SPORTS FACILITY USE AGREEMENT
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SPORTS FACILITY
USE AGREEMENT
by and among
THE CITY OF CLEARWATER, FLORIDA
and
THE PHILLIES
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TABLE OF CONTENTS
Section Page
1. Recitals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Club. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Economic and Industrial Development ........................... 1
1.3 Intergovernmental Agreement. ................................. 1
1.4 Spring Training Season. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 "Affiliate" or "Affiliated ...................................... 2
2.2 "Civic Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 "Claim" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 "Club" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 "Commercial Space" ......................................... 2
2.6 "Consulting Engineer" ........................................ 3
2.7 "CPI Index" ................................................ 3
2.8 "CPI Adiustment" ........................................... 3
2.9 "Concession Facilities" ....................................... 3
2.10 "Default". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.11 "Defaulting Party" ........................................... 3
2.12 "Default Rate" ..............................................3
2.13 "Disaster Staging Uses" .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.14 "Environmental Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.15 "Event"... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.16 "Expedited ADR" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.17 "Fields". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.18 "Force Maieure" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.19 "Grapefruit League" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.20 "Home GaIlle" .............................................. 4
2.21 "Improvements". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.22 "Legal Requirements" ........................................ 5
2.23 "Luxury Suites" ............................................. 5
2.24 "Minor League Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.25 "MLB". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.26 "MLB Agreements" .......................................... 5
2.27 "Non-Defaulting Party" ....................................... 6
2.28 "Office Space" .............................................. 6
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2.29 "Offset Amount" ............................................ 6
2.30 "Partnership Event" .......................................... 6
2.31 "Person". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.32 "Phillies Event" ............................................. 6
2.33 "Phillies Exclusive Use Areas" ................................. 6
2.34 "Phillies Maintenance Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.35 "Phillies Possessory Tax Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.36 "Phillies Users" .............................................6
2.37 "Phillies Utilities Share" .....;................................ 6
2.38 "Public Uses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.39 "Revenue Event" ............................................7
2.41 "Scope of Work .............................................7
2.42 "SFDA". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.43 "Site".. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.44 "Site Plan" ................................................. 7
2.45 "Sports Facility" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.46 "Sports Facility Manager" ..................................... 7
2.47 "Spring Training Season" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.48 "Stadium"... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.49 "Term".. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1 fuitial Term. ......................... . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Rights of The Phillies Prior to Commencement Date. . . . . . . . . . . . . . . . . 8
3.3 Options to Renew. ...........................................8
3.4 Jack Russell Stadium Lease. ................................... 9
4. Certain Covenants of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Ownership of Sports Facility. .................................. 9
4.2 Delivery ofthe Sports Facility. ................................. 9
4.3 Home Field Commitment. ..................................... 9
4.4 Florida State League Commitment. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.5 Environmental Laws fudemnitv. ............................... 10
5. Use of Sports Facility. ...................................................10
5.1 Phillies Use. ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Public Uses. ............................................... 12
5.3 Limitations on Public Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.4 Partnership Events. ......................................... 13
5.5 Disaster Staging Uses. ........................................ 14
6. Use Fee. .............................................................. 14
6.1 Adjustment............................................... .14
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6.2 Offset. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Revenues from Partnership Events and Civic Events. . . . . . . . . . . . . . . . 15
7 .2 Naming Rights. ............................................ 16
7.3 Signage During Partnership and Civic Events. .................... 16
8. Operation of the Sports Facility. ........................................... 17
8.1 Operating Staff. ............................................ 17
8.2 Utilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.3 Parking.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.4 City Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9. Maintenance and Repair of Sports Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.1 Phillies Cleaning and Maintenance Obligations. . . . . . . . . . . . . . . . . . . . 18
9.2 City Maintenance. Repair etc. Obligations. . . . . . . . . . . . . . . . . . . . . . . . 19
9.3 Upgrading ofthe Sports Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.4 Sports Facility Manager. .....................................20
9.5 Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.6 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.7 Action by The Phillies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.8 Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
10. Alterations and Additions by The Phillies. ................................... 23
10.1 Minor Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.2 All Other Improvements. ..................................... 24
10.3 Ownership of Such Improvements. ............................. 24
lOA No Limitation. .............................................25
11. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.1 Possessory Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.2 Tax Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
12.1 Liability Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
12.2 Property Coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.3 General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
12.4 Remedies.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.5 Waiver of Subrogation. ...................................... 28
13. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
13.1 By The Phillies. ............................................29
13.2 By the City. ............................................... 30
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13.3 Procedure for Indemnification -- Third Party Claims. . . . . . . . . . . . . . . . 31
13.4 Procedure for Indemnification -- Other Claims. ...................32
14. Damage or Destruction. ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
14.1 Decision to Rebuild. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
14.2 Failure To Repair. ..........................................33
14.3 Phillies Option to Rebuild or Repair. ............................. 34
15. Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
15.1 Total Taking. ..............................................34
15.2 Partial Taking. .............................................34
15.3 Failure To Repair. ..........................................35
15.4 Phillies Option to Rebuild or Repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
16. Assignment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
16.1 Assignment by The Phillies. .................................. 36
16.2 Assignment by City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
17. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
17.1 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
17.2 Non-Defaulting Party's Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . 38
17.3 Cumulative Rights. .........................................38
17.4 Iniunctive Relief. ........................................... 39
17.5 Emergency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
18. Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
18.1 By the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
18.2 By The Phillies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
19. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
19.1 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
19.2 Consents.................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
19.3 Additional Instruments. ......................................41
19.4 Force Maieure. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
19.5 Notices.............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
19.6 No Joint Venture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
19.7 Governing Law. ............................................43
19.8 Construction ofthis Agreement. ...............................43
19.9 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
19.10 Entire Agreement. ..........................................43
19.11 Severability................................................ 44
19.12 Captions. .................................................44
19.13 Time of Essence. ...........................................44
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19.14 Interest on Delinquent Amounts. ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
19 .15 Waivers................................................... 44
19.16 Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
19.17 Right of Offset. ............................................45
19.18 Attornevs' Fees. ............................................45
19.19 Amendment................................................ 45
19.20 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
19.21 Exhibits................................................... 45
19.22 Liability Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
19.23 Certain Disputes. ........................................... 45
20. Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
20.1 Conditions Precedent to Parties' Rights and Obligations. . . . . . . . . . . . . 46
20.2 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
20.3 Satisfaction Date ...........................................47
20.4 Further Condition Relating to Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 47
21. Marketing Programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
EXHIBITS
EXHIBIT A
Expedited ADR
v
SPORTS FACILITY USE AGREEMENT
THIS SPORTS FACILITY USE AGREEMENT (the "Agreement") is made and entered into
as of December 31, 2000, by and among THE CITY OF CLEARWATER, FLORIDA, a municipal
corporation ("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 Economic and Industrial Development. The City may in accordance with applicable
Florida law engage in economic and industrial development activities (such as those contemplated
by this Agreement) which improve the condition of the residents and businesses of the City, which
contribute to the overall economic condition ofthe City as a whole, and which may provide jobs for
residents of the City as well as providing recreational and entertainment activities for the use and
enjoyment of the residents of the City.
