall have a period of time not exceeding fifteen (15) days within which to review and give written notice to The City of any matter relating to title to the Project Site which The Phillies deems objectionable. To the extent that any such objection relates to the Home Depot Site, the City shall raise such objection to title as its own objection under the Home Depot Contract. In the event that any such objection is not satisfactorily cured by July 3, 2002, The Phillies shall have the option of terminating this Agreement and the Use Agreement by written notice to the City or waiving such objections. The City represents and warrants to The Phillies that it has previously obtained an owner's policy of title insurance with respect to Bomber Field and the Collateral Site and that it has delivered to The Phillies true and correct copies thereof together with true, correct and complete copies of any exceptions to title therein. The City further covenants and agrees that, if at any time or from time to time, there shall exist any defect to the City's good and marketable fee simple title to the Project Site, the City shall, at the City's sole cost and expense, take all such action as is required or necessary in order to cure such defect and assure the City's good and marketable fee simple title in and to the Project Site, free of all liens and encumbrances and all easements, covenants or restrictions which would impose any unreasonable restriction or cost on, the development, construction, completion, use or operation of the Community Sports Complex and practice field as contemplated by the terms of this Agreement and the Use Agreement, including without limitation bringing any condemnation action or otherwise exercising the City's right to eminent domain. The foregoing covenant shall remain in full force and effect for the entire term of this Agreement, and thereafter for so long as the Use Agreement is in full force and effect, notwithstanding the termination of this Agreement. 4. Section 3.04 is amended and modified as follows: a. Any reference in Section 3.04 to "the Exhibit 'A' Property" is hereby changed to read "the Primary Site." b. The reference to "Dated Date" in the second line of Section 3.04 is hereby deleted and replaced with "effective date of the Amendment." c. The reference to "Section 3.05" in the parenthetical ending on line 11 of Section 3.04 is hereby changed to "Section 3.06." 6 COMMUNITY SPORTS COMPLR AMENDATORY AGREEMENT 5. Section 3.05 is hereby amended and restated as follows: Section 3.05. City Site Investigations. The City, at its sole cost and expense, has previously performed the City Geotechnical Investigation of the Primary Site and a Phase I environmental site assessment and a limited Phase IT environmental assessment of the Primary Site and has previously delivered to The Phillies (i) original signed copies of the Report of Preliminary Geotechnical Subsurface Exploration, Proposed City of Clearwater Sports Complex, dated April 1, 2002, of the City's geotechnical consultant, Qore Property Sciences (collectively, the "City Geotechnical Report"), (ii) an original signed copy of that certain Phase I Environmental Site Assessment for 21870 U.S. Highway 19 North and Adjacent Bombers Softball Complex, Clearwater, Florida 33759, conducted by TBE Group, Inc., dated March 2002, (iii) Qore Proposal No. 27-3587 Limited Soil and Ground Water Investigation of Proposed Community Sports Complex, Clearwater, Florida, performed by Qore Property 'Sciences, dated April 1, 2002 I (the reports referenced to in clauses (ii) and (iii) being referred to herein as the "Primary Site ESAs"), and (iv) copies of the City's respective agreements with its geotechnical and environmental consultants. The City has consented, and does hereby consent to, The Phillies obtaining, at The Phillies' sole cost and expense, reliance letters from the City's geotechnical consultant and environmental consultants providing that the City Geotechnical Report and the Primary Site ESAs, respectively, shall be certified to, and may be relied upon by, The Phillies. The Geotechnical Report and the Primary Site ESAs may, at The Phillies' sole cost and expense, be certified to The Phillies and may, subject to the acknowledgment set forth in the immediately following sentence, be used and relied upon by The Phillies. The Phillies acknowledges that the City has not warranted and is not warranting the specific appropriateness or usefulness of the particular scope of work proposed by the geotechnical consultant or the environmental consultants and approved by The Phillies and that the City is not responsible for the accuracy or reliability of the results of the City Geotechnical Investigation or the Primary Site ESAs or any negligence on the part of the consultants with respect to the analysis, recommendations, or results of those investigations. 6. Section 3.06 is amended and modified so that any reference to "the Exhibit 'A' Property" is changed to refer to "the Primary Site." 7. A new second sentence is added to Section 3.08 to read in full as follows: "The Site Work shall include without limitation the demolition of all buildings and structures on the Primary Site and the restoration of the Primary Site to grade." 