1.3 Intergovernmental Agreement. The City and The Phillies believe that conducting The
Phillies' MLB Spring Training Season games in Clearwater will create significant economic,
recreational, cultural and other benefits to Clearwater and to Pinellas County. For the foregoing
reasons, the City is concurrently herewith entering into an intergovernmental agreement with Pinellas
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County for funding of a portion of the costs of the development of the Sports Facility as
contemplated by the SFDA. In addition, the City has represented to The Phillies and The Phillies
acknowledge that the City has represented to it that the City is unable to finance the public sector
costs of the Sports Facility but for the assistance and cooperation of and providing of funds by other
Public bodies.
1.4 Spring Training Season. The Phillies is willing to conduct its home Spring Training
Season activities at the Sports Facility, on the terms set forth in this Agreement.
1.5 Public Interest. The City finds that this Agreement is in the public interest and that
the public funds are to be expended for a public purpose.
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 "Civic Event" means an event (which may, but need not, be a Revenue Event) held
at the Sports Facility which is for charitable, community or civic purposes, the net ticket revenues
from which, if any, may be distributed only to a charitable, community or civic organization.
2.3 "Claim" shall have the meaning set forth in Section 13.3.
2.4 "Club" means the MLB franchise owned by The Phillies, or successors thereto.
2.5 "Commercial Space" means the space and facilities in the Sports Facility that are
described as such in the Scope of Work.
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2.6 "Consulting Engineer" means a qualified consulting engineer mutually selected and
equally paid by the parties, as provided in Section 9.2 hereof.
2.7 "CPI Index" means the Consumer Price Index for Urban Wage Earners and Clerical
Workers specified for "All Items" for Tampa, St. Petersburg and Clearwater, Florida published by
the Bureau of Labor Statistics of the United States Department of Labor (1982 - 84 =100). If the
method by which such index is calculated is hereafter substantially changed, appropriate adjustments
will be made by the parties to produce results approximating as nearly as possible the results which
would have been obtained absent such change. A change in the base year shall be deemed such a
substantial change. If the index is no longer published or otherwise becomes unavailable to the
public, a reasonable substitute index shall be mutually agreed upon by the City and The Phillies.
2.8 "CPI Adjustment" shall have the meaning set forth in Section 6.1.
2.9 "Concession Facilities" means these portions of the Sports Facility (other than the
Commercial Space), used for the preparation, storage, display and sale of food, beverages,
merchandise and other products at events.
2.10 "Default" shall have the meaning set forth in Section 17.1.
2.11 "Defaulting Party" shall have the meaning set forth in Section 17.1.
2.12 "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.
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2.13 "Disaster Staging Uses" shall have the meaning set forth in Section 5.5.
2.14 "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 with, 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 ofthe environment.
2.15 "Event" means a Phillies Event, a Partnership Event or a Civic Event.
2.16 "Expedited ADR" means the Expedited Alternative Dispute Resolution procedures
attached to this Agreement as Exhibit A.
2.17 "Fields" means collectively the three baseball playing fields within the Sports Facility.
2.18 "Force Maieure" shall have the meaning set forth in Section 19.4.
2.19 "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.
2.20 "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
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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.
2.21 "hnprovements" means the Stadium, and all other improvements to real property now
or hereafter located on the Site, including, without limitation, all improvements described in the
Scope of Work and the Site Plan.
2.22 "Legal Requirements" means all federal, state, county, municipal and other
govemmentallaws (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.
2.23 "Luxury Suites" means the private suites identified as such on the Scope of Work.
2.24 "Minor League Affiliate" means any minor league team which has a player
development agreement with or is an Affiliate of The Phillies.
2.25 "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.
2.26 "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,
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
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requirements which may govern The Phillies and/or with respect to which The Phillies is required
to comply.
2.27 "Non-Defaulting party" shall have the meaning set forth in Section 17.1.
2.28 "Office Space" means the space in the Sports Facility provided to The Phillies for
office purposes, as shown in the Scope of Work.
2.29 "Offset Amount" means for each calendar year during the Term the sum of (i) all
reimbursements by The Phillies' relating to field maintenance supplies, as contemplated by Section
9.1; (ii) The Phillies Utilities Share; and (iii) all Sports Facility operating and maintenance labor
costs paid by The Phillies.
2.30 "Partnership Event" shall have the meaning set forth in Section 5.4.
2.31 "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.
2.32 "Phillies Event" means an Event conducted by or for The Phillies at the Sports
Facility, including without limitation MLB and Minor League baseball games, but excluding
Partnership Events and Civic Events.
2.33 "Phillies Exclusive Use Areas" means the Office Space and any other spaces (such
as the weight training rooms) identified as such in the Scope of Work.