8. Section 3.09 is amended and modified so as to provide that any reference to "the Exhibit 'A' Property" is changed to refer to "the Project Site." 9. A new Section 3.12 is hereby added to read in full as follows: 7 COMMUNITY SPORTS COMPLex AMI!NDATORY AGREEMENT Section 3.12 Rights of Termination Relative to Failure to Acquire Home Depot Site. Notwithstanding anything contained herein to the contrary, either party shall have the right to terminate all of, but not less than all of, this Agreement, the Use Agreement and that certain Baseball Training Facility Lease Agreement between the parties dated as of December 31, 2000, upon giving written notice to the other within fifteen (15) days ofthe occurrence of any ofthe following: (a) The City shall have determined on or before July 3, 2002, not to proceed with the acquisition ofthe Home Depot Site. (b) The City shall not have acquired title to the Home Depot Site on or before August 31, 2002. (c) The City's representations and warranties relative to the Home Depot Site set forth in clauses 3.03 c.ii., 3.03 c.iii., 3.03c.iv. or 3.03 c.v. shall be untrue in any respect on or as of the date of the City's acquisition of the Home Depot Site and thereafter. In the event of any of the foregoing, the parties shall have their respective rights as specified in Section 14.06 hereof and, to the extent applicable thereto, those specified in Section 15.23. 10. Section 4.01 is amended and restated to read in full as follows: Section 4.01. Zoning. The City represents and warrants to The Phillies that as of the effective date of the Amendment, the zoning classification for Bomber Field is "OSR," the zoning classifications for the Home Depot Site are "c" and "P" and the zoning classification for the Collateral Site is "Institutional" and such classifications permit, without the necessity of obtaining a variance or special exception, the development and use of the Community Sports Complex as contemplated by this Agreement and the Use Agreement, and if all of the Phillies Discretionary Facilities are located on that portion of the Home Depot Site bearing a zoning designation of "C", then no public referendum approval will be required. 11. Section 4.02 is amended and modified so as to provide that any reference to "the Exhibit 'A' Property" is changed to refer to "the Project Site." 12. Section 4.05 is hereby amended and modified to substitute the phrase "the effective date of the Amendment" for the term "Dated Date." 8 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT 13. Section 6.01 is amended and modified so as to provide that any reference to "the Exhibit 'A' Property" is changed to refer to "the Project Site." 14. Section 7.03 is amended and restated to read in full as follows: Section 7.03 Site Preparation. Except for the Site Work, the Infrastructure Improvements, and development, construction and completion of a practice field and grading for parking on the Collateral Site as provided in Section 7.11, all of which the City is required to perform and pay for pursuant to the terms of Section 3.08, ARTICLE 6, and Section 7.11 hereof, The Phillies shall be responsible for and shall undertake the Site Preparation in accordance with the Project Schedule and after the City's completion of the Site Work. The sole exception to the City's obligation to complete the Site Work is that The Phillies will bear the cost of removing the building structure now on the Home Depot Site but the City shall remain responsible for any environmental remediation (including without limitation in respect of asbestos or any other hazardous materials within or related to such building structure) and for any underlying geotechnical conditions. 15. A new Section 7.11 is added to read in full as follows: Section 7.11 Development of Collateral Site Practice Field and Parking. The City covenants and agrees with The Phillies that the City, at its sole cost and expense, shall, on or before the date for completion thereof established in the Project Schedule, (i) improve and upgrade the existing eastern-most baseball field located on the Collateral Site to a full size, lighted practice field meeting then current Major League Baseball standards for a first-class practice field, but in any event not less than the standard and condition of those certain existing practice baseball fields located at the "Carpenter Complex" located to the north of Bomber Field and (ii) complete all necessary or required grading of the remainder of the Collateral Site to the extent necessary to provide at least 1200 parking spaces that will be available for use for parking for events at the Community Sports Complex by The Phillies pursuant to the Use Agreement. Prior to commencing any such work, the City shall prepare and submit on or before the date therefor established in the Project Schedule, to The Phillies for review and approval plans and specifications conforming with all Legal Requirements and the standards herein set forth. If The Phillies does not approve any part of the plans and specifications for the practice field or parking area, then the City and The Phillies shall expeditiously, diligently, and reasonably meet to resolve such items. To the extent that the parties can not agree on resolution, such matter shall be submitted to Expedited ADR for determination. The City will not proceed with, or permit others on behalf of the City to proceed with, the upgrade or installation of said practice field unless and until The Phillies has approved the plans and specifications therefor. 