2.34 "Phillies Maintenance Obligations" shall have the meaning set forth in Section 9.1.
2.35 "Phillies Possessory Tax Share" shall have the meaning set forth in Section 11.1.
2.36 "Phillies Users" shall have the meaning set forth in Section 5.
2.37 "Phillies Utilities Share" shall have the meaning set forth in Section 8.2.
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2.38 "Public Uses" shall have the meaning set forth in Section 5.2.
2.39 "Revenue Event" means any use ofthe Sports Facility for concerts, plays, pageants
or other revenue producing events unrelated to MLB or minor league baseball, for which a paid
admission is required to attend.
2.40 "Satisfaction Date" shall have the meaning set forth in Section 20.3.
2.41 "Scope of Work" means the schematic drawings and program narrative set forth in
an Exhibit to the SFDA.
2.42 "SFDA" means the Sports Facility Development Agreement to be entered into
between the City and The Phillies, pursuant to which The Phillies will construct the Sports Facility
on the Site on behalf ofthe City.
2.43 "Site" means the land area described in the Site Plan.
2.44 "Site Plan" shall mean the Exhibit to the SFDA designated as the Site Plan.
2.45 "Sports Facility" means the Site and all Improvements now or hereafter located on
it as described in the Scope ofW ork and the Site Plan and all personal property used in connection
therewith other than personal property owned by The Phillies.
2.46 "Sports Facility Manager" shall mean City's Park & Recreation Director or his or her
designee.
2.47 "Spring Training Season" shall mean the period in each calendar year in which spring
training activities are customarily conducted for MLB teams, which period currently commences on
or about February 15 of each year and ends on or about March 31 of each year.
2.48 "Stadium" means the baseball stadium building located in the Sports Facility where
Home Games are to be played by The Phillies, including (in addition to the stadium building itself)
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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
Scope of Work and the Site Plan.
2.49 "Term" shall have the meaning set forth in Section 3.1.
3. Term.
3.1 Initial Term. The initial term ofthis Agreement shall commence ("Commencement
Date") on the later of (i) January 1, 2003 or (ii) the date on which the entire Sports Facility is
"Complete" (as defined in the SFDA) and shall end on December 31 ofthe year in which occurs The
Phillies' twentieth full Spring Training Season at the Sports Facility. The "Term" shall mean the
initial term as such term may be extended, renewed or terminated as provided for in this Agreement.
3.2 Rights of The Phillies Prior to Commencement Date. This Agreement becomes
effective as of the date hereof. Prior to the Commencement Date, The Phillies shall have all rights
hereunder necessary or convenient to enable The Phillies to prepare for its operations at the Sports
Facility during the Term and to the exercise of the approvals and consents granted to it hereunder
and under the SFDA, including, without limitation, the right to enter onto the Sports Facility. The
Phillies' rights, obligations, and duties pursuant to Section 13 shall be applicable to any such
activities of The Phillies at the Sports Facility prior to the Commencement Date.
3.3 Options to Renew. 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. 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
8
hereunder. If The Phillies duly exercise that option and if the parties hereto shall thereafter so agree,
this Agreement may be extended for three additional five-year periods, on such terms as may be
contained in such future agreements to extend.
3.4 Jack Russell Stadium Lease. The lease between the City and The Phillies relating to
Jack Russell Stadium, as heretofore and hereafter amended, shall, without further act or deed, end
on the Commencement Date, as if the Commencement Date had been expressly fixed in that lease
as the last day of the term thereof.
4. Certain Covenants of the Parties.
4.1 Ownership of Sports Facility. The City covenants and agrees that, at all times during
the Term, the Sports Facility will be owned by the City, with complete and sufficient right to make
use ofthe Sports Facility available to The Phillies on the terms and with the rights herein provided,
subject only to restrictions of record as ofthe date hereof as reflected in the title report delivered by
the City pursuant to the SFDA. This Agreement does not create or grant any real property interest
or similar right, title or interest in the Sports Facility to The Phillies or any of its Affiliates.
4.2 Delivery of the Sports Facility. Subject to the timely completion of all actions
required of The Phillies under the SFDA, the City covenants and agrees to make the Sports Facility
available for The Phillies' use on the Commencement Date, in a new, clean and completed condition,
and that the Sports Facility, in its condition as existing on the Commencement Date, shall be in full
compliance with all applicable Legal Requirements then in effect, all in accordance with the SFDA.
4.3 Home Field Commitment. Subject to Force Majeure and the requirements of any
MLB Agreements and so long as City is not in Default, The Phillies covenants and agrees that it
shall, during the Term, utilize the Stadium as its "home field" for all Home Games; provided,
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however, nothing contained herein shall limit The Phillies' right to be occasionally designated and
act as home team for games at venues other than the "home field" of either participating team (recent
examples of which have been games played in Las Vegas and Seattle).
4.4 Florida State League Commitment. Subject 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 will during the Term cause a Minor League Affiliate in the Florida State League to play its
regularly scheduled home games at the Sports Facility during the first three full Florida State League
seasons following the commencement ofthe Term.
4.5 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 Sports Facility 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.
5. Use of Sports Facility. The exclusive right to use the Sports Facility 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.
5.1 Phillies Use. The Phillies Users may use the Sports Facility only for the following
purposes:
5.1.1 For all MLB Spring Training Season operations, including without limitation
playing Home Games, so-called "B games" and intra-squad games and training and player
development activities.
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5.1.2 For all Minor League spring training season operations, including without
limitation playing home games and intra-squad games and training and player development
activities.
5.1.3 For all 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 F or all Florida Instructional League operations, including without limitation
home games and intra-squad games and training and player development activities.
5.1.5 For all MLB and Minor League "mini-camp" operations, including without
limitation intra-squad games and training and player development activities.
5.1.6 For all baseball fantasy camp, youth camp, youth instructional and like
activities.