9 COMMUNITY SPORTS COMPLEX AM~NDATORY AGREEMENT 16. A new Section 7.12 is added to read in full as follows: Section 7.12 Purchase of Home Depot Materials. The Phillies covenants and agrees that during the course of development, construction and completion of the Community Sports Complex pursuant to the terms hereof, it shall purchase or cause its Contractors to purchase from Home Depot USA, Inc. (or any Affiliate thereof) materials and/or supplies having an aggregate purchase price of not less than $250,000.00. 17. in full as follows: The first sentence of Section 8.03 is amended and restated to read The City was certified on January 1,2001, by OTTED for State matching funds pursuant to the STFF Program and the STFF Act in the amount of $500,000 per year for 30 years, and having a net present value of not less than $7,000,000 which the City shall pledge to secure, and to pay a portion of the debt service on the Bonds in an amount not to exceed $7,000,000 for the capital construction of the Community Sports Complex. Any additional funds realized from the bonding over $7,000,000 may be used towards the acquisition of the Project Site. 18. The following sentence is added at the end of Section 8.04: "Notwithstanding the foregoing, the City shall, in any event, provide exactly $14,000,000 in net bond proceeds or other funds to The Phillies pursuant to this Section 8.04 on or before the Public Source Project Funding Deadline." 19. Section 8.06 is amended to delete its first sentence and to add the following proviso to the end of its last sentence: "; provided, however, that The Phillies Capital Contribution, when added to the Public Source Project Funding, shall produce a total sum of at least $20,500,000." 20. The first three lines of Section 8.09 are amended to read in full as follows: "The $14,000,000 required by Section 8.04, together with the City...." Section 8.09 is further modified and amended so as to add the following to the end of the current Section 8.09: "Notwithstanding anything contained herein to the contrary, to the extent that The Phillies incurs any Project Costs prior to the issuance of the Bonds and the full funding of the Construction Fund as herein contemplated, the City agrees that it shall deposit into the Construction Fund from other sources sufficient monies to pay the Project Costs in monthly disbursements otherwise in accordance with the terms hereof; provided, however, in the event that the Bonds are not issued on or before the Conditions Satisfaction Date solely as the result of a so called "market-out" condition, as provided and defined in Section 8.08, only, The Phillies shall cease incurring further Project Costs within ten (10) Business Days after receipt of written notice that the Bonds have not been 10 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT issued on or before the Conditions Satisfaction Date as a result of such "market-out" condition." 21. Section 11.02(d) is amended and modified so as to provide that any reference to "the Exhibit 'A' Property" is changed to refer to "the Project Site." 22. The reference to "$24,000,000" in the fourth line of Section 13.01 is changed to refer to "$22,500,000" and the costs therein referred to are exclusive of the cost to the City of acquiring the Home Depot Site. 23. The date "October 1,2001" in Section 13.03 is changed to the date of "September 30, 2002." 24. Section 13.05 is hereby modified and amended by adding thereto the following subparagraph (g): "(g) The zoning classification for Bomber Field is "OSR," the zoning classifications for the Home Depot Site are "C and P" and the zoning classification for the Collateral Site is "Institutional" and such classifications permit, without the necessity of obtaining a variance or special exception ,the development and use of the Community Sports Complex as contemplated by this Agreement and the Use Agreement, and if all of the Phillies Discretionary Facilities are located on that portion of the Home Depot Site bearing a zoning designation of "C", then no public referendum approval will be required. " 25. A new Section 15.23 is added, to read in full as follows: Section 15.23. Design Costs. As a result of the due diligence period on the purchase of the Home Depot Site, the City will not be committed to acquire the Home Depot Site until July 3, 2002. During this period, The Phillies will be undertaking steps to design the new Community Sports Complex to be constructed on the Project Site and as a result will be incurring costs for such design services. In the event the City elects not to proceed with the acquisition of the Home Depot Site on or before July 3, 2002, the City shall reimburse The Phillies for such design costs incurred in the months of May and June 2002 at an amount not to exceed $100,000 per month. In the event the City elects to acquire the Home Depot Site following the conclusion of the due diligence period, then the City shall not be obligated to so reimburse The Phillies for such design costs. 