5.1.7 To use the Office Space for any office uses, in the pursuit of any aspect of the
business and operations of the Phillies Users whatsoever.
5.1.8 To use the Commercial Space as a restaurant/sports bar, souvenir/sporting
goods store and/or other synergistic uses open to the general public.
5.1.9 For Phillies Events.
5.1.10 For Civic Events sponsored by The Phillies, alone or with the City.
5.1.11 For any other lawful purpose directly or indirectly related to any of the
foregoing uses.
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5.2 Public Uses. Subject to Section 5.3, City shall have the right to authorize use ofthe
Sports Facility for these, and only these purposes (the "Public Uses"):
5.2.1 For baseball and softball games played without an admission charge by St.
Petersburg Junior College, Clearwater's two public high schools and youth baseball and like
organizations; provided, however, that the user shall reimburse The Phillies for the cost of The
Phillies Maintenance Obligations allocated to such games played other than by St. Petersburg Junior
College and Clearwater High School.
5.2.2 For any other Civic Events proposed by the City and approved by The
Phillies, such approval not to be umeasonably withheld.
5.2.3 For Partnership Events, at the rate of up to twelve per calendar year during
the Term.
5.2.4 For Disaster Staging Uses.
5.3 Limitations on Public Uses. The Public Uses shall be subject to the following
limi tati ons :
5.3.1 Public Uses shall be limited to those areas of the Sports Facility that are
necessary and appropriate therefor in each instance and in no event shall use be made ofthe Phillies
Exclusive Use Areas (of which The Phillies are hereby granted the exclusive right to use). Whether
the Commercial Space and/or the Concession Facilities shall be operated during Events which
constitute Public Uses (any such operations to be effected solely by The Phillies and/or any
concessionaire of The Phillies) shall be determined by The Phillies at its discretion; provided,
however, that when requested by the City in respect of any Events which constitute the Public Uses
where attendance is reasonably projected to exceed 200, Concession Facilities shall be opened by
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The Phillies, to the extent that The Phillies deem appropriate, based on a reasonable estimate of
attendance.
5.3.2 The City shall make mutually satisfactory arrangements in advance with The
Phillies, for The Phillies to provide (but at the expense of the City) appropriate staffing and
operations during each Event which constitutes a Public Use, such as ticket takers, ushers, parking
attendants, food and beverage preparers and servers, security and paramedical personnel.
5.3.3 Each Public Use may be scheduled only at a time that is reasonably acceptable
to The Phillies, it being understood that each of the uses specified in Sections 5.1.1 through 5.1.6
inclusive shall have absolute scheduling priority over every Public Use, except Disaster Staging
Uses.
5.3.4 Each Public Use (other than those provided for in Section 5.2.1 and 5.2.4)
shall be subject to The Phillies' prior approval, which may be withheld by The Phillies only ifin its
reasonable judgment conducting the Public Use at the Sports Facility would risk damage to the
playing fields or cause unreasonable wear and tear to structures or, in the reasonable judgment of
The Phillies, be inconsistent with the image ofMLB and The Phillies.
5.4 Partnership Events. The City shall be responsible at its expense to book, manage and
conduct significant Revenue Events at the Sports Facility, at a rate of at least six but not more than
twelve per calendar year throughout the Term (each, a "Partnership Event"). For purposes hereof,
a "significant Revenue Event" shall mean an Event, the reasonably anticipated net revenues from
which are expected to be not less than $15,000 (in 2003 dollars, subsequently adjusted by the CPD.
The Phillies shall be responsible for ticket taking, food and beverage, merchandise and broadcasting
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operations only, at prices set by The Phillies subject to the City's approval, not to be unreasonably
withheld.
5.5 Disaster Staging Uses. The City may, in each instance of actual or imminently
threatened natural disaster, use the Sports Facility 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 field or any
other element ofthe Sports Facility 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 ofthe Sports Facility to The Phillies immediately following the
end of the disaster.
6. Use Fee. From and after the Commencement Date, The Phillies shall pay, in arrears, a use
fee to the City at the rate of $70,000 per calendar year during the Term, subject to adjustment
pursuant to Section 6.1 (as so adjusted, the "Use Fee") and to offset pursuant to Section 6.2. The
Use Fee for each calendar year during the Term shall be payable by March 31 st ofthe following year.
6.1 Adiustment. The Use Fee for the second and each subsequent full calendar year
during the Term shall be subject to an adjustment (a "CPI Adjustment"), for any change in the CPI
Index between that for December of the year prior to the first such full calendar year and that for
December of the year prior to the calendar year with respect to which the calculation is being made.
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6.2 Offset. The Phillies may offset against and deduct from the Use Fee payable in
respect of any whole or partial calendar year during the Term, the Offset Amount attributable to that
period.
7. Revenues. Except as otherwise specifically provided in this Section 7, The Phillies alone
shall be entitled to retain all revenues generated on and from the Sports Facility during the Term
from all sources whatsoever, including by way of illustration but not limitation, all ticket, premium
seating, luxury suite, food and beverage, signage, merchandise, broadcasting, sponsorship and
parking revenues and all revenues from the operation of the Commercial Space and fantasy camps.
7.1 Revenues from Partnership Events and Civic Events. All ticket, food and beverage,
merchandise, parking and broadcasting revenues generated on and from the Sports Facility
(excluding only revenues derived from the Luxury Suites and the Commercial Space) attributable
to each Partnership Event and each Civic Event, net of the direct incremental cost to The Phillies of
operating and maintaining the Sports Facility (excluding the Luxury Suites and the Commercial
Space) attributable solely to such use (which shall not include administrative or overhead costs or
the like or any utility charges or other costs that would have been incurred irrespective of such use)
will be: (i) in the case of Partnership Events, shared equally by The Phillies and the City; and (ii)
in the case of Civic Events, will be retained by The Phillies (except for any net ticket revenues,
which shall be distributed by The Phillies to the appropriate charitable, community or civic
organization), in each case within thirty days following the Event. The Phillies shall institute a
method of accounting for the collection and calculation of the net revenues collected in respect of
Partnership Events and Civic Events and shall furnish to the City appropriate accounting statements
in respect of such Events, which shall be prepared in accordance with generally accepted accounting
15
principles. The City may, upon reasonable notice and during normal business hours, examine,
inspect and copy the books and records of The Phillies pertaining to such net revenues and, at its
own expense, cause an audit to be performed of such pertinent books and records.
7.2 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
Sports Facility" or "DEF Stadium") or (ii) portions (e.g. "GHI Bullpen" or "JKL Pavilion") of the
Sports Facility and to retain all net proceeds therefrom. 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 ofthe naming rights package
and not separately priced, then the fair market value of such additional benefits shall also be
deducted. The City shall have the right to disapprove any such name only, if in the City's reasonable
judgment, such name is inconsistent with a wholesome public image for the Sports Facility. The net
proceeds from any naming of the whole Stadium or the Sports Facility referred to in clause (i) (but
not from any naming of portions thereof, as referred to in clause (ii)) shall be shared as follows:
two-thirds to The Phillies and one-third to the City.
7.3 Signage During: Partnership and Civic Events. Temporary signs identifying and
promoting participants in or sponsors of Partnership Events or Civic Events may be displayed during
the Event, provided, however, that: (i) no such signage shall relate to a product, service or Person
which competes with the Person (or that one Person from time to time designated by The Phillies,
at any time or times when there may be more than one such Person) for which all or any part of the
Sports Facility is named or with that Person's products or services or with any products or services
16
designated by The Phillies as falling within either of up to two exclusive product categories (e.g. soft
drinks, beer, banking etc) for the Sports Facility; (ii) no such display may obscure fixed signage then
located in the Sports Facility; and (iii) the City shall be responsible at its expense for the removal
thereof immediately upon conclusion of the Event.
8. Operation ofthe Sports Facility. Subject to Section 5.5, The Phillies shall have the sole right
and obligation to operate the Sports Facility 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 Sports Facility during the Term will be contracted for and either
paid by the City or shall be provided by the City. The Phillies will reimburse the City for twenty- five
percent of the total cost thereof as incurred by the City and at the rate charged to similar users, in the
case of utilities supplied by the City, payable within thirty days of each monthly bill therefor from
the City, accompanied by evidence of payment and/or of such rates so charged (such twenty-five
percent reimbursements are herein referred to as the "Phillies Utilities Share")
8.3 Parking. In addition to operating all parking areas at the Sports Facility, The Phillies
shall have the right to make arrangements for offsite parking for Events at the Sports Facility,
including without limitation at the Carpenter Sports Facility, S1. Petersburg Junior College and under
the Florida Power Corporation right of way. For each Home Game, The Phillies will engage such
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civic organization that the City shall propose (subject to The Phillies' approval, not to be
unreasonably withheld) to staff the public parking areas at the Sports Facility and at any utilized
offsite parking areas. The Phillies will pay to that organization for such services an honorarium of
$1,250 per Game, which figure shall be subject to a CPI Adjustment.
8.4 City Services. City will provide all appropriate City services at appropriate levels of
coverage for all Events, including without limitation, police surrounding the Sports Facility for
security and traffic control purposes and to prevent scalping and unauthorized sale of merchandise
at the Sports Facility and paramedical services. (For this purpose, "scalping" shall mean the selling
of tickets for more than $1 above face amount, and the "unauthorized sale of merchandise" shall
mean the sale of goods by a Person who has not been authorized by The Phillies to make such sales
and the sale of unlicensed goods, whenever a license is required for such sale to be given by The
Phillies, MLB or other holders of the marks embodied on such goods.) The Phillies will provide
necessary security and paramedical services within the Sports Facility.
9. Maintenance and Repair of Sports Facility. The following prOVISIons govern the
maintenance and repair of the Sports Facility.
9.1 Phillies Cleaning and Maintenance Obligations. The Phillies shall have the obligation
to keep the Sports Facility 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, (ii) the Phillies Exclusive Use Areas, (iii) the Luxury Suites, and (iv)
the Commercial Space (together, the "Phillies Maintenance Obligations"). The City shall acquire
for and supply to The Phillies all field care (e.g. clay, sod, sand, fertilizer and chemicals) and other
18
supplies necessary for The Phillies to discharge the Phillies Maintenance Obligations relating to the
playing fields, and The Phillies shall reimburse the City for its actual out-of-pocket costs therefor.
Notwithstanding anything herein to the contrary, any City employee providing City Services to the
Sports Facility shall be operating under the direction and control of the City, and shall be subject to
any applicable City rule, regulation or policy, provided however, that The Phillies may directly
engage City employees during the off-duty time, in which case such City employees shall be deemed
to operate under The Phillies control.
9.2 City Maintenance, Repair etc. Obligations. Except for The Phillies Maintenance
Obligations, the City shall have the obligation to provide all maintenance, repairs, restorations,
refurbishments and replacements, whether interior or exterior, structural or non-structural, routine
or extraordinary, ordinary or capital in nature, as shall be necessary to keep the Sports Facility clean,
safe and in good order, condition and repair, and in compliance with all applicable Legal
Requirements and in first class condition and up to first class MLB spring training stadium standards
at the time of reference, provided however, that (subj ect to Sections 14 and 15 hereof) this obligation
shall not operate to require the City to construct a new Sports Facility, or to substantially reconstruct
the Sports Facility during the Term hereof. 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 costs of the Consulting Engineer shall be borne equally by The Phillies
and the City. The determinations of the Consulting Engineer shall be conclusive on both the City
and The Phillies.