26. The City represents and warrants to The Phillies that all representations and warranties made by the City in the Development Agreement, as the same have been modified and amended by this Amendment, are true and correct as of the effective date of this Amendment. The Phillies represents and warrants to the City that 11 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT all of the representations and warranties made by The Phillies in the Development Agreement, as the same have been modified and amended by this Amendment, are true and correct as of the effective date of this Amendment. 27. The existing Exhibit "A" attached to the Development Agreement is replaced with Exhibit "A" and Exhibit "A-I" attached to this Amendment. 28. The existing Exhibits "G" and "f' to the Development Agreement are replaced with Exhibits "G" and "I" attached to this Amendment. B. Amendments to the Use Agreement. The Use Agreement is hereby amended in the following - and only in the following - specific respects: 1. The definitions set forth in Section 2 of the Use Agreement are supplemented and modified as follows and the numeration of the subsections thereof is modified as necessary to maintain the listing of those definitions in alphabetical order: a. The following definitions are added to the Agreement: 1. "Collateral Site" means the land area that IS identified as such on the Site Plan. ii. "Phillies Practice Field" means the whole baseball field on the Collateral Site that is identified as such on the Site Plan. 111. "Primary Site" means the land area that is identified as such on the Site Plan. b. The following definitions are restated in their entirety to read in full as set forth below: i. "Commercial Space" means any spaces and facilities in the Sports Facility that may be described as such in the Scope of Work. ii. "Improvements" means the Stadium, and all other improvements to real property now or hereafter located on the Primary Site, including, without limitation, all improvements described in the Scope of Work and the Site Plan. 111. "Site" means the land area described in the Site Plan, which is comprised of the land areas respectively referred to in the Site Plan and in this Agreement as the "Primary Site" and the "Collateral Site." 12 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEME!NT 2. The date referenced in Section 3.1(i) is changed from January 1, 2003 to January 1,2004. 3. The name "St. Petersburg Junior College" IS changed to "St. Petersburg College" in Sections 5.2.1 and 8.3. 4. The year referenced in Section 5.4 is changed from 2003 to 2004. 5. Section 5.1.11 is amended to add the following proviso at its end, following a semicolon: "provided, however, that The Phillies' use of those portions of the Collateral Site other than the Phillies' Practice Field shall be limited to parking for Events." 6. Section 8.3 is amended to start with this sentence: "The City shall at all times keep all portions of the Collateral Site (other than the Phillies' Practice Field) in suitable condition and available to provide 1200 parking spaces for parking for Events. " 7. The first two sentences of Section 9.1 are restated in their entirety, to read in full as follows: "The Phillies shall have the obligation to keep the portions of the Sports Facility located on the Primary Site and on the Phillies' Practice Field clean and to provide light housekeeping (e.g. changing bulbs, towels, etc) for the interior areas of the Sports Facility. The Phillies shall be responsible for the ordinary and customary day-to-day maintenance of the following (and only the following) portions of the Sports Facility: (i) the playing fields (including the Phillies' Practice Fields), (ii) the Phillies Exclusive Use Areas, (iii) the Luxury Suites and (iv) the Commercial Space (together, the "Phillies Maintenance Obligations")." 8. Section 16.1.3 is renumbered as Section 16.1.4 and a new Section 16.1.3 is added to read in full as follows: 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. 