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9.3 Upgrading of the Sports Facility. The City shall from time to time, as needed,
upgrade, modernize and otherwise improve the Sports Facility so that during the Term of this
Agreement, the Sports Facility shall not only meet all applicable MLB standards but shall, in
addition, include that level of amenities and technological facilities as is comparable at the time of
reference to those of first class MLB spring training facilities of comparable age (such as Roger Dean
Stadium in Jupiter, FL, City of Palms Park in Ft. Myers, FL and Hohokam Stadium in Mesa, AZ).
Without limiting the generality of the foregoing, at such time as any technological improvements
(e.g., video rooms) have been incorporated in at least two of those three comparable MLB spring
training facilities, then the City shall install such technological improvements in the Sports Facility.
However, this provision shall not require the City to expend monies within the last five years ofthe
Term, unless The Phillies agree to (i) exercise the option to renew provided for in Section 3.3 hereof
(in which event, if necessary, the one-year notice period for exercising such option shall be waived),
or (ii) if the option to renew has already been exercised, The Phillies and the City agree to extend
the Term by at least five years.
9.4 Sports Facility Manager. The Sports Facility Manager shall be responsible for the
day-to-day oversight ofthe maintenance, repair and condition of the Sports Facility, 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 City's governing body.
9.5 Personnel. The City shall provide such level of qualified and properly trained
personnel to perform its obligations under Section 9.2.
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9.6 Capital Expenditures. 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, replacements and upgrades 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. 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.
9.7 Action by The PhiIlies. Without limiting The Phillies' rights under Section 17, if The
Phillies in good faith determines that any portion of the Sports Facility (excluding only the playing
fields) is not being maintained and/or repaired by the City in accordance with the standards and
requirements set forth in Sections 9.2, 9.3 and 9.6, 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:
9.7.1 Notice Practicable. If practicable, The Phillies shall give written 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:
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(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; if the City does so, The
Phillies shall not undertake such work itself.
(ii) Ifthe 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.
9.7.2 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
9.7), then The PhilIies may commence work to remedy the matter on an emergency basis and
prosecute the same diligently to completion.
9.7.3 Payment to The Phillies. The City shall promptly reimburse The Phillies on
demand for any amounts expended pursuant to this Section 9.7 (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
22
'-
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.
9.8 Surrender. At the termination ofthis Agreement, by lapse oftime or otherwise, The
Phillies shall surrender possession ofthe Sports Facility 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 Sports
Facility and restore any damage caused thereby, such removal and restoration to be performed prior
to the end of the Term or within sixty days following any earlier termination of this 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 Sports Facility. All obligations of The Phillies
under this Section shall survive the expiration ofthe Term or sooner termination ofthis 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 Phillies Exclusive Use Areas without City's approval, consisting of any work, installation,
23
construction or the like which does not require a permit from any federal, state or local governmental
agency (e.g., installation of additional shelving in the Office).
10.2 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 of the Sports Facility, without the prior written consent of the 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 Sports
Facility shall be presented to the Sports Facility Manager in written form and he shall act thereon
within a reasonably prompt time. Ifthe Sports Facility Manager gives his consent to The Phillies'
undertaking such work (which consent shall not be unreasonably withheld), the consent shall be
deemed conditioned upon The Phillies' acquiring any necessary permit to do so from applicable
governmental agencies, furnishing a copy thereof to 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 of the Sports Facility pursuant to this Agreement, other than that
which is so affixed to the Sports Facility 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 ofthis Agreement provided that The Phillies restore and repair any
damage caused by the removal.
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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 of the parties that the Sports Facility (land and
Improvements) 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 Sports
Facility 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 Sports Facility 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 City. Any such payments by The Phillies are herein referred to as the "Phillies
Possessory Tax Share."
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 Stadium or Sports
Facility-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 of the use ofthe Sports Facility 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
$5,000,000 per accident.
(iv) Garagekeepers legal liability coverage in the amount of$l,OOO,OOO.
12.1.2 City's Non-Property 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
Person/$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 ofthis
Agreement the following property related insurance:
12.2.1 Property insurance for 100% offull replacement value of the Sports Facility
(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 Site 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 Sports Facility.
12.2.3 City Property Self-Insurance or Self-Funding. Any provision 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 of the 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 vrn 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
furnished 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 ofthe
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.
12.5 Waiver of Subrogation. Each party hereby releases and relieves the other party, and
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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. If necessary, 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 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 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 Sports Facility.
13.1.2 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 marmer arising out of or in connection with any willful, wanton or grossly negligent act or
omission ofthe City or any Affiliate of City or any oftheir respective agents, officers or employees,
in connection with the operation or use of the Sports Facility 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 ofthe 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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or any oftheir respective 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.
13.3 Procedure for Indemnification -- Third Party Claims.
13.3.1 Promptly afterreceipt by an indemnified party under Sections 12.1 or 12.2 of
notice of a claim against it ("Claim"), such indemnified party shall, if a claim is to be made against
an indemnifying party thereunder, give notice to the indemnifying party of such Claim, but the
failure to notify the indemnifying party will not relieve the indemnifying party of any liability that
it may have to any indemnified party, except to the extent that the indemnifying party demonstrates
that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
13.3.2 If any Claim is made against an indemnified party and it gives notice to the
indemnifying party of such Claim, the indemnifying party will be entitled to participate in the
defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a
party to such Claim and the indemnified party determines in good faith that joint representation
would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the
indemnified party of its financial capacity to defend such Claim and provide indemnification with
respect to such Claim), to assume the defense of such Claim with counsel satisfactory to the
indemnified party and its insurers and, after notice from the indemnifying party to the indemnified
party of its election to assume the defense of such Claim, the indemnifying party will not, as long
as it diligently conducts such defense, be liable to the indemnified party under such Section for any
fees of other counselor any other expenses with respect to the defense of such Claim in each case
subsequently incurred by the indemnified party in connection with the defense of such Claim, other
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than reasonable costs of investigation. Ifthe 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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14. Damage or Destruction.