9. A new Section 19.24 is added to read in full as follows: 19.24. Use; Ad Valorem Taxation. During the entire term of this Agreement, including without limitation any renewals, The Phillies shall have exclusive use of the Phillies Exclusive Use Areas. The Phillies shall further have exclusive use of the Sports Facility during Phillies Events. All Events, other than Phillies Events, and at all times 13 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT when no Events occur, including without limitation any Disaster Staging, shall be deemed to be public use for the purposes hereof, but otherwise subject to the terms and provisions of this Agreement. The scheduling of the use of the Sports Facility, other than for Phillies Events, will be determined jointly by The Phillies and the City, and as provided herein; provided, however, that The Phillies shall have ultimate scheduling priority as to Phillies Events. Except for the exclusive use by The Phillies as provided herein, The Phillies, for the purposes hereof, shall not otherwise be deemed to have exclusive use of the Sports Facility. It is the intent of the parties that during the entire term of this Agreement, the use of the Sports Facility shall be allocated between a public and private use in a manner that assures that the taxability of the Sports Facility for ad valorem and other similarly applicable taxation, if any, will be at the lowest possible level. 10. Section 20.1.2 is amended to delete the phrase "by February 15, 2001." 11. Section 20.1.3 is restated in its entirety, to read in full as follows: 20.1.3 The parties shall, by no later than June 15, 2002, have agreed upon a detailed Scope of Work, an initialed copy of which shall become Exhibit H to the Development Agreement. C. Amendments to the Training Facility Agreement. The Training Facility Agreement is hereby amended in the following - and only in the following - specific respects: 1. All references therein to the "Baseball Training Facility Lease Agreement" are changed to refer to the "Baseball Training Facility Use Agreement." 2. Section 1.2 is amended to restate the initial portion of its second sentence, to read as follows: "The parties anticipate that, pursuant to the Agreement for Development of Community Sports Complex between the City and The Phillies dated as of December 31,2000, as amended (the "SFDA"),...." 2004." 3. Section 2.4 is amended to change "January 1, 2003" to "January 1, 4. Section 6 is restated in its entirety, to read in full as follows: 5. Ooeratin/! Exoense Reimbursement. From and after the Commencement Date, The Phillies shall make the following payments to the City, to reimburse the City for the expenses associated with the operation of the Demised Premises: (a) $204,000 per calendar year during the Initial Term, payable by July 31 st 14 COMMUNITY SPORTS COMPLEX AMI!NDATORY AGREEMeNT thereof; and (b) $1 per calendar year during any renewal term pursuant to Section 3.3, payable by July 31 st thereof. 6. Section 7.1 is amended to delete its second sentence in its entirety. 7. Section 19.27 is restated in its entirety, to read in full as follows: 19.27. Use; Ad Valorem Taxation. During the entire term of this Agreement, The Phillies shall have exclusive use of the Sports Facility for those periods which The Phillies use the Sports Facility as permitted by Section 5.1 of this Agreement. Those periods of time when the Sports Facility is subject to the sublease as set forth in Section 20 hereof and the period of any Disaster Staging shall be deemed public use for the purposes hereof, but otherwise subject to the terms of this Agreement. The scheduling of the use of the Sports Facility, other than for the uses by The Phillies permitted by Section 5.1 of this Agreement, will be determined jointly by The Phillies and the City and as provided herein; provided, however, that The Phillies shall have ultimate scheduling priority as to those uses permitted by Section 5.1 of this Agreement. It is the intent of the parties that during the entire term of this Agreement, the use of the Sports Facility shall be allocated between a public and private use in a manner that assures that the taxability of the Sports Facility for ad valorem and other similarly applicable taxation, if any, will be at the lowest possible level. phrase: priority." 8. The penultimate sentence of Section 20.1 is amended to delete the "...except for Bomber Stadium, as to which the City shall have scheduling 9. Section 20.2 is amended to replace the word "rent" with the word "reimbursement. " 1 O. Section 20.4 is deleted in its entirety and Sections 20.5 and 20.6 are respectively renumbered as Sections 20.4 and 20.5. 11. Exhibit A is amended to exclude from the Demised Premises the land described in Exhibit "A-I" to this Amendatory Agreement. D. Miscellaneous. 1. Any Phillies Event of Default and any City Event of Default, as a result of the failure of either party to meet any deadlines set forth in the Documents or in Schedule A to the Letter Agreement is waived and, notwithstanding that waiver, neither party has declared an Event of Default against the other as of the Effective Date. 15 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT 2. To the extent that any time period for performance provided for in the Documents or in the Letter Agreement has elapsed or expired, which would have resulted in an Event of Default by either party, such time period shall be tolled and otherwise extended as provided in this Amendment. 3. The Letter Agreement is superseded by this Amendment in its entirety. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Countersigned: --It- 1A--- Brian J. Aungsiu. Mayor-Comrn sioner T~:EARWATER' FLORIDA -ny, .~ illiam B. Home, II City Manager E~ as ro torm: Pamela K. Akin City Attorney Attest: ).. &~~fk~~~ ~ C?euL r~toudeau . ~=r City Clerk '. THE PHILLIES By: Da~d P. Mo~tgomc~ General Partner 16 COMMUNITY SPORTS COMPLEX AMENDATORY AGREEMENT PROJECT SITE LEGAL DESCRIPTIONS The legal description labeled "Primary Site," as set forth below, has been prepared without benefit of a final field survey of said Primary Site (or the Home Depot Site or Bomber Field comprising said Primary Site). The parties agree that should a final field survey of the Primary Site (including surveys of the Home Depot Site and Bomber Field) disclose any errors or discrepancies in the legal description of the Primary Site set forth below, they will appropriately modify and amend the Primary Site legal description to correct any such errors or discrepancies disclosed by such final field survey. Primary Site: Home Depot Site: Lot 1, THE CLEARWATER COLLECTION SECOND REPLAT, according to the plat thereof recorded in Plat Book 107, pages 24 and 25, Public Records of Pinellas County, Florida. TOGETHER WITH rights of ingress and egress as reserved in Warranty Deed recorded in Official Records Book 1479, page 95, Public Records of Pinellas County, Florida. TOGETHER WITH non-exclusive easements for ingress and egress, the passage and parking of vehicles, the passage and accommodation of pedestrians, separate and common utility lines, construction, reconstruction, development, erection, removal and maintenance of building components and other matters over, on and under the land described in, and all as more particularly created, defined, located and limited in: (1) that certain Operation and Reciprocal Easement Agreement recorded in Official Records book 6440, page 2013; (2) Amendment to and Ratification of Operation and Reciprocal Easement agreement recorded in Official Records Book 6735, page 217; (3) Third Amendment to an Operation and Reciprocal Easement agreement recorded in Official Records Book 6921, page 129; (4) unrecorded Third Amendment dated July 17, 1990, as referred to in the Fourth Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7541, page 849 which was re-recorded in Official Records Book 7561, page 2125; (5) Fourth Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7541, page 849 which was re-recorded in Official Records Book 7561, page 2125; and (6) Fifth Amendment to Operation and Reciprocal Easement Agreement recorded in Official Records Book 9664, page 451, Public Records of Pinellas County, Florida; TOGETHER WITH non-exclusive easement rights as granted by Parking and Driveway Easement recorded in Official Records Book 6440, page 2002, as amended by Amended Parking and Driveway Easement recorded in Official Records Book 6735, page 212, Public Records of Pine lIas County, Florida. EXHIBIT "A" 1 TOGETHER WITH a non-exclusive easement as described in that certain Drainage Easement Agreement recorded in Official Records Book 6618, page 2190, Public Records of Pine lIas County, Florida. LESS AND EXCEPT those portions of the above easement properties which lie within the properties taken, in fee simple, designated as Parcels 111 and 123 by Eminent Domain Suit No. 99-4965-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10598, page 2406; Stipulated Order of Taking & Final Judgment recorded in Official Records Book 10714, page 617; and stipulated Order of Taking and final Judgment recorded in Official Records Book 10714, page 620; Stipulated Order of Taking and Partial Final Judgment recorded in Official Records Book 10714, page 624; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 628; Order of Taking recorded in Official Records Book 10741, page 2041; Stipulated Final Judgment recorded in Official Records Book 11611, page 1495 and Amended Order of Taking and Stipulated Final Judgment recorded in Official Records Book 11704, page 1408, Public Records of Pine lIas County, Florida. LESS AND EXCEPT those portions of the above easement properties which lie within the properties taken, in fee simple, designated as Parcel 119 by Eminent Domain Suit No. 99-5089-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10604, page 2207; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10662, page 353 and Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10874, page 2276, Public Records of Pine lIas County, Florida. LESS AND EXCEPT that portion of said Lot 1 taken, in fee simple, designated as PARCEL 120 by Eminent Domain Suit No. 99-4965-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10598, page 2406; Stipulated Order of Taking & Final Judgment recorded in Official Records Book 10714, page 617; and Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 620; Stipulated Order of Taking and Partial Final Judgment recorded in Official Records Book 10714, page 624; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 628; Order of Taking recorded in Official Records Book 10741, page 2041; Stipulated Final Judgment recorded in Official