14.1 Decision to Rebuild. In the event that the Sports Facility or any part thereof is
damaged or destroyed by fire, flood or other similar or dissimilar cause whatsoever, the City shall
promptly commence and thereafter diligently proceed to repair and rebuild the Sports Facility to its
condition immediately prior to such damage or destruction, provided, however, if such damage or
destruction involves the entire Sports Facility or any substantial part thereof and occurs less than five
years prior to the end ofthe Term, the City may elect to terminate this Agreement unless The Phillies
agree to (i) exercise the option to renew provided for in Section 3.3 hereof (in which event, if
necessary, the one-year notice period for exercising such option shall be waived), or (ii) ifthe option
to renew has already been exercised, The Phillies and the City agree to extend the Term by at least
five years. In the event that such damage or destruction is of such an extent as would substantially
and adversely affect The Phillies' activities at the Sports Facility, the City shall use its best efforts
to provide to The Phillies the use of alternate first class MLB spring training facilities, in reasonable
proximity to the Sports Facility, on a basis that preserves to The Phillies the net benefit of the
economic terms of this Agreement and that affords business interruption protection to The Phillies
against lost revenues. Ifthe City meets the requirements ofthe next preceding sentence and has been
and remains in substantial compliance with its obligations under the first sentence of this Section
14.1, then The Phillies shall use those alternate facilities during the period of interruption and, for
each full Spring Training Season during the initial20-year portion of the Term hereofthat such use
continues, that initial term shall be extended by one year.
14.2 Failure To Repair. If the City is obligated to repair or rebuild the Sports Facility
under the provisions of this Section 14 and does not commence such repair or rebuilding within
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ninety days after the occurrence ofthe damage or destruction, or ifthe City commences such repair
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 Repair. 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 thereof by 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 Sports F acili ty 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 Site and Sports Facility; provided, however, that The Phillies shall have a claim to the
portion ofthe award in condemnation that represents compensation for the taking of the interest of
The Phillies under this Agreement, including without limitation its right to retain net revenues from
the operation thereof.
15.2 Partial Taking. In the event that only a portion of the Sports Facility is condemned,
this Agreement shall terminate as to the part so taken as of the date the condemning authority takes
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title or possession, whichever first occurs; provided, however, that if so much ofthe Sports Facility
is taken by such condemnation as would substantially and adversely affect The Phillies' operations
at the Sports Facility, The Phillies shall have the option, to be exercised in writing within one
hundred eighty days after the City shall have given The Phillies written notice ofthe condemnation
(or in the absence of such notice, within one hundred eighty days after the condemning authority
shall have taken possession), to terminate this Agreement as of the date the condemning authority
takes such possession. If The Phillies does not give timely notice to terminate, this Agreement shall
remain in full force and effect as to the remainder of the Sports Facility that is suitable for the use
then being made of the Sports Facility by The Phillies; if and so long as The Phillies deem it
advisable, The Phillies may utilize alternative facilities; and the City shall, to the extent of
condemnation proceeds received by it, acquire or add adjacent property and construct additional
Improvements with reasonable diligence, in order to restore the Sports Facility as nearly as possible
to the condition immediately before the condemnation. Whether this Agreement terminates or
continues in full force or effect, The Phillies shall have no claim to the award in condemnation for
the City's interest in the Sports Facility; provided, however, that The Phillies shall have a claim to
the portion ofthe award in condemnation that represents compensation for the taking ofthe interest
of The Phillies under this Agreement, including without limitation its right to retain net revenues
from the operation thereof.
15.3 Failure To Repair. Ifthe City is obligated to make the Sports Facility suitable for use
by The Phillies following a condemnation under the provisions of this Section 15 and does not
commence to acquire or add adjacent property or construct additional Improvements necessary to
do so within ninety days after the date of the condemnation, or if the City commences such
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acquisition or construction but does not prosecute the same diligently to completion, the City shall
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 ofthe 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 ofthe actual
costs thereof by 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. 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 another MLB club; provided, however, that such transferee shall assume the obligations of
The Phillies under this Agreement.
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16.1.3 No transfer under this Section 16 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 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 monetary failure; and (ii) thirty days to cure any non-monetary default;
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
period and thereafter proceeds with reasonable diligence to cure said failure.
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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;
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 for recovery of all actual losses, costs and reasonable attorneys' fees
incurred by the Defaulting Party in connection with the default.
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17.4 Iniunctive Relief. Without limiting any other remedies of the City on account of a
Default by The Phillies hereunder, The Phillies further acknowledges 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 Home Games at, any locations other than
the Sports Facility during the Term otherwise than as provided or permitted by this Agreement.
Accordingly, The Phillies hereby agree that in the event of such a violation or threatened violation
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 reliefto 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 The Phillies'
spring training activities to, or the playing of Home Games at, any location other than the Sports
Facility, and 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.
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
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and delivery of this 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 By The 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 ofthis 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 ofthe date of such certification (i) certifying
that this Agreement is unmodified and in full force and effect (or if modified, stating the nature of
such modification and certifying that this Agreement, as so modified, is in full force and effect), (ii)
acknowledging that there are not, to the responding party's knowledge without inspection, audit or
investigation, any uncured defaults on the part of the requesting party (or specifying such defaults,
if any are claimed), and (iii) providing such other information regarding this Agreement as may
reasonably be requested by the requesting party. Any such statements may be conclusively relied
40
upon by any prospective purchaser or encumbrancer of The Phillies or of its interests herein and by
any bond holders, underwriters and financiers of the City.
19.2 Consents. Whenever a party's approval, permission, concurrence, consent or
satisfaction is required under this Agreement, such approval, permission, concurrence, consent or
satisfaction shall not be unreasonably withheld or delayed, except as and to the extent expressly
provided to the contrary in this Agreement; provided, however that neither party shall be required
to waive a Default hereunder.
19.3 Additional Instruments. The parties agree to execute and deliver any instruments in
writing, necessary to carry out any agreement, term, condition or assurance in this Agreement,
whenever the occasion shall arise and reasonable request for such instrument shall be made. In
addition, as soon as practicable following the Commencement Date hereunder, the parties shall
execute a written supplement to this Agreement setting forth such Commencement Date. With
respect to the City, any obligations pursuant to this Section 19.3 shall be subject to obtaining any
required governmental approvals.
19.4 Force Maieure. A party shall not be in Default under this Agreement if and to the
extent it is unable to fulfill any of its obligations under this Agreement because it is prevented,
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").
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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 City:
City of Clearwater
112 South Osceola Avenue, 3rd Floor
Clearwater, Florida 33756
Attention: City Manager
With a copy to Counsel for 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
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.
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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.
19.10 Entire Agreement. This Agreement and the SFDA, together with the attached
exhibits and simultaneous writings, contain the entire agreement and understanding between the
parties relating to its subject matter. There are no oral understandings, terms or conditions, and
43
neither party has relied on any representation, express or implied, not contained in this Agreement
or in simultaneous writings. All prior understandings, terms or conditions are deemed to merge in
this Agreement, and this Agreement cannot be changed or supplemented orally, but only by an
agreement in writing and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Without limiting the generality of the foregoing, this Agreement
and the SFDA replace and supersede that certain Clearwater Stadium Project Term Sheet dated
September 8, 2000 by and between the City and The Phillies in its entirety and such Term Sheet is
hereby terminated.
19.11 Severability. If any provision of this Agreement shall be declared invalid or
unenforceable, the remainder of this Agreement shall continue in full force and effect.
19.12 Captions. The headings of this Agreement are for convenience only and shall not be
deemed a part of this Agreement, nor shall they be deemed to affect the meaning or construction of
any portion of this Agreement.
19.13 Time of Essence. Time is of the essence of this Agreement.
19.14 Interest on Delinquent Amounts. Any amounts owing from one party to the other
party under this Agreement and not paid when due shall bear interest from and after the due date at
the Default Rate until paid, provided however, that no such interest shall accrue on any City
obligation to pay until the expiration of 45 days after the date such payment is due.
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.
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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) in the same or a separate action or proceeding.
19.19 Amendment. All waivers of the provisions of this 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. Exhibit A is attached hereto and incorporated by this reference thereto.
19.22 Liability Limitation. Except as otherwise provided herein, no individual who is a
general partner of The Phillies, or a member of the 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.
45
.
20. Conditions.
20.1 Conditions Precedent to Parties' Rights and Obligations. All ofthe parties' respective
rights and obligations under this Agreement are expressly conditioned upon the occurrence of the
following, each by the date respectively indicated:
20.1.1 Issuance of Certification from the Florida Office of Tourism regarding a
"retained spring training franchise facility" shall have issued by January 2,2001.
20.1.2 The specific site for the Sports Complex shall by February 15, 2001 have been
agreed to by the parties and reflected upon a detailed site plan initialed by the parties, which shall
become Exhibit B to this Agreement.
20.1.3 The parties shall, within 15 days following satisfaction of the conditions in
Section 20.1.2, have: (i) executed and delivered a definitive SFDA; (ii) have agreed upon a detailed
Scope ofW ork, an initialed copy of which shall become Exhibit C to this Agreement; and (iii) have
executed and delivered a definitive lease for the Carpenter Complex, which will terminate the
existing lease dated September 26, 1966, as amended, and which: (x) shall be for a term coextensive
with the Term; (y) shall conform to the relevant allocation provisions ofthis Agreement; and (z) call
for fixed rent in arrears at the annual rate of $204,000 for 20 years from the start ofthe Term.
20.2 Waiver. Each ofthe conditions precedent specified in Sections 20.1 and 20.4 may
only be waived in a writing duly executed and delivered by both parties; provided, however, that The
Phillies may, by written notice to City, extend from time to time each of the dates specified in
Section 20.1.
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\" ,,~I ..
..
20.3 Satisfaction Date. The date on which the last of all of the conditions precedent
specified in Section 20.1 has been duly satisfied or duly waived is herein referred to as the
"Satisfaction Date."
20.4 Further Condition Relating to Litigation. If on the Satisfaction Date any litigation
other than bond validation proceedings is pending to restrain or enjoin the performance of this
Agreement and/or of the SFDA and/or of any material aspect of either and/or to seek material
damages in respect thereto and is neither withdrawn nor dismissed with prejudice by October 1,
2001, either party may (but need not) elect to terminate this Agreement by written notice given
within 30 days thereafter.
21. Marketing Programs. The Phillies and the City hereby agree that The Phillies will provide
trade out value in marketing programs to match the financial contributions made by Pinellas County
toward the funding ofthe Sports Facility. These marketing trade out programs may include, but are
not limited to destination advertising, tourism public relations campaigns, tourism direct sales
activities and/or other marketing programs mutually agreed upon between the Pinellas County
Convention and Visitors Bureau and The Phillies. Representatives of The Phillies and the
Convention and Visitor's Bureau shall meet as often as they mutually determine to be needed (but
at least annually) to agree to a specific program of destination marketing and/or ticket opportunities
ofthe trade out program for the upcoming calendar year. This marketing trade out program shall be
the sole responsibility of The Phillies.
47
t" .
"
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe date
first above written.
THE CITY OF CLEARWATER, FLORIDA
By:
&--- 46~
Bnan Aungst, Mayor .
B~~~;;-J1_
City Manager
ATTEST:
,~I#O
fJ~T. City r ...
Approved as to form and
legal sufficiency
'rfi~;/...d1i-
City Attorney tJ
THEPHILLIES
By: f)~QMh
David P. Montgomery,
General Partner
48
. ..
.,.
EXHIBIT A
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 of three persons selected by the parties from a list of eleven persons, each of whom must
have at least ten years of experience in the stadium/arena management business furnished by the
Florida Chapter of the American Arbitration Association. The Panel of three 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 ofthe 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. Ifthe 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,
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
III
... ~ '1--)>. ..~
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.
11