Records Book 11611, page 1495 and Amended Order of Taking and Stipulated Final Judgment recorded in Official Records Book 11704, page 1408, Public Records of Pine lIas County. EXHIBIT" A" 11 Primary Site (continued): Bomber Field: Commence at the Northeast comer of Lot 1, The Clearwater Collection Second Replat as recorded in Plat Book 107, Pages 24 and 25, of the Public Records of Pinellas County, Florida; thence N 89050'51" W, 6.27 feet to the Point of Beginning; thence N 89050'51" W, 993.48 feet; thence N 00043'26" E, 436.73'; thence S 89050'51" E, 102.60 feet; thence S 66054'12" E, 114.96 feet; thence S 89050'51" E, 790.19 feet; S 00054'50" W, 311.95 feet; thence S 05024'50" W, 79.90 feet, to the Point of Beginning. EXHIBIT" A" 111 Collateral Site: Parcell (Parking Lot Parcel): A parcel of land within the Southwest 14 of the Southeast 14 of Section 7, Township 29 South, Range 16 East, Pinellas County, Florida and being further described as follows: Commence at the Southwest comer ofthe Southeast 14 of said Section 7; thence along the West line of said Southeast 14 North 00 041 '47" East, for 50.00 feet to the North right-of- way line of Drew Street; thence along said right-of-way line South 89040'19"East for 542.36 feet to the Point of Beginning; thence leaving said line North 00041 '47" East, for 435.00 feet; thence South 89040'19" East, for 761.22 feet to the West right-of-way line of Old Coachman Road; thence along said right-of-way line South 00047'54" West, for 435.00 feet to the intersection with said North right-of-way of Drew Street; thence along said right-of-way line North 89040'19" West for 760.45 feet to the Point of Beginning. Parcel 2 (Baseball and Soccer Fields Parcel): A parcel of land within the Southwest 14 of the Southeast 14 of Section 7, Township 29 South, Range 16 East, Pinellas County, Florida and being further described as follows: Commence at the Southwest comer of the Southeast 14 of said Section 7; thence along the West line of said Southeast 14 North 00041'47" East, for 485.00 feet to the Point of Beginning; thence continue along said line North 00041'47" East, for 823.27 feet to the South right-of-way line Sharkey Road (CR 289); thence along said right-of-way line South 89053'02" East, for 1,305.10 feet to the intersection with the West right-of-way line of Old Coachman Road; thence along said right-of-way line South 00047'54" West, for 828.12 feet; thence along said right-of-way line North 89040'19" West, for 1,303.58 feet to the Point of Beginning. EXHIBIT "A" IV EXHIBIT "A-1" PROJECT SCHEDULE Below is the project schedule as it can be determined to date. The project schedule is subject to update, change or adjustment, by the parties, upon the completion of design work and as other such information is obtained through the development of the project. Upon any such changes being approved then this Exhibit "G" will be amended, revised or replaced to reflect such changes. April 02 - October 02 Design work on stadium May 02 - June 15 Survey Work Completed June 15, 2002 Scope of Work Finalized June 30, 2002 Selection of Contactor June 30, 2002 City Determination Date that Infrastructure Improvements Cost Does not Exceed $300,000 July 1, 2002 Project Site Acceptability Determination Date September 2002 City Site Work Commences September 30, 2002 City Site Work Complete October 1, 2002 Conditions Satisfaction Date October 1, 2002 Bond Issuance Date October 1, 2002 Execute Memorandum of Development Agreement October 1, 2002 Public Source Project Funding Deadline October 02 - Jan 03 Bidding and Procurement November 1, 2002 Commencement Date - Groundbreaking Nov 02 -Jan 04 Construction of Sports Complex EXHIBIT "G" Nov 02 - Feb 03 Infrastructure and Collateral Site Design and Bidding Feb 03 - Jan 04 Infrastructure and Collateral Site Construction Jan. 04 - Feb. 04 Occupancy of Community Sports Complex ITEMIZATION OF INFRASTRUCTURE IMPROVEMENTS This is the Itemization ofInfrastructure Improvements contemplated by Section 6.01 of the Agreement for Development Community Sports Complex, by and between the City of Clearwater, Florida, and The Phillies, dated March 1,2001. This itemization includes those Infrastructure Improvements identified by the City as of March 1,2001, and is subject to change by the parties as provided in the Agreement. Upon any such changes being approved then this Exhibit "I" will be amended, revised or replaced to reflect such changes. . Widen Coachman Road as necessary to allow automobile access to the Primary and Collateral Sites without impeding traffic flow. . Widen Drew Street as necessary to allow automobile access to the Primary and Collateral Sites without impeding traffic flow. · Construct five-foot wide sidewalk on each side of Old Coachman Road from Drew Street to Sharkey Road. · Provide striped pedestrian crosswalks at the Sharkey Road / Old Coachman Road intersection, and a pedestrian access points to the project site. · Construct all infrastructure improvements determined to be necessary to support the operation ofthe Community Sports Complex. EXHIBIT "I"